Constitutional Court orders state to pay costs in GM case

The Constitutional Court has ordered the state to pay legal costs incurred by environmental watchdog, the Biowatch Trust, in its quest for information about the genetic modification of organic material.

The case revolved only around the proper judicial approach to determining costs awards in constitutional litigation, Justice Albie Sachs wrote in a judgement of a unanimous court, delivered on Wednesday.

Biowatch had applied to the Constitutional Court to appeal against two unfavourable costs decisions in the High Court in Pretoria, after being refused leave by the Supreme Court of Appeal.

In the first matter, a dispute between Biowatch and certain governmental bodies, the High Court found the registrar for genetic resources was in default of his responsibilities and made several orders in favour of Biowatch, Sachs noted.

“But, to mark its displeasure at what it regarded as inept requests for information ... the High Court decided to make no costs order against the governmental bodies in Biowatch’s favour.”

He found that in depriving Biowatch of costs, the High Court—which usually awarded costs to successful applicants—failed to properly measure the trust’s victory, that it involved a constitutional matter, or the “chilling effect” the move would have.

“The omission of the constitutional dimension constitutes a serious misdirection.”

Sachs pointed out that the greater the controversy, the more need for transparency and “manifest fidelity” to the principles of the Constitution.

Any ineptitude in the framing of Biowatch’s requests “fell far short” of the kind of misconduct which would have justified a costs award against it, he held.

He ordered that the state pay Biowatch’s costs in both the High Court and the Constitutional Court.

In the second matter, the High Court had held that the intervention in the case by Monsanto, a multinational biotechnology company’s South African arm, was compelled by Biowatch’s conduct, specifically its need to bar Biowatch from accessing the confidential information the company had given the registrar.

“Because of its displeasure at the lack of precision as to the information sought by Biowatch, the [High] Court ordered Biowatch to pay Monsanto’s costs,” Sachs wrote.

He found that, generally, where parties were affected by the state’s failure to fulfil its constitutional and statutory obligations, the state should bear the costs of litigants who had been successful against it, with no cost orders against any private litigants which became involved.

In this instance, he ruled the costs award in favour of Monsanto “unsustainable”.

“No order at all should have been made between two private parties involved in the matter.”

He ordered that the High Court order requiring Biowatch to pay Monsanto’s costs be set aside, with no costs order in respect of Monsanto’s participation.

“The form of Biowatch’s request for information did not justify the two decisions on costs made by the High Court,” Sachs found.

“The High Court could have shown its disapproval in less drastic ways.
The manner it chose was demonstrably inappropriate on the facts, and unduly chilling to constitutional litigation in its consequences.” - Sapa

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