GM WATCH COMMENT: It's great to hear that Biowatch South Africa has finally got a court date for its appeal against the absurd costs order made against it - and in favour of Monsanto - when it won its case in the Pretoria High Court for access to information about how decisions are made in the permitting of GM crops in South Africa.

For years the public interest group had been trying to get access to the safety data and information on the basis of which GMOs were being imported, tested, grown and released in South Africa. But the South African Government's Registrar of Genetic Resources had consistently stalled Biowatch's applications, claiming the data could not be disclosed because it was confidential business information.

And when Biowatch finally took their case to the High Court, they found themselves opposed not just by the Registrar and other arms of the South African Government, but by giant corporations like Monsanto and Delta Pine Land, desperate to maintain the veil of secrecy.

Despite the big guns ranged against them, Biowatch's victory was comprehensive. As the summary of the case below makes clear, the judge not only granted access to almost all the information Biowatch had requested, but he reconfirmed that they had a constitutional right to the information; that their access to the information was in the public interest; and that they had been forced to apply to the court to establish their right to access to the information.

In these circumstances, Biowatch might reasonably have expected the judge to order the payment of their legal costs. Bizarrely though, the NGO's reward for winning their case and successfully upholding the public interest, was an order that they should pay Monsanto's hefty legal costs, understood to run into hundreds of thousands of rand. The giant corporation had been the only respondent to insist, right to the end, that Biowatch should bear its legal costs.

If this absurd order is not now overturned, the message to other public interest litigants could not be clearer: even if you win, you're the ones who'll be heavily penalised.
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Summary document

Biowatch South Africa has been granted a court date, (23 April 2007) for its appeal, to be heard against a costs order which has grave implications for public interest organisations who are forced to litigate to protect or promote constitutional and environmental rights. The Legal Resources Centre is acting on behalf of Biowatch.

The costs order which Biowatch South Africa is appealing arose out of its successful application to the Pretoria High Court for access to information about how decisions are made in the permitting of genetically modified (GM) crops in South Africa.

The case has been a milestone. It affirmed the duties of public bodies to provide access to information. It also clarified the role of the Registrar of genetic Resources in providing parties with and interest in or who are affected by GM crops with access to documents, such as risk assessments, which are important for better understanding how GM crops are regulated in South Africa.

In February 2005 acting Judge Eric Dunn, in the Transvaal Provincial Division, ordered that Biowatch South Africa be granted access to almost all the information it had requested. The Registrar of Genetic Resources, located in the Department of Agriculture, was ordered to make this information available to Biowatch South Africa by April 30 2005.

Judge Dunn reaffirmed:

· Biowatch South Africa's constitutional right to this information.
· That access to the information was in the public interest.
· That Biowatch South Africa had been forced to apply to the court to exercise this right.

Judge Dunn also said that:
· Granting access to this information was a necessary part of the proper administration of the Genetically Modified Organisms Act;
· Access to the information could only be restricted on grounds set out in the Promotion of Access to Information Act (which restricts public access to information when this could jeopardize business interests, for example);
· The Registrar of Genetic Resources had adopted a passive role in assisting Biowatch with gaining access to the information it had sought to obtain from the Department of Agriculture.

But instead of applying the general principle that costs should follow the result of litigation, Judge Dunn ordered Biowatch South Africa to pay the legal costs of Monsanto South Africa (Pty) Ltd. His reason: Biowatch South Africa had been too general in its request for information and this had forced Monsanto South Africa to come to court to protect its interests. Judge Dunn made no other costs orders. Monsanto South Africa (Pty) Ltd is part of Monsanto, the powerful global chemical and seed conglomerate based in the United States of America.

Biowatch South is appealing the costs order for the following main reasons:

· The costs order in favour of Monsanto South Africa (Pty) Ltd is likely to have a deterrent effect on future public interest litigation. This is because the order creates the impression that if any part of a request for information is found to be insufficiently specific, even a successful litigant may be heavily penalised.
· Biowatch South Africa is a non-governmental organisation which is reliant on donor funds for very specific activities. The costs order against the organisation will impede the organisation's capacity to gain access to, analyse and disseminate to the public the very information for which the court ordered access because much-needed resources would be diverted away form the organisation's core business.
· There is no order for payment of Biowatch South Africa's legal costs, even though the organisation was successful in its application to the court and the court found that Biowatch South Africa had been forced to apply to the court for access to the information to which it was entitled.

Monsanto South Africa (Pty) Ltd was the only respondent to insist, right to the end, that Biowatch South Africa should bear its legal costs. The Department of Agriculture and two other companies associated with GM crops – Stoneville Pedigreed and Delta and Pine Land abandoned their requests for Biowatch South Africa to pay their legal costs.

Chronology of events
1997 – first GM crops are commercially released in South Africa.

December 1999 – Genetically Modified Organisms (GMO) Act comes into operation.

July 2000 - Biowatch South Africa makes first request for information about how permitting decisions for GM crops are made. The organisation makes further requests on another three occasions up to February 2001 but receives inadequate responses from the Registrar. The information requested included:

· access to a selection of risk assessments;
· information on legislation governing field trial licences before the implementation of the GMO Act;
· an update on what permits had been granted;
· permission to inspect permits granted;
· permission to inspect records regarding compliance with public participation provisions of the GMO Act;
· details about pending applications for permits for GM crops, exact coordinates of field trials and crops approved for commercial release.

August 2002 – Biowatch South Africa serves court papers on the Department of Agriculture, naming the Registrar for Genetic Resources, the Executive Council for Genetic Resources and the Minister of Agriculture as respondents.

February 2003 – Monsanto South Africa (Pty) Ltd applies to join the court proceedings as a co-respondent, on the grounds that they have a direct and substantial interest in the subject matter of the proceedings. Two other companies – Stoneville Pedigreed and Delta and Pine Land - which distribute Monsanto GM seed also applied to join the proceedings as co-respondents, opposing Biowatch South Africa's application. The Open Democracy Advice Centre joins proceedings as a friend of the court to advance arguments in support of Biowatch South Africa's constitutional right of access to information.

May 2004 – the case is heard in the Pretoria High Court.

February 24 2005 – Acting Judge Eric Dunn hands down his order.

June 23 2005 – Biowatch is granted permission to appeal the costs order.

October 13 2006 – Appeal date scheduled for 23 April 2007.

To read more about the access to information case and Biowatch South Africa's appeal against the costs order, please go to the Biowatch South Africa website: www.biowatch.org.za and look under DOCUMENTS

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