Trustees, Biowatch Trust v Registrar: Genetic Resources, and Others

JurisdictionSouth Africa
Citation2005 (4) SA 111 (T)

Trustees, Biowatch Trust v Registrar: Genetic Resources, and Others
2005 (4) SA 111 (T)

2005 (4) SA p111


Citation

2005 (4) SA 111 (T)

Case No

23005/2002

Court

Transvaal Provincial Division

Judge

Dunn AJ

Heard

February 25, 2005

Judgment

February 25, 2005

Counsel

J C Butler for the applicant.
M M Rip SC (with T A N Makhubele) for the first to third respondents.
A D Wilson for the fourth respondent.
M Chaskalson for the fifth respondent.
B du Plessis for the sixth respondent.
J Cassette (with T Masuku) for the amicus curiae.

Flynote : Sleutelwoorde E

Environmental law — Genetically modified organisms — Access to information concerning — Application under Genetically Modified Organisms Act 15 of 1997, National Environmental Management Act 107 of F 1998 and s 32 of Constitution of the Republic of South Africa Act 108 of 1996 — Requests for information made between dates of promulgation of Promotion of Access to Information Act 2 of 2000 and its coming into operation — Applicant having established that it had a clear right to information — Applicant, however, ordered to pay costs of one of opposing parties where it had G sought portion of information in inappropriate manner, where relief claimed incorrectly formulated, and it had compelled party to come to Court to protect its interests.

Environmental law — National Environmental Management Act 107 of 1998 — Claim for relief based on Act — Joinder of responsible Minister — Not H necessary to join Minister merely by virtue of fact that administration of Act assigned to Minister of Environmental Affairs and Tourism.

Administrative law — Access to information — Promotion of Access to Information Act 2 of 2000 — Retrospectivity of — Requests for information made between dates of promulgation of Act and its coming into operation — To insist upon retrospective operation of Act would be to interfere with applicant's then existing rights and I rendering its requests for information invalid — Would also have effect of denying the applicant the right it was seeking to exercise under s 32 of Constitution.

Administrative law — Access to information — Promotion of Access to Information Act 2 of 2000 — Obligation to exhaust internal appeal procedure J

2005 (4) SA p112

in terms of s 78 of Act — Provision only applicable in respect of 'public body' — Registrar: Genetic Resources A and Executive Council for Genetically Modified Organisms not public bodies — Genetically Modified Organisms Act 15 of 1997 not expressly stating that recourse to the courts was to be deferred until the internal appeal procedure provided for in s 19 thereof was exhausted. B

Administrative law — Access to information — Promotion of Access to Information Act 2 of 2000 — Extent of right — Right not absolute and to be balanced with justifiable government and private concerns for maintaining confidentiality — PAIA enacted to give effect to such right — Not unfair if grounds for refusal of access were to be found, although the onus of justification would be on party seeking limitation — First respondent not entitled to adopt a passive attitude to applicant's C application for information — While applicant's requests were overbroad, they ought not to have been refused — Applicant had a clear right to much of the information requested — Failure to grant it infringed applicant's rights — It ought not to be non-suited because of inept form of its request — First respondent entitled to refuse access to certain records under provisions of the Act — Ordered accordingly. D

Costs — Generally — Deviation from normal order of costs following result — Successful party in application for access to information in environmental matter ordered to pay the costs of unsuccessful party where it had sought some of the information in inappropriate manner and where relief claimed was E incorrectly formulated and it had compelled party to come to Court to protect its interests.

Headnote : Kopnota

The applicant, a trust whose primary object was to engage in 'nature conservation activities' applied to the Court for an order for access to information held by the first respondent and the F second respondent, the Executive Council for Genetically Modified Organisms, relating to genetically modified organisms. The application was based on the Genetically Modified Organisms Act 15 of 1997 (the GMO Act), the National Environmental Management Act 107 of 1998 ('NEMA'), as well as s 32 of the Constitution of the Republic of South Africa Act 108 of 1996. The second respondent was established under s 3 G of the GMO Act and had the duty of advising the first respondent on all the aspects of GMOs. The respondents contended in limine that the applicant had failed to join the Minister of Environmental Affairs and Tourism and any claim for relief based on NEMA was accordingly incompetent. They contended that the Minister had H a direct and substantial interest in the proceedings: since the applicant sought to enforce the provisions of NEMA, which was administered by the Department of Environmental Affairs and Tourism, the ministerial head of that department of necessity had a direct and substantial interest in the proceedings. Secondly, since the applicant, as a non-governmental organisation seeking to assert its position in a field or industry of which the latter department was the official watchdog, its ministerial head would be in a better position to say I whether or not the applicant was truly acting in the public interest as it claimed.

The applicant had on four occasions between 17 July 2000 and 26 February 2001 requested certain information from the first respondent pertaining to matters relating to the use of GMOs in South Africa. The requests for information were made between the promulgation of the Promotion of J

2005 (4) SA p113

Access to Information Act 2 of 2000 (PAIA) on 2 February 2000, and the date upon which it came into A operation, namely 9 March 2001. The information sought was, inter alia: whether the first respondent had any information on the location of field trials and whether any Bt maize (a GMO) had been released; access to a selection of risk assessments in order to determine their adequacy in relation to certain licences that had been granted; under which legislation field trial licences had been granted prior to the GMO Act coming into operation; an update of all B licences that had been granted since the GMO Act came into operation; submission for the applicant to inspect the licences, as well as any other form of authority granted during the period 1998 to October 2000, as well as permission to inspect the records regarding compliance with public participation provisions under the GMO Act; details of all pending applications pertaining to GMOs; and the exact co-ordinates of C field trials and crops that had been approved for commercial release. Some of the requests were granted by the first respondent but others were not. The respondents contended that since the coming into operation of PAIA all aspects relating to the request and grant of information were governed by PAIA. The first respondent further contended that s 78 of PAIA deferred all applications to a court of law until all internal remedies had been exhausted. D

As to the point in limine

Held, that if the respondents' submission were correct it would mean that any applicant for information requested under PAIA would have to cite the Minister of Justice and Constitutional Development on each occasion that PAIA was invoked E against the information officer of any other government department for access to information in the possession of such other department - simply on the basis that the administration of PAIA had been assigned to the Minister of Justice and Constitutional Development. (Paragraph [14] at 120B/C - E.)

Held, further, that if the first to third respondents had any doubt about the applicant's claim that it acted in the public F interest, they had more than ample opportunity to investigate this issue and deal with it in the answering affidavit deposed to by the Registrar. If necessary, they could even have obtained an affidavit from an official in the Department of Environmental Affairs and Tourism to refute the applicant's assertions in this regard. (Paragraph [14] at 120E - F.) G

As to the merits

Held, as to the retrospective operation of PAIA, that the present was not a case where the applicant did nothing to take advantage of its rights under s 32 of the Constitution: on no fewer than four occasions the applicant had availed itself of its right to information by some individual action or effort on its part. H Consequently, if one were to apply PAIA's provisions retrospectively in the manner contended for by the respondents those provisions would certainly interfere with the applicant's then existing rights, because it would have the effect of rendering its requests for information invalid simply on the grounds that they were not made in terms of, and did not comply with, PAIA, which was in any event not in force at the time such requests were made. In turn, it would have the I further effect of denying the applicant the very right it was seeking to exercise under s 32 of the Constitution. (Paragraph [29] at 130E - G.)

Held, further, the applicant's right of access to information did not only accrue or crystallise when it launched the present proceedings: its rights accrued or 'crystallised' on each of the occasions on which it submitted its requests for J

2005 (4) SA p114

information to the Registrar. The applicant's fourth request was made only on 26 A February 2001, ie some 11 days prior to PAIA coming into operation. Since internal appeals have to be lodged within 60 days, it would have been possible for the applicant, if it was indeed obliged to...

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    ...Minister is the contracting party, it would probably have been impossible to have explained away the apparent negligence in drafting. I 2005 (4) SA p111 Van Rooyen [23] The application is accordingly acceded to; the A respondent's costs to be paid by the applicant. It is ordered that the de......
  • Three Waves of Administrative Justice in South Africa
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    • Juta Acta Juridica No. , August 2019
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    ...information is consistent with thestatement in the main text. In Trustees, Biowatch Trust v Registrar: Genetic Resources,and Others2005 (4) SA 111 (T), the High Court considered a pre-PAIA request by a non-governmentalorganisation for access to information held by a private corporation rela......
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    ...Region and Sasol Mining (Pty) Ltd v Save the Vaal Environment1999 2 SA 709 (SCA) and Trustees, Biowatch v Registrar: Genetic Resources 2005 4 SA 111 (T)to mention a few leading cases; see also Davie ‘Precious and the asbestos dump’ Mail andGuardian, (2010-03-19) http://www.mg.co. za/art icl......
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4 cases
  • Biowatch Trust v Registrar, Genetic Resources, and Others
    • South Africa
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  • Airconditioning Design & Development (Pty) Ltd v Minister of Public Works, Gauteng Province
    • South Africa
    • Invalid date
    ...Minister is the contracting party, it would probably have been impossible to have explained away the apparent negligence in drafting. I 2005 (4) SA p111 Van Rooyen [23] The application is accordingly acceded to; the A respondent's costs to be paid by the applicant. It is ordered that the de......
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3 books & journal articles
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    • Juta Acta Juridica No. , August 2019
    • 15 August 2019
    ...information is consistent with thestatement in the main text. In Trustees, Biowatch Trust v Registrar: Genetic Resources,and Others2005 (4) SA 111 (T), the High Court considered a pre-PAIA request by a non-governmentalorganisation for access to information held by a private corporation rela......
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    • Sabinet Southern African Public Law No. 25-2, January 2010
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    ...Region and Sasol Mining (Pty) Ltd v Save the Vaal Environment1999 2 SA 709 (SCA) and Trustees, Biowatch v Registrar: Genetic Resources 2005 4 SA 111 (T)to mention a few leading cases; see also Davie ‘Precious and the asbestos dump’ Mail andGuardian, (2010-03-19) http://www.mg.co. za/art icl......
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