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The long awaited judgment in the matter of the trustees for the time being of the Biowatch Trust ("Biowatch") vs. The Registrar: Genetic Resources & Others was handed down in the Constitutional Court on 3 June 2009. Judge Sachs set aside certain costs orders awarded against Biowatch in the lower courts as more fully set out hereunder.
It should be noted that although the Court recognised the importance of public interest litigation and environmental concerns, these were not the determining factors in this decision and the main consideration pertains to the advancement of constitutional and, by implication, administrative justice.
In short, in order to address issues of concern with the Genetically Modified Organisms Act 15 of 1997, Biowatch requested certain information from the National Department of Agriculture ("NDA") in addition to the Registrar of Genetically Modified Organisms. Most of the information requested was not forthcoming. Biowatch accordingly proceeded to serve papers on the NDA requesting access to information in terms of section 32(1) of the Constitution[1]. Biowatch further relied on the provisions of the National Environmental Management Act 107 of 1998 ("NEMA") in support of its request for information which it argued was in the public interest and which sought to facilitate, inter alia, the protection of environmental rights. The single bench of the High Court (TPD) held that Biowatch had a constitutional right to the information requested and that such access was in the public interest. However, it awarded an adverse costs order against Biowatch to pay Monsanto South Africa (Pty) Ltd ("Mosanto's") costs who joined the proceedings to protect its confidential business information which may have been part of the information sought. No order was made regarding payment of Biowatch's legal costs despite confirmation from the Court that Biowatch was forced to institute legal proceedings to gain such access. on Appeal to a full bench of the TPD with regards to the adverse costs order, the majority judgment dismissed Biowatch's appeal and ordered Biowatch to pay the legal costs of the Minister of Agriculture, the Registrar of Genetic Resources, the Executive Council for GMO's and Mosanto in that matter over and above the legal costs order of Mosanto in the initial application. Biowatch then appealed to the Supreme Court of Appeal who dismissed the appeal with costs. Accordingly, Biowatch appealed to the Constitutional Court.
Whilst the Constitutional Court judgment deals predominantly with the issue of costs awards in constitutional litigation, the extent of which is not fully canvassed herein, the judgment can be summarised as follows:
- The court has jurisdiction to consider the award of costs raised in a constitutional matter.
- It is not necessary for exceptional circumstances to exist for appeals solely on costs as required in terms of section 21A of the Supreme Court Act 59 of 1959, amongst others, because this Act is not binding on the Constitutional Court and the case raised matters of special constitutional concern.
- The nature of the issues that needs to be assessed is that equal protection under the law requires that costs awards not be dependant on whether the parties are acting in their own interests or the public interest, nor should the determination be whether or not the parties are financially well endowed or indigent but rather the way in which a costs order would hinder or promote the advancement of constitutional justice. The protection of environmental rights depends not only on the diligence of public officials but also the existence of a lively civil society willing to litigate in the public interest as adverted to in section 31 of the NEMA. It was held that what matters is not the nature of the parties or the causes they advance but the character of the litigation and their conduct in pursuit of it.
- As a general rule in constitutional litigation, an unsuccessful litigant in proceedings against the state should not be ordered to pay costs. Where the state is successful, each party should bear its own costs and where the state is unsuccessful, it should bear the costs of the other side. The Court cited three reasons for this general rule, with one of the reasons being that the state bears primary responsibility for ensuring both the law and state conduct are consistent with the Constitution.
- The officials in the matter to hand did not fulfil their constitutional and statutory duties in providing information. The persistent failure by the government authorities to provide legitimately sought information resulted in Biowatch litigating.
- Constitutional issues were implicated in two ways. Firstly, the right to information conferred in terms of section 32 of the Constitution and secondly, the information sought concerned environmental rights protected by section 24 of the Constitution. It was the government's duty to act as impartial steward and to be objective. The greater the public controversy, the more the need for transparency and fidelity to the principles of the Constitution, as ultimately given effect to by PAIA. The High Court should not be required to balance interests which the government authorities should have undertaken in the first place.
It was finally held therefore that as a result of the root cause of the dispute being the stubbornness of the state officials' refusal to supply information which they were duty bound to give, the Court upheld the appeal and ordered the state to pay Biowatch's costs in the High Court and in the Constitutional Court and that the order requiring Biowatch to pay Mosanto's costs be set aside.
Tandina Charters
Associate
For the complete judgment, please select this link.
[1] At the time of requests for information in this matter, the Promotion of Access to Information Act 2 of 2000 ("PAIA") was not yet in force.
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