NOTE: Interesting use of language here. The judge in the previous case is accused of being "capricious" while Monsanto's counsel claims Biowatch were too "majestic" in their actions, requiring the application of a "healing balm" to Monsanto.

Monsanto's "healing balm" turns out to be the kind of costs order that could drive Biowatch out of existence, even though they won their case. Monsanto's "balm" would also have the effect of deterring other public interest bodies from challenging the actions of multinational corporations.

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Biowatch: Cost ruling under fierce attack
Independent (South Africa), May 2 2007
http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=vn20070502023819109C117615

Did High Court Judge Eric Dunn act "capriciously" against the environmental watchdog group Biowatch, or was he dispensing a legal "healing balm" to tame its ardour for information?

These are some of the legal arguments which a full Bench of the High Court is mulling over at the moment in an appeal case that is expected to have major ramifications for public interest bodies that challenge the actions of large multinational corporations in South Africa.

The appeal case, argued in Pretoria last week, comes after a partial legal victory in 2005 by the Biowatch environmental group which went to court to ferret out information about genetically-modified (GM) plant experiments in South Africa by American multinational group Monsanto and other international seed companies.

Although Biowatch won access to a wide variety of information from Monsanto and the government's GM regulatory bodies, Dunn took the unusual step of ordering Biowatch to pay the legal costs of Monsanto.

Dunn accepted that Biowatch was entitled to the information and had been forced to go to court to access some of the information, but said it had framed its requests in a very broad and "lackadaisical" fashion.

Because of this, he ruled that Monsanto had been compelled to hire lawyers to prevent the release of commercial information that it regarded as secret.

However, Biowatch appealed against the costs ruling and, when the case was argued before a full Bench last week, Dunn's approach came under fierce attack from Richard Moultrie, counsel for Biowatch.

Moultrie argued that Dunn's ruling was contradictory, lacking in logic and also "capricious".

"It is submitted that, to the extent that the learned judge made the costs order on the basis of the manner in which the relief was framed, he acted capriciously in the exercise of his discretion.

"Not only was the formulation of the majority of the relief found in fact not to have been vague, there is no logical basis to suggest that the formulation of the relief caused the proceedings to be opposed or even extended unduly," he said.

Moultrie argued that neither Dunn nor Monsanto should have had any real difficulty working out what information Biowatch was looking for.

His ruling was likely to deter other public interest groups from launching similar litigation, and Dunn had erred by failing to take into account his own finding that Biowatch was acting in the public interest and in defence of its constitutional right of access to information.

Moultrie argued that the punitive legal costs ruling against Biowatch contradicted the general practice of awarding costs to the substantially victorious party.

It also contradicted South African and international case law where courts sought to protect litigation in the public interest.

He cited a 1996 ruling by the late Ismail Mahomed, former chief justice and deputy president of the Constitutional Court, that groups acting in the public interest "should not be discouraged from doing so by the risk of having to pay the costs of their adversaries".

Mahomed said this did not mean that such bodies should be completely protected from this financial risk, but judges should use their discretion and only penalise them if they acted frivolously, vexatiously or from improper motives.

A similar form of legal protection for environmental groups was also written into the National Environmental Management Act of 1998.

But Monsanto's legal counsel, Frank Snyckers, took a very different view.

He said Moultrie had performed a series of unsuccessful legal "contortions" to advance his case and Dunn had been given no option but to administer the "healing balm of a costs award" to punish Biowatch for submitting legally incoherent and "unintelligible" requests for information.

The term "healing balm" had been coined by another judge in a court case in 1970, but Snyckers argued that Dunn was entitled to apply the balm to address legal defects in the Biowatch case which caused waste and expense for other parties.

Nor had Biowatch been able to demonstrate that Dunn had committed a "demonstrable legal blunder".

Were the court to rule in favour of Biowatch, "it would be undermining the strong caveat issued by the Constitutional Court and be encouraging applicants, in particular those seeking all sorts of information from all manner of parties, to invoke the right to freedom of information, and to pay no heed at all to taking care to identify with some precision the information at issue..."

In short, Biowatch had submitted a request for information which was too broad, too vague and too "majestic".

Judgment has been reserved by Judges Fanie Mynhardt, Justice Phoswa and Mpho Molopa-Sethosa.

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