10 February 2009

SAHA concerned about outcome of Constitutional Court decision for Biowatch

SAHA’s Freedom of Information Programme (FOIP) declared its support today for Biowatch as it prepares to take its case to the Constitutional Court on 17 February 2009.

The small non-profit organisation will appeal the costs order earlier granted against it by the Pretoria High Court. This should be the final stage of a lengthy legal battle over gaining access to information in terms of PAIA in relation to the status of genetically modified crops in South Africa. SAHA’s FOIP warns of the dangerous precedent that such a decision, if not over-turned, could set at this crucial time in South Africa’s democracy.

"SAHA has kept a close eye on the Biowatch case," said FOIP’s Project Manager, Charlotte Young. "There is much to celebrate in terms of what has been achieved. The outcome of this one final battle will have huge implications in terms of the effective implementation of PAIA: should Biowatch’s appeal be refused, this will be a huge step backwards, not just for Biowatch but for many other small non-profit organisations fighting similar battles".

Court papers were first served by Biowatch on the Minister of Agriculture and others in 2002, demanding access to information as guaranteed by the Promotion of Access to Information Act, the Genetically Modified Organisms Act, the National Environmental Management Act and the Constitution.

The Pretoria High Court heard the case in 2004 and in February 2005, acting Judge Dunn ordered that Biowatch be given access to eight of the eleven categories of information listed in its PAIA Request. Judge Dunn stated 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.

Yet, Judge Dunn also 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.

As a small non-profit organisation this judgement was devastating: Biowatch simply cannot afford to pay these legal costs. 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.

The Constitutional Litigation Unit of the Legal Resources Centre (LRC) then stepped in to represent Biowatch in an appeal against the costs order before a full bench of the Pretoria High Court. In November 2007, Biowatch received another blow when the majority judgement dismissed the appeal and ordered Biowatch to pay the additional costs to the appeal.

However, in May 2008, Judge Poswa handed down a comprehensive minority judgment 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.

For information on this case: http://www.biowatch.org.za/main.asp?include=docs/courtcase.html