CONSTITUTIONAL COURT OF SOUTH AFRICA
The Trustees for the time being of the Biowatch Trust v The Registrar, Genetic Resources, The Executive Council for Genetically Modified Organisms, The Minister
for Agriculture, Monsanto South Africa (Pty) Ltd, Stoneville Pedigreed Seed Company and D&PL SA South Africa Inc (the Centre for Child Law, Lawyers for
Human Rights and the Centre for Applied Legal Studies as amici curiae).
Case CCT 80/08 Date of hearing: 17 February 2009
MEDIA SUMMARY
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday 17 February 2009, the Constitutional Court will hear an application for leave to appeal against a decision of the Pretoria High Court in which an adverse costs order was made against the applicant (Biowatch).
Biowatch, a public interest NGO working in the field of biodiversity, food security and social justice, launched an application in the High Court, requesting the Registrar, Genetic Resources, the Executive Council for Genetically Modified Organism and the Minister of Agriculture (first to third respondents) to provide it with information relating to Genetically Modified Organisms (GMOs). Some of the information sought by Biowatch had been provided to the first to third respondents by Monsanto, a company working in the field of GMOs. Monsanto joined the litigation by consent and opposed the relief sought by Biowatch. The High Court decided a number of issues in favour of Biowatch. It held, however, that because of the manner in which it had litigated, it should not receive its costs from the government respondents, and should pay Monsanto’s legal costs.
Biowatch appealed against the costs orders to the Full Court of the Pretoria High Court, which dismissed the appeal on the basis that Dunn AJ did not commit a material misdirection in making the costs orders that he did. Biowatch then unsuccessfully petitioned the Supreme Court of Appeal. It now seeks leave to appeal against the costs order and ask for an order that the first to third respondents should pay its legal costs, and that Monsanto should pay its own costs.
In this Court, Biowatch argues that Dunn AJ, in exercising his discretion in respect of costs, committed a number of misdirections. In particular he did not adequately take into account the principle of access to justice and the importance of public interest litigation. It argues that the right of access to courts will be unjustifiably infringed, and public interest litigation severely curtailed, if public interest litigants are not afforded a measure of protection against adverse costs orders.
Monsanto is the only respondent opposing the application. It contends that Biowatch conducted itself in a vexatious and oppressive fashion before the lower court, and that Dunn AJ was therefore entitled to make the costs orders that he did. Moreover, there are no exceptional circumstances as required by statute for hearing an appeal solely against an award of costs.
The Centre for Child Law, Lawyers for Human Rights and the Centre for Applied Legal Studies have been admitted as friends of the court. They align themselves generally with the position of Biowatch and submit further argument as to why public interest litigants should be protected against adverse costs orders.
