03 June 2009

SAHA congratulates Biowatch

SAHA is pleased to proclaim its congratulations to Biowatch for its landmark PAIA victory. The eleven Constitutional Court judges today voted unanimously to set aside the costs order awarded against Biowatch in favour of Monsanto as well as awarding legal costs in the High Court in favour of Biowatch and against the state.

Constitutional Court Justice Albie Sachs handed down the judgment stating that the case is "a matter of great interest to the legal profession, the general public, and bodies concerned with public interest litigation".

In 2000, Biowatch, a small South African NGO campaigning in the public interest for sustainable agriculture, biodiversity, biosafety and farmers' rights, submitted a PAIA Request for access to records containing official information about the planting of GM crops in South Africa. Their PAIA Request and subsequent internal appeal were refused, forcing Biowatch to litigate in the High Court. The presiding judge ruled that Biowatch be given access to 8 out of 11 categories of requested information. He also ruled that Monsanto - a giant multinational pushing GM crops onto the South African market - had been forced to join the case and that Biowatch should therefore pay its legal costs. Despite attempts to appeal this ruling in the High Court and the Supreme Court of Appeal in Bloemfontein Biowatch had, to date, been unsuccessful. Yet they never gave up: exercising the costs order would have weakened Biowatch as an effective NGO, if not forcing it to shut down completely.

This case concerns constitutional rights and thus Biowatch, represented by the Legal Resource Centre, took its case to the Constitutional Court. Today Justice Sachs stated his conviction that the High Court had failed to consider the constitutional implications in the matter of costs. High Court judges normally have full discretion in the matter of costs awards. However, in this case, where constitutional rights were threatened it was essential for the Constitutional Court to make judgment. Justice Sachs said that the High Court's decision was "demonstrably inappropriate on the facts, and unduly chilling to constitutional litigation in its consequences."

This case demonstrates the strength of South Africa's legal system and gives confidence to organizations such as SAHA: it offers reassurance that litigating in cases relating to access to information and access to other human rights will not necessarily result in crippling costs orders. For those operating within the judiciary it sends an unambiguous message: constitutional rights must be taken into account when costs orders are made.

For further details about the Biowatch case.