African Centre for Biodiversity NPC v Minister of Agriculture, Foresty and Fisheries and others

• Jurisdiction: South Africa
• Judge: Tolmay J
• Judgment Date: 27 June 2023
• Hearing Date: 08 February 2023
• Docket Number: 27524/2017
• Court: Gauteng Division, Pretoria
• Citation: 2023 JDR 2419 (GP)

Tolmay J:

Introduction

1.

This is an application to review and set aside the approval of the general release of MON 87460, a genetically modified variety of maize. The applicant (ACB) brings this application for the review and setting aside of three decisions (the impugned decisions), namely the approval by the fourth respondent (EC) given during June 2015 for the general release of MON 87460 (the EC decision), the dismissal of the third respondent (the Appeal Board) on 1 September 2016 of ACB’s appeal against the EC decision (the Appeal Board decision) and the first respondent’s (The Minister) confirmation of the Appeal Board decision dated 2 December 2016 (The Minster’s decision).

2.

ACB seeks an order referring the fifth respondent’s (Monsanto) application for approval for the general release of MON 87460 back to the EC for reconsideration. After the launch of this application, Bayer (Pty) Ltd (Bayer) acquired full ownership of Monsanto and was joined as a party to the proceedings. The crux of ACB’s case is that the respective decision makers accepted the data included in Monsanto’s application at face value and without ensuring that the necessary health and safety risks associated with MON 87460 had been properly and independently assessed.

3.

ACB did not launch the application under rule 53 and did not call for a record. Monsanto however called for such a record and ACB failed to file a supplementary founding affidavit after the filing of the record.

Background

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4.

The permit for the general release of MON 87460 was issued in terms of the Genetically Modified Organisms Act 15 of 1997 (GMO Act) by the EC, which is a body created by the GMO Act to determine whether such permits should be granted. [1] The decision was taken in consultation with the Advisory Committee (AC) which is a specialist body comprised of experts [2] . Both the EC and the AC found MON 87460 to be safe for animals, humans, and the environment. ACB brought the review application under the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

5.

On the 14th of July 2014, Monsanto applied for a permit for the general release of MON 87460, a genetically modified maize variety. On the 15th of June 2015, the EC granted the permit. ACB made no submissions to the EC, as it was unaware of the application. ACB had been engaging the respondents in various applications relating to MON 87460 since 2007. ACB, due to a lack of resources did not see the notices that were published in three newspapers as is required by the GMO regulations, and only became aware of the EC decision by way of an email dated 18 June 2015. ACB requested reasons and this was provided. On 7 August 2015 it lodged and appeal, de novo. On 1 September 2016 ACB was informed that the appeal was dismissed and on 2 December 2016 it was informed that the Minister had upheld the Appeal Board’s decision.

6.

Monsanto claims that MON 87460 suffers less yield loss in water limited conditions, than conventional maize, it is referred to as a drought tolerant variety of maize. It has been approved for use in food, animal feed and environmental release in 17 countries, including the United States, the European Union, Korea, and Japan. Certain field trials were also concluded in South Africa, although the results of these trials were confidential, ACB’s legal representatives and experts were granted access to this information by way of a court order.

Issues to be decided

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7.

The court has to decide whether the impugned decisions should be reviewed and set aside in terms of PAJA and in particular whether;

a)

the EC decision complied with section 5(1)(a) of the GMO Act.

b)

the EC decision was procedurally fair.

c)

the EC provided adequate reasons for its decision.

d)

the EC failed to apply its mind to the information provided.

e)

the EC’s decision was supported by the evidence before it.

f)

the Appeal Board adequately addressed the appeal grounds raised by the applicant.

g)

the Minister failed to give reasons for her decision or failed to engage with the issues before the EC and Appeal Board.

h)

the application for the general release of MON87460 ought to be referred to the EC for reconsideration.

Review proceedings

8.

It is trite that in review proceedings that the question is not whether the relevant decision is correct, it is whether the decision maker exercised its powers properly. The focus thus is on the process and the way in which the decision maker came to the decision. [3] It is common cause that the decisions made in this matter are administrative actions and that ACB must establish grounds of review under PAJA as the decisions were taken “by an organ of State in the performance of a public function” [4] . In review applications, the doctrine of separation of powers requires a court, when reviewing administrative actions, to treat administrative decisions with appropriate deference and respect and is required to “give due weight to findings

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of fact and policy decisions made by those with special expertise and experience in the field.” [5]

9.

In this case, the court is confronted with disputes of fact as the experts of ACB have conflicting views with the experts of the Advisory Committee (AC), who advised the EC, and those experts consulted by Monsanto. ACB accepted that there are disputes between the relevant experts relied on by the parties, ACB however invited the court to follow the approach set out in Michael v Linksfield Park Clinic (Pty) Ltd [6] , in that instance however, the claim was for damages and the hearing was conducted by way of a trial. It follows that disputes of fact were resolved by, inter alia, assessing the credibility and inherent probabilities of the evidence led. The witnesses were subjected to cross-examination and the court had the opportunity to properly consider and evaluate the evidence led. This matter is to be distinguished from the Linksfield matter, as no evidence was led, and the Court was confronted with conflicting opinions of experts. The evidence is of a highly technical and scientific nature.

10.

There was no attempt to refer this matter to oral evidence. In motion proceedings the principle established in Plascon-Evans Paints Ltd V Van Riebeek Paints (Pty) Ltd [7] , must be applied. This well-known principle holds that in motion proceedings an applicant can only succeed if its case can be established based on the facts alleged by the respondent, read together with the facts alleged by the applicant, and admitted by the respondent. With the exception that if the respondent’s denial is far-fetched or untenable the court may reject it on the papers, or if the respondent’s denial does not raise a bona fide dispute of fact. The rule in Plascon-Evans was confirmed by the Constitutional Court. [8]

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11.

In this instance, the expert’s opinions are highly technical and based on scientific analysis. To test the veracity of the different viewpoints evidential scrutiny is required. The Court is ill-suited to, without evidence, determine the disputes between different expert opinions and is therefore obliged to follow the so-called Plascon-Evans rule. To deviate from the Plascon-Evans rule would, as counsel for Monsanto argued, amount to a substantial intrusion on the separation of powers. The starting point in considering this review, must therefore be to apply the Plascon-Evans rule and the Court must therefore accept the expert evidence provided by the State Respondents and Monsanto.

Compliance with section 5(1)(a) of the GMO Act and application of the precautionary principle

12.

Section 5 (1)(a) provides that the Council shall, when an applicant applies for a permit, determine whether the applicant must in addition, submit an assessment in accordance with the provisions of the National Environmental Management Act 107 of 1998 (NEMA), of the impact on the environment and an assessment of the socio-economic consideration of such activities. ACB is of the view that the decision not to call for an independent assessment was procedurally unfair, and that the precautionary principle was not applied.

13.

ACB, in the founding affidavit, stated that the EC ought to have called on Monsanto to submit risk assessment and environmental impact studies. The record shows that Monsanto provided a risk assessment, but ACB insists that an independent risk assessment should have been provided. Monsanto’s argument is that the EC did not fail to take a decision as envisaged in section 5(1)(a) but took a decision not to request an independent assessment based on the evidence before it.

14.

The State Respondents pointed out, in their answering affidavit that Monsanto was not required to submit an environmental impact assessment (EIA) in accordance with NEMA, because section 24 of NEMA only requires EIA’s to be conducted for listed activities, as published in section 24 (d) of NEMA. Monsanto was not

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required to submit an environmental assessment, because the South African trials did not show that the GMO may pose a threat to any indigenous species, or the environment.

15.

The failure to call for an EIA is linked to the precautionary principle. ACB argued that the precautionary principle should be applied. This principle is included in chapter 2 of NEMA. Section 2(4)(a)(vii) of NEMA provides that a risk adverse and cautionary approach should be followed. This implies that the limits of current knowledge about the consequences of decisions and actions should be considered when decisions are taken. The precautionary rule has been incorporated in the GMO Regulations. Regulation 4(6) reads:” lack of scientific knowledge or scientific consensus shall not be interpreted as indicating a particular...