The Rights of Vulnerable Groups | The Biowatch Case

Biowatch applied to the Department of Agriculture for information about authorisation it had given to multinational corporation Monsanto to utilise genetically modified seeds in South Africa. Dissatisfied with the lack of information provided, Biowatch asked a High Court Judge for an order compelling more comprehensive answers. Monsanto was joined in the proceedings. The Judge issued part of what Biowatch had asked for, but said that its request had been far too wide, and ordered Biowatch to pay the costs incurred by Monsanto. The cost order sent a shockwave through the public interest law community. Biowatch appealed unsuccessfully to the Supreme Court of Appeal and the matter came to the Constitutional Court. Biowatch faced two problems. The first was a rule of the SCA that it would not hear matters simply based on challenges to the costs award. Secondly, South African courts had held as a general rule that in civil matters the losing party pays the costs of the winner, and, in addition, that appeal courts would be very reluctant to rule against the discretion of the Judge who had originally heard the matter as to how costs should be awarded. Writing for the Court, Justice Sachs held that the approach to cost awards should be different from the normal when people came to Court to vindicate constitutional rights. Underlining the important role that public interest law groups like Biowatch played in helping vulnerable and marginalised communities to assert their rights, he held that in cases where the State lost, the State should pay the costs of the litigant, and where the litigant lost, each side should pay its own costs. The only exceptions would be cases that were manifestly frivolous. The Biowatch principle has now become well established.