Court dismisses estate agency's appeal bid over costs order

JOHANNESBURG - The Gauteng High Court in Johannesburg has dismissed an application by estate agency ZAP Hub (Pty) Ltd for leave to appeal against a costs order arising from an unsuccessful urgent application against the Property Practitioners Regulatory Authority (PPRA) and the Minister of Human Settlements.

Judge S.D.J. Wilson dismissed the application with costs, ruling that ZAP Hub had failed to demonstrate the existence of a constitutional issue that would justify protection from an adverse costs order.

The ruling follows an earlier judgment handed down on June 9, 2026, in which the court struck ZAP Hub's urgent application from the roll and ordered the company to pay costs.

While ZAP Hub accepted that the matter had been correctly removed from the urgent roll, it challenged the costs order, arguing that the court should have applied the principle established in Biowatch Trust v Registrar, Genetic Resources.

The Biowatch principle generally shields litigants acting in good faith on constitutional matters against the state from adverse costs orders.

However, Judge Wilson rejected the company's argument on several grounds.

Firstly, he found that no clearly defined constitutional issue had been placed before the court.

"The applicant is a private company, operating as an estate agent which primarily markets rental properties to the general public," the judge said.

According to the judgment, ZAP Hub sought to compel the regulatory authority to take action against certain third parties who were not joined to the proceedings.

Judge Wilson found that the application was motivated by commercial interests, with the company arguing that its business operations were suffering due to the authority's alleged failure to act.

Although the company's founding papers made reference to Section 22 of South Africa's Constitution, which protects freedom of trade, occupation and profession, the court found that no constitutional issue had been properly articulated.

"Although there is a passing reference to section 22 of the Constitution, 1996 in the applicant's founding papers, the constitutional issue, if there was one, was nowhere defined," Wilson said.

The court also noted that ZAP Hub was seeking relief affecting other commercial entities for commercial purposes, adding that there were no significant constitutional considerations involved in the dispute.

Judge Wilson further criticised the manner in which the urgent application had been brought before the court.

While ZAP Hub conceded that the matter should not have been treated as urgent, the judge said the concession understated the seriousness of the deficiency.

"This was not a case in which the urgency claimed was arguable but weak," he said.

The court found that the company had failed to provide a factual basis demonstrating why relief could not have been sought through ordinary court procedures.

Judge Wilson described the urgent application as "clearly inappropriate" and referred to the Constitutional Court's ruling in Lawyers for Human Rights v Minister in the Presidency, which recognised that litigants may face adverse costs orders where urgent constitutional litigation is manifestly inappropriate.

"It was for these reasons that I refused the application for leave to appeal with costs," the judge ruled.

The decision means the original costs order against ZAP Hub remains in place.