The Biowatch Case – a landmark decision on costs awards in public litigation.
What has become known internationally as “the Biowatch case” originated in a genuine attempt to access information from government about the planting of genetically modified crops in South Africa. Biowatch only used the law as a last resort, afterer numerous earlier requests for the information, to which we felt entitled under the Constitution, were stalled or refused.
In 2002, Biowatch brought an access to information case against the state regarding applications to introduce genetically modified crops into the country. The case was heard in 2004, and Biowatch won on several counts with regards to access to information, but was ordered to pay the costs of both the state and a third party that had joined the case to protect its commercial interests.
The costs order was potentially crippling, not only for the organisation, but for civil society as a whole. Biowatch considered it intimidating and demoralising to burden any civil society organisation with court costs if access to information was sought in the public interest. The organisation believed that the costs order was unconstitutional and decided, after careful consideration, to appeal the ruling.
The case was pursued because it was recognised as a highly significant test case for democratic access to information in South Africa. This perspective was corroborated by support for Biowatch not only from other civil society organisations around the world, but also multiple national and provincial government departments and several parliamentary committees.
In February 2009 the case was heard in the Constitutional Court by a full bench. Biowatch and Legal Resources Centre were joined by the Centre for Child Law, Lawyers for Human Rights, and the Centre for Applied Legal Studies. At the hearing, Justice Kate O’Regan said that requiring Biowatch to pay the court costs was “annihilation”, and Justice Albie Sachs noted that courts must be careful not to disempower groups that are empowering the disadvantaged.
The task of writing the judgement was given to Justice Albie Sachs, and judgement was delivered in June 2009. He stated that when determining costs orders, it was the issues that needed emphasis, not the parties, especially where those issues related to constitutional justice. The Constitutional Court reversed the costs order, and also directed the State to pay Biowatch’s costs.
What’s become known internationally as “the Biowatch case” clarifies that public interest litigants acting in good faith will not have to fear that costs will be awarded against them.