The Constitutional Court has upheld a landmark ruling on decision-making regarding genetically modified organisms, marking the end of a decade-long legal battle mounted by the African Centre for Biodiversity (ACB) against the government and multinational seed giant Monsanto. (Wikimedia Commons)
The Constitutional Court has upheld a landmark ruling on decision-making regarding genetically modified organisms (GMOs), marking the end of a decade-long legal battle mounted by the African Centre for Biodiversity (ACB) against the government and multinational seed giant Monsanto, now Bayer.
In its decision on 4 November, the 11 judges of the country’s highest court dismissed, with costs, an application for leave to appeal by the minister of agriculture, forestry and fisheries, the director-general of the department, the executive council for genetically modified organisms, and the GMO appeal board.
“The Constitutional Court has considered the application for leave to appeal. It has concluded that the application should be dismissed with costs as it bears no reasonable prospects of success,” the court said in its brief ruling.
The ruling means that the groundbreaking judgment of the Supreme Court of Appeal (SCA) in October last year, which set aside the commercial approval of a drought-tolerant genetically modified maize variety, MON87460, now stands as final.
The SCA’s decision, handed down by a full bench of five judges, overturned several layers of government approvals for Monsanto’s application to release MON87460 commercially.
The court found that the executive council established under the GMO Act had failed to follow mandatory legal procedures, particularly in assessing whether an environmental impact assessment was required before approving. It ruled that the executive council’s decision — along with subsequent appeals and ministerial confirmations — was unlawful.
As a result, the SCA ordered that Monsanto/Bayer’s application be remitted to the executive council for proper reconsideration in accordance with the country’s environmental and biosafety laws.
The litigation was launched by the ACB, a research and advocacy non-profit, represented by Legal Aid South Africa.
The ACB challenged the legality of decisions made between 2015 and 2016 approving the release of genetically modified maize. Judge Ronel Tolmay initially dismissed the ACB’s case in the high court in June 2023, but she granted leave to appeal — paving the way for the SCA’s ruling in October 2024.
While the government and its statutory bodies sought to overturn the SCA’s judgment through their Constitutional Court application for leave to appeal, the latest decision closes the matter.
“The original judgment of the Supreme Court of Appeal on 22 October 2024, in the ACB’s case against Monsanto/Bayer and the state, stands,” the ACB said.
“This historic decision was challenged by the minister of agriculture et al., seeking to overturn a first-ever judicial ruling regarding GMO decision-making in South Africa.”
The ACB welcomed the Constitutional Court’s decision with “great relief”, as it put to rest a decade-long saga and represents a significant step forward in protecting South Africa’s agricultural future, biodiversity, and the rule of law.
“The findings and decisions of both the SCA and the Constitutional Court — the highest court in the country — are precedent-setting in South Africa concerning GMO decision-making processes and will bind the state regarding future decision-making concerning the environmental release of GMOs,” the ACB said.
The ruling will help end the “rubber-stamping” of GMO approvals and ensure that environmental impact assessments are considered adequately before genetically modified crops are released into the environment.
The non-profit expressed gratitude to Legal Aid South Africa for “working tirelessly on the matter over these long years”.