On 17 February Biowatch, will appeal the costs order earlier granted against it by the Pretoria High Court at the Constitutional Court.  This should be the final chapter in a long-standing legal battle over gaining access to information pertaining to the status of genetically modified crops in South Africa.

The legal battle began in 2002 when Biowatch served court papers on the Minister of Agriculture and others, demanding access to information as guaranteed by the National Environmental Management Act, the Genetically Modified Organisms Act, the Promotion of Access to Information Act and the Constitution.

The case was heard in 2004 in the Pretoria High Court and in February 2005, acting Judge Dunn ordered that Biowatch be given access to eight of the eleven categories of information listed in its request. He said that Biowatch had a constitutional right to the information requested, that access to the information was in the public interest and that Biowatch had been forced to approach the court for access to the information.

However, the Judge ordered that Biowatch pay the costs of Monsanto, a large supplier of seeds for genetically modified crops and agri-chemicals, which joined the court proceedings to oppose the application of Biowatch on the basis of confidentiality.

This was a devastating blow for Biowatch, which, as a small non-profit organisation cannot afford to pay the legal costs that were awarded to Monsanto. Apart from being contrary to customary practice (which is to award costs to the successful party and against the unsuccessful party), there was concern that the costs order would set a dangerous precedent, which might discourage litigation in the public interest by environmental watchdogs such as Biowatch.

At this stage the Constitutional Litigation Unit of the Legal Resources Centre (LRC) stepped in to represent Biowatch in an appeal against the costs order before a full bench of the Pretoria High Court.  The majority judgement (Judge Mynhardt and Judge Molopo-Sethosa), handed down in November 2007, dismissed the appeal and ordered Biowatch to pay the additional costs to the appeal, a further devastating blow to Biowatch.

However Judge Poswa handed down a comprehensive minority judgment in May 2008, recommending that the costs orders against Biowatch be overturned. This judgment provided a basis for further appeal.

In September 2008, the Supreme Court of Appeal dismissed Biowatch’s application for leave to appeal against the high court order with costs.

In the Constitutional Court, Biowatch and the LRC will be joined by three other non-profit organisations: the Centre for Child Law at the University of Pretoria, Lawyers for Human Rights and the Centre for Applied Legal Studies, who have an interest in the outcome of the appeal. They have joined in the proceedings as friends of the court.

Achmed Mayet of the LRC said that the issue of costs in public interest litigation is an important constitutional principle. ‘It impacts on the constitutional rights of access to the courts, the environment and access to information, and if allowed to stand the court order of the court a quo will have a chilling effect on public interest litigation.

What started in 2000 as a seemingly simple request for information from the Department of Agriculture about the status of genetically modified crops, has resulted in a lengthy legal process with Biowatch fighting for its survival. This case is not only important for those acting in the interests of the environment, but for all other public interest bodies’, said Rose Williams of Biowatch.