What is the future of public interest litigation in South Africa following the judgment in the Biowatch appeal? Public interest litigation is important in a democracy – it happens when a person or an organisation challenges government in court based on a constitutional right. Whether such challenges are successful or not, they clear up matters of a constitutional nature and therefore serve a good purpose in society. The Constitutional Court referred to this process as “ventilating” an issue – metaphorically opening the windows and letting some healthy fresh air (of constitutional litigation) flow into the issue. This positive aspect of public interest litigation has led to a trend by which such public interest litigants do not always have to pay the state’s legal costs if they are unsuccessful. (In general, the unsuccessful party usually pays the successful party’s costs.) This trend regarding costs is intended as an important empowering mechanism for citizens to overcome fear of the consequences of standing up for their rights in court.

This is why the Biowatch appeal has drawn quite keen interest from diverse organisations. Biowatch originally took government to court to get access to certain information regarding genetically modified organisms (GMOs). In spite of Biowatch litigating in the public interest, it ended with a cost order against it. This cost order has now been confirmed on appeal by a unanimous decision of a full bench of the High Court.

Whether one supports Biowatch’s anti-GMO position or not, all citizens should be concerned about the principle of empowering citizens to conduct public interest litigation. What is the impact of the full bench decision on future public interest litigation? To answer this question, we need to investigate not only the merits of Biowatch’s case, but – very importantly – the way in which it was conducted.

Firstly, I must comment on the sad state of media reporting in this regard: the whole Biowatch court saga was characterised by one-sided reporting in the media, with the reports mostly just a repeat (sometimes almost verbatim) of Biowatch’s own press statements. The latest report of 7 November 2007 in the Cape Argus following the appeal judgment is indicative of this one-sidedness and a general laziness to find the truth behind the story. The article did not mention any of the reasons why Biowatch lost, but (following Biowatch’s press statement) specifically highlighted that Biowatch acted in the public interest. Such journalism leaves the reader with an impression of possible unreasonableness on behalf of the court, and that public interest litigation has been dealt a blow by the judgment. (And it of course generates sympathy for Biowatch.) In contrast, the facts will clearly show that public interest litigation is under no threat, and that Biowatch alone is to blame for the cost order against it.

Let us start at the beginning: Biowatch applied to the High Court for an interdict to compel government to give it access to sensitive information regarding GMOs. It should be noted that Biowatch did not explore other reasonable avenues, such as the procedures provided in the GMO Act, to obtain the information – the organisation simply rushed to court. This is an important element that was considered by the court when making the cost order. Although activist organisations thrive on the media hype created by a court case, this is therefore a warning to such organisations first to exhaust other (lower-profile) reasonable avenues before engaging in litigation.

The rush to court is, however, only the first reason why Biowatch ended up with a cost order against it. The various demands for information from government were so unspecific and vague that they were in many instances void for vagueness. The demands were also so overly broad that it necessitated Monsanto, a private GMO producer, to add itself as a party to protect its rights. The court found Biowatch’s case to be “clearly oppressive and vexatious” and a “fishing expedition”. This is a powerful indictment against Biowatch, with which the full bench “wholeheartedly” agreed. A litigant that is found to institute legal proceedings on insufficient grounds and with the intention of causing annoyance to other parties must after all expect to end up with a cost order against it. Lesson two for future public interest litigation is therefore to give the same care to the preparation of the case than any reasonable litigant would.

The third reason why Biowatch was slapped with a cost order is the usual reason in civil litigation, namely that it lost against another private entity. Although Biowatch was partially successful against government, it was entirely unsuccessful against Monsanto, and was therefore ordered to pay Monsanto’s costs – not those of the government. Although Biowatch would like to portray itself as championing constitutional rights against large multinationals such as Monsanto, it goes without saying that Monsanto also has constitutional and other legal rights that must be upheld. Biowatch, for instance, demanded the exact coordinates of farms (of private farmers) who conduct field trials for Monsanto’s new GMO crops. A demand like this is completely unjustifiable and constitutes a clear infringement on Monsanto and these farmers’ privacy. Lesson three, therefore: if public interest litigation involves the interests of other private organisations or people, remember that they have rights too! In conclusion, the full bench judgment confirmed the position that unsuccessful applicants in public interest litigation are generally not liable to pay the state’s costs, but also made it clear that no one has immunity against a cost order – even in the case of public interest litigation. To grant such immunity would be to give carte blanche for vexatious legal proceedings (such as Biowatch’s case) to be instituted at will, which would obviously undermine justice. Biowatch argued in Court that it never contemplated getting a cost order against it. The Court’s answer was clear: nobody is above the law – including Biowatch.

– Written by Adv. Donrich Jordaan is Head of the Unit for Policy Studies at the Centre for International Political Studies (CiPS), University of Pretoria.

The views expressed in this paper are those of the author and do not necessarily reflect the views of the Centre for International Political Studies (CiPS) or the University of Pretoria

What is the future of public interest litigation in South Africa following the judgment in the Biowatch appeal? Public interest litigation is important in a democracy – it happens when a person or an organisation challenges government in court based on a constitutional right. Whether such challenges are successful or not, they clear up matters of a constitutional nature and therefore serve a good purpose in society. The Constitutional Court referred to this process as “ventilating” an issue – metaphorically opening the windows and letting some healthy fresh air (of constitutional litigation) flow into the issue. This positive aspect of public interest litigation has led to a trend by which such public interest litigants do not always have to pay the state’s legal costs if they are unsuccessful. (In general, the unsuccessful party usually pays the successful party’s costs.) This trend regarding costs is intended as an important empowering mechanism for citizens to overcome fear of the consequences of standing up for their rights in court.

This is why the Biowatch appeal has drawn quite keen interest from diverse organisations. Biowatch originally took government to court to get access to certain information regarding genetically modified organisms (GMOs). In spite of Biowatch litigating in the public interest, it ended with a cost order against it. This cost order has now been confirmed on appeal by a unanimous decision of a full bench of the High Court.

Whether one supports Biowatch’s anti-GMO position or not, all citizens should be concerned about the principle of empowering citizens to conduct public interest litigation. What is the impact of the full bench decision on future public interest litigation? To answer this question, we need to investigate not only the merits of Biowatch’s case, but – very importantly – the way in which it was conducted.

Firstly, I must comment on the sad state of media reporting in this regard: the whole Biowatch court saga was characterised by one-sided reporting in the media, with the reports mostly just a repeat (sometimes almost verbatim) of Biowatch’s own press statements. The latest report of 7 November 2007 in the Cape Argus following the appeal judgment is indicative of this one-sidedness and a general laziness to find the truth behind the story. The article did not mention any of the reasons why Biowatch lost, but (following Biowatch’s press statement) specifically highlighted that Biowatch acted in the public interest. Such journalism leaves the reader with an impression of possible unreasonableness on behalf of the court, and that public interest litigation has been dealt a blow by the judgment. (And it of course generates sympathy for Biowatch.) In contrast, the facts will clearly show that public interest litigation is under no threat, and that Biowatch alone is to blame for the cost order against it.

Let us start at the beginning: Biowatch applied to the High Court for an interdict to compel government to give it access to sensitive information regarding GMOs. It should be noted that Biowatch did not explore other reasonable avenues, such as the procedures provided in the GMO Act, to obtain the information – the organisation simply rushed to court. This is an important element that was considered by the court when making the cost order. Although activist organisations thrive on the media hype created by a court case, this is therefore a warning to such organisations first to exhaust other (lower-profile) reasonable avenues before engaging in litigation.

The rush to court is, however, only the first reason why Biowatch ended up with a cost order against it. The various demands for information from government were so unspecific and vague that they were in many instances void for vagueness. The demands were also so overly broad that it necessitated Monsanto, a private GMO producer, to add itself as a party to protect its rights. The court found Biowatch’s case to be “clearly oppressive and vexatious” and a “fishing expedition”. This is a powerful indictment against Biowatch, with which the full bench “wholeheartedly” agreed. A litigant that is found to institute legal proceedings on insufficient grounds and with the intention of causing annoyance to other parties must after all expect to end up with a cost order against it. Lesson two for future public interest litigation is therefore to give the same care to the preparation of the case than any reasonable litigant would.

The third reason why Biowatch was slapped with a cost order is the usual reason in civil litigation, namely that it lost against another private entity. Although Biowatch was partially successful against government, it was entirely unsuccessful against Monsanto, and was therefore ordered to pay Monsanto’s costs – not those of the government. Although Biowatch would like to portray itself as championing constitutional rights against large multinationals such as Monsanto, it goes without saying that Monsanto also has constitutional and other legal rights that must be upheld. Biowatch, for instance, demanded the exact coordinates of farms (of private farmers) who conduct field trials for Monsanto’s new GMO crops. A demand like this is completely unjustifiable and constitutes a clear infringement on Monsanto and these farmers’ privacy. Lesson three, therefore: if public interest litigation involves the interests of other private organisations or people, remember that they have rights too! In conclusion, the full bench judgment confirmed the position that unsuccessful applicants in public interest litigation are generally not liable to pay the state’s costs, but also made it clear that no one has immunity against a cost order – even in the case of public interest litigation. To grant such immunity would be to give carte blanche for vexatious legal proceedings (such as Biowatch’s case) to be instituted at will, which would obviously undermine justice. Biowatch argued in Court that it never contemplated getting a cost order against it. The Court’s answer was clear: nobody is above the law – including Biowatch.

– Written by Adv. Donrich Jordaan is Head of the Unit for Policy Studies at the Centre for International Political Studies (CiPS), University of Pretoria.

The views expressed in this paper are those of the author and do not necessarily reflect the views of the Centre for International Political Studies (CiPS) or the University of Pretoria

What is the future of public interest litigation in South Africa following the judgment in the Biowatch appeal? Public interest litigation is important in a democracy – it happens when a person or an organisation challenges government in court based on a constitutional right. Whether such challenges are successful or not, they clear up matters of a constitutional nature and therefore serve a good purpose in society. The Constitutional Court referred to this process as “ventilating” an issue – metaphorically opening the windows and letting some healthy fresh air (of constitutional litigation) flow into the issue. This positive aspect of public interest litigation has led to a trend by which such public interest litigants do not always have to pay the state’s legal costs if they are unsuccessful. (In general, the unsuccessful party usually pays the successful party’s costs.) This trend regarding costs is intended as an important empowering mechanism for citizens to overcome fear of the consequences of standing up for their rights in court.

This is why the Biowatch appeal has drawn quite keen interest from diverse organisations. Biowatch originally took government to court to get access to certain information regarding genetically modified organisms (GMOs). In spite of Biowatch litigating in the public interest, it ended with a cost order against it. This cost order has now been confirmed on appeal by a unanimous decision of a full bench of the High Court.

Whether one supports Biowatch’s anti-GMO position or not, all citizens should be concerned about the principle of empowering citizens to conduct public interest litigation. What is the impact of the full bench decision on future public interest litigation? To answer this question, we need to investigate not only the merits of Biowatch’s case, but – very importantly – the way in which it was conducted.

Firstly, I must comment on the sad state of media reporting in this regard: the whole Biowatch court saga was characterised by one-sided reporting in the media, with the reports mostly just a repeat (sometimes almost verbatim) of Biowatch’s own press statements. The latest report of 7 November 2007 in the Cape Argus following the appeal judgment is indicative of this one-sidedness and a general laziness to find the truth behind the story. The article did not mention any of the reasons why Biowatch lost, but (following Biowatch’s press statement) specifically highlighted that Biowatch acted in the public interest. Such journalism leaves the reader with an impression of possible unreasonableness on behalf of the court, and that public interest litigation has been dealt a blow by the judgment. (And it of course generates sympathy for Biowatch.) In contrast, the facts will clearly show that public interest litigation is under no threat, and that Biowatch alone is to blame for the cost order against it.

Let us start at the beginning: Biowatch applied to the High Court for an interdict to compel government to give it access to sensitive information regarding GMOs. It should be noted that Biowatch did not explore other reasonable avenues, such as the procedures provided in the GMO Act, to obtain the information – the organisation simply rushed to court. This is an important element that was considered by the court when making the cost order. Although activist organisations thrive on the media hype created by a court case, this is therefore a warning to such organisations first to exhaust other (lower-profile) reasonable avenues before engaging in litigation.

The rush to court is, however, only the first reason why Biowatch ended up with a cost order against it. The various demands for information from government were so unspecific and vague that they were in many instances void for vagueness. The demands were also so overly broad that it necessitated Monsanto, a private GMO producer, to add itself as a party to protect its rights. The court found Biowatch’s case to be “clearly oppressive and vexatious” and a “fishing expedition”. This is a powerful indictment against Biowatch, with which the full bench “wholeheartedly” agreed. A litigant that is found to institute legal proceedings on insufficient grounds and with the intention of causing annoyance to other parties must after all expect to end up with a cost order against it. Lesson two for future public interest litigation is therefore to give the same care to the preparation of the case than any reasonable litigant would.

The third reason why Biowatch was slapped with a cost order is the usual reason in civil litigation, namely that it lost against another private entity. Although Biowatch was partially successful against government, it was entirely unsuccessful against Monsanto, and was therefore ordered to pay Monsanto’s costs – not those of the government. Although Biowatch would like to portray itself as championing constitutional rights against large multinationals such as Monsanto, it goes without saying that Monsanto also has constitutional and other legal rights that must be upheld. Biowatch, for instance, demanded the exact coordinates of farms (of private farmers) who conduct field trials for Monsanto’s new GMO crops. A demand like this is completely unjustifiable and constitutes a clear infringement on Monsanto and these farmers’ privacy. Lesson three, therefore: if public interest litigation involves the interests of other private organisations or people, remember that they have rights too! In conclusion, the full bench judgment confirmed the position that unsuccessful applicants in public interest litigation are generally not liable to pay the state’s costs, but also made it clear that no one has immunity against a cost order – even in the case of public interest litigation. To grant such immunity would be to give carte blanche for vexatious legal proceedings (such as Biowatch’s case) to be instituted at will, which would obviously undermine justice. Biowatch argued in Court that it never contemplated getting a cost order against it. The Court’s answer was clear: nobody is above the law – including Biowatch.

– Written by Adv. Donrich Jordaan is Head of the Unit for Policy Studies at the Centre for International Political Studies (CiPS), University of Pretoria.

The views expressed in this paper are those of the author and do not necessarily reflect the views of the Centre for International Political Studies (CiPS) or the University of Pretoria