Costs order against state in protracted GM crops case
June 04, 2009 Edition 2
Melanie Gosling
THE Constitutional Court has ordered the state to pay the legal costs of environmental lobby group Biowatch Trust, which had to go to court to force the government to release information about genetically modified (GM) crops.
The judgment, which comes after a protracted legal battle, will have far-reaching effects for public interest groups seeking to assert constitutional rights.
It is also likely to serve as a wake-up call to government departments tardy or obstructionist in fulfilling their constitutional responsibility to provide the public with access to information.
The Constitutional Court action came after Biowatch had won a High Court battle several years ago against the Department of Agriculture's registrar for genetic resources. Although Biowatch had won, the High Court had ordered the group to pay the costs of Monsanto, a multinational seed company which had joined the case on the side of the state. The Supreme Court of Appeal had refused Biowatch leave to appeal against the costs order, and it turned to the Constitutional Court.
Yesterday, Justice Albie Sachs said the case before the Constitutional Court did not deal with costs in general, but only with the proper approach to costs awards in constitutional litigation.
Sachs said although Biowatch has been successful in its claim against the government and obtained the information about GM crops that it sought - the release of which Monsanto has strongly opposed - Biowatch "found itself in the position of having to foot the bill for all its own costs and to pay the costs incurred by Monsanto".
He said this appeared to have sent a "shockwave" through the public interest law community, who felt negative costs orders would have a deleterious effect on public interest groups taking legal action in defence of constitutional rights.
Justice Sachs said costs should not be determined by whether the parties were rich or poor, or whether they acted in their own or in the public interest, but by whether a costs order would hinder or promote the advancement of constitutional justice.
In litigation between the government and a private party seeking to assert a constitutional right, if the government lost, it should pay the costs of the other side. If it won, each party should bear its own costs. This lessened the "chilling effect" that adverse costs orders would have on parties seeking to assert constitutional rights. Also, the state bore primary responsibility for ensuring that its conduct was consistent with the constitution.
Sachs said reading the high court judgment left him with no doubt that the government officials had failed to fulfil their constitutional and statutory duties in providing Biowatch with the information about GM crops it sought. The government agencies had compounded this by "obdurately raising a serious of unsustainable technical and procedural objection to Biowatch's suit".
Monsanto had unnecessarily prolonged the litigation with "futile attempts to keep Biowatch out of court altogether". Yet, the case was not between Monsanto and Biowatch, but between Biowatch and the state.
Biowatch had been compelled to go to court because the government had "obstinately refused to provide information it was duty-bound to supply".
"The government's duty was to act as impartial steward, and not align itself either with those who had furnished the information, or with parties seeking access to it ...the greater the public controversy, the more need for transparency," Justice Sachs said
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