21 September 2009

How deep are your pockets and does it matter?

In The Trustees for the Time Being of the Biowatch Trust v the Registrar, Genetic Resources and Others the Constitutional Court (the Court) raised some interesting issues for litigants in environmental (and other constitutional) rights matters. The Court overturned a costs award made by the High Court against Biowatch, an environmental watchdog, following a request by Biowatch to various government bodies for information about genetically modified organic material.

The request was initially ignored and finally refused. Biowatch then applied to the High Court to compel the release of the information. Monsanto South Africa (Pty) Ltd (Monsanto) and other biotechnology companies which were affected by the possible release of the information opposed its release and intervened in the litigation. Although the High Court ordered Biowatch's access to most of the information sought, it did not order the respondent government bodies to pay Biowatch's costs, to show its displeasure at what it regarded as the imprecise way in which the information was requested. Biowatch was ordered to pay Monsanto's costs.

Importantly, in reviewing the High Court's decision, the Court found that all litigants have equal status when asserting constitutional rights in a court and costs awards cannot depend upon whether a party is acting in the public interest or is indigent (and implicitly, whether it is a multinational that can afford to pay). What is decisive, is the nature of the issues raised and the parties' conduct in pursuing those issues.

The Court also found that generally in constitutional litigation between government and a private party, if the government loses, it should pay the costs of the other side. If government wins, each party should bear their own costs, so as to prevent the chilling effect that adverse costs orders could have on potential litigants wanting to assert their constitutional rights. However, it is critical that genuine, substantive and truly constitutional issues are raised by the parties.

The Court held further that where the state is sued for failing to fulfil its responsibilities for regulating competing claims between private parties, the general rule regarding costs awards should be applied so as to avoid discouraging parties from pursuing constitutional claims.

Finally, it was found that Biowatch had to litigate because of the persistent failure of the government authorities to provide the information that it was legally entitled to and the way in which the information was requested did not warrant the costs order made. Accordingly, the costs order against Biowatch in favour of Monsanto was set aside.

Following the High Court's judgment, the way in which many public bodies deal with applications for access to information held by them has changed. The Court's judgment sent a clear message to state holders of information and defined their roles in disputes between private parties regarding that information.

This decision also raises other interesting issues. It is difficult to describe accurately information or documents that one has not seen and for that reason requests for access to information are often imprecise. This judgment will ensure some latitude regarding requests for information in future. As far as costs are concerned, this judgment served to allay the fears regarding future constitutional litigation of public interest organisations conducted in good faith after all other channels are exhausted.

Large organisations will be comforted by the Court's emphasis that deep pockets are not a factor to be taken into account when asserting constitutional rights in court.

Terry Winstanley
Director & National Practice Head: Environmental Law

The information and material published on this website is provided for general purposes only and does not constitute legal advice.

We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Please consult one of our lawyers on any specific legal problem or matter.

We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages.

Please refer to the full terms and conditions on the website.

Copyright © 2021 Cliffe Dekker Hofmeyr. All rights reserved. For permission to reproduce an article or publication, please contact us cliffedekkerhofmeyr@cdhlegal.com