The Constitutional Court yesterday ordered three government bodies responsible for monitoring the development of genetically modified organisms to pay the costs of non¬governmental organisation Biowatch in its 2005 high court application.

The judgment deals with the proper approach that courts should adopt when making costs awards in constitutional litigation. It also set an important precedent for those promoting the public interest, allowing them to litigate to gain their rights with¬out necessarily fearing the "chilling effect" of costs orders against them, Biowatch director Rose Williams said.

After a number of unsuccessful requests for information from the registrar of genetic resources, the executive council for genetically modified organisms and the Ministry of Agriculture, to disclose details on all modified crops being grown in SA, Biowatch launched an application in the North Gauteng High Court in Pretoria in 2003 request¬ing that information. Monsanto SA, a producer of genetically modified food, joined the court proceedings to oppose the application by Biowatch.

The high court held that the registrar had been in default of his responsibilities in a number of respects and made several orders in Biowatch`s favour. To mark its displeasure at what it regarded as inept requests for information, the high court then decided to make no order on costs against the governmental bodies. The high court also ordered Biowatch to pay Monsanto`s legal costs. Although Biowatch had been successful in the high court, it found itself in the position of having to foot the bill for all its costs and to pay the costs incurred by Monsanto.

Judge Albie Sachs, in his Constitutional Court judgment in which all judges concurred, said the general rule for an award of costs in constitutional litigation between a private party and the state was that if the private party was successful, it should have its costs paid by the state, and if unsuccessful, each party should pay its own costs. He said the rationale for the general rule was threefold.

Firstly, it diminished the chilling effect that adverse orders on costs would have on parties seeking to assert constitutional rights. Secondly, constitu¬tional litigation might bear not only on the interests of the particular litigants but on the rights of all those in similar situations. Thirdly, the state bore the responsibility for ensuring that both the law and the state`s conduct were con-sistent with the constitution.

"In the present matter, Biowatch achieved substantial success. Not only did it manage to rebut a number of preliminary objections aimed at keeping the case out of court altogether, it also succeeded in getting a favourable response from the court to eight of the 11 categories of information it sought," Sachs said.

Ernest Mabuza