The final chapter in a seven-year court battle has ended with a positive outcome in the Constitutional Court for the NGO Biowatch. It importantly signals a welcome precedent for all future public interest litigants.The judgment overturns a costs order awarded by the Pretoria High Court to Biowatch, a food security and biodiversity NGO, and effec¬tively frees the activists from legal bills estimated to run to about R500 000 - an amount that would have forced the organisation to fold.

Biowatch had found itself in court after it had first requested the Department of Agriculture (DoA) to release information regarding field tri¬als and permits for genetically modified organism (GMO) crops in South Africa in 2000, using the Promotion of Access to Information Act. Two years later, after no response, Biowatch served the Minister of Agriculture, the GMO executive council and GMO registrar with court papers.The following year, multinational GMO giant Monsanto joined the State as a co-respondent, saying it had to protect its confidential business informa¬tion held by the DoA.

In 2004, the case came before the Pretoria High Court. The ruling the following year granted Biowatch access to most of the information it had sought, but ruled that Biowatch had to pay Monsanto`s legal costs.
Other NGOs then joined the Biowatch challenge. An adverse ruling for Biowatch, they said, would impact negatively on all public interest liti¬gants in the future.

The risk of having to foot hefty costs, even in public interest legal cases and in cases where they were successful, would hamper the spirit of activism and the freedom of NGOs and other public interest bodies to access the courts without fear.But that same year, a Supreme Court appeal by Biowatch also failed, prompting the Concourt action heard in February this year.

In handing down judgment yesterday, Justice Albie Sachs said the case was of great legal interest and also great interest to the public. He said the case was more accurately about the approach that courts should adopt when making cost awards in consti¬tutional litigation. Justice Sachs said it was clear that in the Biowatch case, the High Court "had misdirected itself in not giving appropriate attention to the fact that this was a constitu¬tional matter in which Biowatch was seeking to vindicate constitutional rights". He ruled that the State should pay Biowatch`s costs and the costs award against Biowatch in favour of Mon¬santo, be set aside.

UFRIEDA HO