Landmark Constitutional Court ruling hailed as victory for public interest litigation

Groups fighting expensive court battles to protect the environment got a boost from the Constitutional Court last week when biodiversity and biosafety interest group Biowatch overturned a high court judgment that would have bankrupted them.

The judgment has been hailed as a victory for public interest litigation, in which a single individual can take on a big player.

A high court judgment ordered the small NGO to pay multinational bio-tech food producer Monsanto`s costs, signalling that organisations could face a stiff bill if they lost in a court case, even when fought in the public interest

Last week Constitutional Court Judge Albie Sachs set aside the costs order and the costs incurred in the high court hearings in favour of Biowatch. The 11 judges were unanimous. Sachs called the case "a matter of great interest to the legal profession, the gen¬eral public and bodies concerned with public interest litigation".

Melissa Fourie, a founder of the new Centre for Environmental Rights that will focus on environmental public interest litigation, believed the judgment would invigorate environmental groups`search for justice.
She said although it was "superb to have a positive statement from the Constitutional Court on the importance of public interest litigation and the invaluable role of public interest groups in our constitutional democracy", the positive impact of the Biowatch ruling was almost more psychological than legal.

`For the past few years many NGOs in the environment sector have shied away from litigation for fear of being crippled by a similar punitive costs order," she said. "Once an inappropriate order has been made, the resources required to have such an order over¬ruled can paralyse NGOs."

She said Sachs specifically recognised the role of civil society by declaring: "Similarly, the protection of environmental rights will not only depend on the diligence of public officials, but on the existence of a lively civil society willing to litigate in the public interest"

Fourie said a lively civil society is possible only if the courts assist them with "appropriate costs orders and if there is sufficient funding available in the first place, whether through a Centre for Environmental Rights or other legal NGOs such as the Legal Resource Centre".

Biowatch`s case was fought by the centre, whose director, Rose Williams, said it had important implications for South African justice. "The case clarifies that constitutional rights need to be taken into account when costs orders are made," Williams said.

The Biowatch case was already being discussed widely in legal circles. The Constitutional Court action started in 2000 after the state had consistently refused to give Biowatch information about the planting of genetically modified crops in South Africa. The organisation approached the Johannesburg High Court to force the government to hand over the information.  Even though it won the right to the information, Acting Judge Eric Dunn felt that GM supplier Monsanto had been forced to join the case and that Biowatch should therefore pay its legal costs. Biowatch was refused leave to appeal.

"This anomaly seemed to fly in the face of justice," said Williams. "But even so, Biowatch lost its appeal in the same court to set aside this costs order.

"Exercising the costs order would have weakened, if not destroyed, Biowatch as an organisation, something Monsanto seemed bent on doing."

Sachs found that the high court had "misdirected itself in the whole matter of costs" by failing to consider the constitutional implications. He said the high court`s decision was "demon-strably inappropriate on the facts and unduly chilling to constitutional litigation in its consequences".

Before the judgment environmental crusader Nicole Barlow said the costs threat were a constant worry for activists wanting to take polluters and ruthless developers to court. "There are an incredible number of cases we want to fight, but the resources simply don`t exist and could leave activists bankrupt," she said.