Watch the Biowatch case

February 16th, 2009

It is worth keeping an eye on the Constitution Court fight this week between corporate giant Monsanto and the NGO Biowatch, because it will define the space that NGO’s have to use the legal system.

Biowatch won a freedom of information case against a very large company, Monsanto, back in 2005 but the court ordered costs against Biowatch, effectively crippling them. It seemed punitive, as Biowatch had done no more than pursue a right to information about genetically modified crops. A massive costs order of this sort would make it impossible for others to use the courts in pursuit of their rights, even when they have a winning case.

According to Biowatch, the legal battle began when they served court papers on the Minister of Agriculture and others, demanding access to information in terms of the National Environmental Management Act, the Genetically Modified Organisms Act, the Promotion of Access to Information Act and the Constitution.

The case was heard in 2004 in the Pretoria High Court and in February 2005, Acting Judge Dunn ordered that Biowatch be given access to eight of the eleven categories of information listed in its request. He said 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.

However, the Judge 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.

“This was a devastating blow for Biowatch, which, as a small non-profit organisation cannot afford to pay the legal costs that were awarded to Monsanto. 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.”

Fortunately, others such as the Legal Resources Centre (LRC), joined Biowatch in fighting this. They lost an appeal before full bench of the Pretoria High Court. This was then taken to the Supreme Court of Appeal, who turned it down. Now it is being taken to the highest court.

Also with them, as friends of the court, are the Centre for Child Law at the University of Pretoria, Lawyers for Human Rights and the Centre for Applied Legal Studies.

There can be no doubt that the question of costs can have a massive chilling effect on individuals and organisation’s pursuit of their rights in the courts. As Rose Williams, of Biowatch said: ‘What started in 2000 as a seemingly simple request for information from the Department of Agriculture about the status of genetically modified crops, has resulted in a lengthy legal process with Biowatch fighting for its survival. This case is not only important for those acting in the interests of the environment, but for all other public interest bodies.’

Entry Filed under: Anton Harber, Journalism, Media regulation