ZONDI AJ their objective terms are consistent with public policy.74 It must be accepted that the agreement on costs liability concluded between the applicants and the Estate cannot be said to be in any way against public policy. It may be enforceable at the instance of an aggrieved party. The difficulty for the Estate is that we are concerned here with a contract, the application of which goes beyond the confines of the primary parties. Its terms affect the rights of the litigants who are not parties to the agreement. The High Court was therefore correct in holding that it was not bound by the agreement entered into between the applicants and the Estate in relation to costs where the agreement affected third parties, such as the Minister. The Minister was a party to the proceedings and for that reason his consent had to be secured for the conclusion of the agreement that sought to settle the disputed issues between the parties. It is not in dispute that the Minister had not agreed to the conclusion of the agreement by which it was sought to settle liability for costs between the applicants and the Estate. Liability for costs was an issue in which the Minister had a substantial interest. This ground of appeal should therefore fail. [87] The alternative argument advanced by the Estate is one based on the Biowatch75 principle. The contention is that this application is not one of private litigation in which the ordinary rules pertaining to costs orders apply. The Estate argues it is a matter of constitutional litigation, which therefore means that the High Court‘s discretion on costs must be exercised in accordance with the special rules relating to costs in constitutional litigation and where necessary, to adapt substantially the common law rules relating to costs. In relation to the approach to the exercise of discretion in constitutional litigation in which the state is a primary role-player this Court in Biowatch had this to say: ―[T]he general point of departure in a matter where the [s]tate is shown to have failed to fulfil its constitutional and statutory obligations, and where different private parties are affected, should be as follows: the [s]tate should bear the costs of litigants who have been successful against it, and ordinarily there should be no costs orders against any 74 Barkhuizen above n 69 at paras 57 and 87. 75 Biowatch above n 71. 36