Biowatch Trust v Registrar, Genetic Resources, and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'regan J, Sachs J, Skweyiya J, Van Der Westhuizen and Yacoob J
• Judgment Date: 03 June 2009
• Citation: 2009 (6) SA 232 (CC)
• Docket Number: 80/08
• Hearing Date: 17 February 2009
• Counsel: G Marcus SC (with R Moultrie) for the applicant. No appearance for the first, second, third, fifth and sixth respondents. F Snyckers for the fourth respondent. S Budlender for the first and second amici curiae. R Keightley (with C Cooper) for the third amicus curiae.
• Court: Constitutional Court

Sachs J:

Introduction F

[1] This case is all about costs awards, and only about costs awards. These awards ordinarily come at the tail-end of judgments as appendages to decisions on the merits. In this matter, however, they occupy centre-stage, indeed, the whole stage. The sole issue revolves around the proper judicial approach to determining costs awards in constitutional litigation. G

[2] The application for leave to appeal was prompted by two unfavourable decisions on costs made in respect of The Biowatch Trust (Biowatch), an environmental watchdog that sought information from governmental bodies [1] with statutory responsibilities for overseeing H genetic modification of organic material. [2] The first decision related to a dispute between Biowatch and the governmental bodies. The High Court held that the registrar for Genetic Resources (the registrar) had been in default of his responsibilities in a number of respects, and made several orders in Biowatch's favour. [3] But, to mark its displeasure at what I

Sachs J

A it regarded as inept requests for information, first by letter and then in the notice of motion, the High Court decided to make no costs order against the governmental bodies in Biowatch's favour.

[3] The second costs decision concerned Monsanto SA (Pty) Ltd (Monsanto), the South African component of a multinational diversified B biotechnology company involved in the research, development and sale of genetically modified organisms (GMOs) in South Africa. Monsanto, together with two other producers of GMOs, [4] was permitted to intervene in the litigation. The High Court held that Monsanto had been compelled by Biowatch's conduct to intervene in the litigation, more C particularly to prevent Biowatch from having access to confidential information which Monsanto had supplied to the registrar. Because of its displeasure at the lack of precision as to the information sought by Biowatch, the court ordered Biowatch to pay Monsanto's costs.

D [4] The net result was that although Biowatch had been largely successful in its claim against the government agencies, and even though it obtained information, the release of which Monsanto had strongly opposed, it found itself in the position of having to foot the bill for all its own costs, and in addition to pay the costs incurred by Monsanto. Biowatch appealed to the Transvaal Provincial Division (full court) [5] on E the question of the costs decisions only, but the full court, by a two-to- one majority, ruled against it. It then applied for leave to appeal directly to this court against the full court's judgment, but that application was refused on the basis that it was not appropriate to bypass the Supreme Court of Appeal. The Supreme Court of Appeal was then approached F to grant special leave to appeal, but that application was refused without reasons being given. Biowatch then applied to this court once again for leave to appeal. We are now called upon to decide whether leave to appeal should be granted, and if so, whether the appeal should be upheld.

G [5] A shockwave appears to have swept through the public-interest law community. When Biowatch's application for leave to appeal was set down for hearing in this court, three public-interest non-governmental organisations (NGOs) applied for and were granted the status of amici to assist the court. The Centre for Child Law and Lawyers for Human H Rights presented joint argument dealing with the deleterious effect that negative costs orders would have on the capacity of public-interest law bodies to initiate litigation in defence of constitutional rights. They contended that the effect would be particularly severe on bodies that were dependent on support from international donors. Aligning itself with these submissions, the Centre for Applied Legal Studies went on to I emphasise the particular importance of facilitating public-interest litigation to protect environmental rights.

Sachs J

Should leave to appeal be granted? A

[6] The determination of this issue requires us to consider two related questions, namely, does it raise a constitutional issue, and whether it is in the interests of justice for the matter to be heard.

Does the case raise a constitutional issue? B

[7] This judgment does not deal with costs orders in general, but only with the proper approach to costs awards in constitutional litigation. The cases cited at the hearing showed that although when dealing with costs this court has frequently referred to the need to take account of the C constitutional dimension of a case, it has tended to do so on a rather ad hoc, case-by-case manner. The need for flexibility and a careful case-by-case approach was in fact emphasised in one of the first cases heard by this court, Ferreira v Levin. [6] In a judgment on costs given separately from the judgment on the merits, Ackermann J pointed out that the courts have over the years developed a flexible approach to costs which D proceeds from two basic principles, the first being that the award of costs, unless otherwise enacted, is in the discretion of the presiding judicial officer, and the second that the successful party should, as a general principle, have his or her costs.

[8] He went on to explain: E

'Without attempting either comprehensiveness or complete analytical accuracy, depriving successful parties of their costs can depend on circumstances such as, for example, the conduct of the parties, the conduct of their legal representatives, whether a party achieves F technical success only, the nature of the litigants and the nature of the proceedings. I mention these examples to indicate that the principles which have been developed in relation to the award of costs are by their nature sufficiently flexible and adaptable to meet new needs which may arise in regard to constitutional litigation. They offer a useful point of departure. If the need arises the rules may have to be substantially G adapted; this should however be done on a case by case basis. It is unnecessary, if not impossible, at this stage to attempt to formulate comprehensive rules regarding costs in constitutional litigation.' [7]

[Footnotes omitted.]

[9] During the 13 years that have passed since Ferreira v Levin was H decided we have indeed gained considerable experience of costs awards made on a case-by-case basis. A number of signposts have emerged. Without departing from the general principle that a court's discretion should not be straitjacketed by inflexible rules, it is now both possible and desirable, at least, to develop some general points of departure with I regard to costs in constitutional litigation. More specifically, it is

Sachs J

A necessary to attempt to delineate the proper starting point for deciding costs in a case involving constitutionally protected rights to information [8] and environmental justice. [9]

[10] The award of costs in a constitutional matter itself raises a B constitutional issue and therefore this court has jurisdiction to hear it.

Is it in the interests of justice for the matter to be heard?

[11] Section 21A of the Supreme Court Act [10] provides that appeals solely on costs should only be entertained in exceptional circumstances. Counsel for Monsanto contended that since no exceptional C circumstances existed in the present matter, this court should not entertain the application for leave to appeal. Counsel for Biowatch responded that s 21A of the Supreme Court Act was not binding on this court. This response is correct. Nevertheless, the principle underlying the section is manifestly meritorious. Appeals on this limited, subsidiary issue pile D costs upon costs, favouring litigants with deep pockets. They may usurp valuable appellate court time on ancillary questions that have no importance for the general public, and be of interest only to the litigants. In short, they are a sideshow to the real issues that should occupy the court's time (although as the facts of this case indicate, they can be an important sideshow). Thus, although an appeal to this court on a costs E award only may be competent even if no exceptional circumstances exist, it will not normally be in the interests of justice for leave to appeal to be granted.

Sachs J

[12] In my view the present case raises matters of special constitutional A concern. The amici contend forcefully that if the approach suggested by the High Court is allowed to stand, public-interest litigation could be jeopardised by the severe financial penalty that costs orders would impose on the organisations bringing these suits. Many civil-society groups seeking constitutional justice are heavily dependent on funds from donors. The amici submitted that donors would be reluctant to B provide financial support for litigation if they feared that the money would be swallowed up in satisfying adverse costs orders. Whether or not this argument is legitimate, the practical implications of the High Court decisions on costs in this case are undoubtedly wide-ranging. A question of general importance arises, namely, whether the general principles C developed by the courts with regard to costs awards need to be modified to meet the exigencies of constitutional litigation. The answer to this question has a direct bearing on the correct approach to the issues at the heart of this matter.

[13] I accordingly conclude that it is in the interests of justice for leave D to appeal to be granted.

The issues

[14] This case raises four issues concerning costs awards in constitutional litigation. They are: E

(a)

Whether costs awards in constitutional litigation should be determined by the status of the parties or by the issue;

(b)

what the general approach should be in relation to suits between private parties and the...