The Biowatch Principle

Safeguarding Public Interest Litigation in South Africa

If you have ever followed civil court cases or read some judgements from them, you would have come across the “Biowatch Principle”. The term stems from the landmark Constitutional Court (“Con Court”) case Biowatch Trust v Registrar Genetic Resources.¹ This principle has played a crucial role in shaping the South African judiciary’s approach to costs awards in constitutional litigation, particularly in cases where litigants seek to advance constitutional rights against the State.

In South African law, the awarding of costs falls within the discretion of the court.² The default rule is that costs follow the result, meaning the unsuccessful litigant is ordinarily ordered to pay the successful party’s legal costs.³ The primary rationale for this rule is to protect successful litigants from the financial burden of litigation and to discourage frivolous claims. However, a more nuanced approach, à la the Biowatch principle, is required in constitutional matters, particularly where individuals or public interest groups challenge the State’s actions. That said, what exactly is the Biowatch principle? A brief discussion of the Biowatch case will help elaborate.

In 2002, Biowatch Trust, a non-governmental organisation, sought access to information held by the State concerning genetically modified organisms (GMOs). They invoked the right to access information under section 32 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), and the Promotion of Access to Information Act.⁴ The Registrar for Genetic Resources failed to provide the requested information, prompting Biowatch Trust to initiate litigation.

The High Court ruled in Biowatch’s favour, finding that the Registrar had not fulfilled its statutory duties. However, due to Biowatch’s perceived imprecise requests for information, the court declined to award costs in its favour against the State. Additionally, the High Court ordered Biowatch to pay the costs of Monsanto SA (Pty) Ltd, which had intervened to protect its confidential information.

In Biowatch’s own words, “[t]he costs order was potentially crippling, not only for the organisation but for civil society as a whole”.⁵ Biowatch thus appealed to the Full Court of the North Gauteng High Court, which upheld the High Court’s costs orders by a two-to-one majority. After being denied special leave by the Supreme Court of Appeal, Biowatch then applied for leave to appeal to the Con Court.

The Con Court confirmed its jurisdiction, holding that costs orders in constitutional litigation raise constitutional issues. The court looked at public advocacy groups’ role in promoting constitutional justice and considered the ruinous effect that adverse cost orders would have on these bodies and their capacity to advance constitutional justice. In so doing, the court considered four factors concerning cost orders in constitutional litigation:

1. The status of the parties and the issues at hand;
2. The general approach in litigation between private parties and the State;
3. The general approach where the State is sued for a failure to fulfil a constitutional or statutory obligation; and
4. The role of appellate courts in appeals against cost orders.

The judgment recognised the chilling effect of adverse costs orders on public interest litigation and emphasised the importance of ensuring access to justice for constitutional rights claimants. The Court reaffirmed the general rule established in Affordable Medicines Trust v Minister of Health⁶ that, in constitutional litigation against the State:

• If a private party succeeds, the State should bear the costs.
• If the private party fails, each party should bear its own costs unless the litigation was frivolous, vexatious, or an abuse of process.
• Costs should not be determined based on the parties’ financial status but rather on whether the litigation advances constitutional justice.

In the case of Biowatch, the Con Court held that the High Court’s decision to deny Biowatch’s costs was incorrect because Biowatch had achieved substantial success against the State. Furthermore, the imprecise formulation of Biowatch’s requests did not justify the costs orders against it because the litigation was necessary due to the State’s failure to provide information as required by law. The High Court’s order requiring Biowatch to pay Monsanto’s costs was unjustified since the litigation was not a direct dispute between Biowatch and Monsanto but rather a case against the State.

The Con Court set aside the adverse costs orders, ruling that the State must pay Biowatch’s costs in the High Court and the Con Court. The costs order in favour of Monsanto was overturned, and no costs were awarded to Biowatch or Monsanto.

Author’s opinion

The judgment in Biowatch serves as a landmark precedent ensuring that costs considerations do not obstruct constitutional litigation aimed at enforcing fundamental rights, particularly in the public interest sphere. The Con Court’s judgment in Biowatch is commendable for its protection of public interest litigation. It clarified that public interest litigants acting in good faith will not have to fear that costs will be awarded against them.

The initial adverse costs orders could have set a dangerous precedent, deterring civil society organisations from challenging governmental decisions. The Con Court’s reaffirmation of the protective principle in constitutional litigation was crucial for maintaining access to justice. The High Court’s failure to acknowledge the constitutional dimensions of the litigation underscores the importance of judicial oversight in costs matters. The Con Court’s intervention highlights the need for lower courts to consider the broader implications of their decisions carefully.

The author believes the ruling correctly placed the responsibility on the government to facilitate transparency. The State’s failure to comply with its obligations under section 32 of the Constitution was the root cause of the litigation, and the Con Court appropriately ensured that it (the State) bore the financial consequences.

While Monsanto had a legitimate interest in protecting its confidential information, its participation was a result of the government’s failure to properly manage the disclosure process. The decision not to award costs against Biowatch for Monsanto’s involvement aligns with principles of fairness in public interest litigation.

While the judgment safeguards public interest litigation, courts must remain vigilant to ensure that litigants do not use constitutional arguments to shield themselves from legitimate cost consequences in unmeritorious cases. This was aptly put in Mkhatshwa and Others v Mkhatshwa and Others,⁷ where Khampepe J, writing for a unanimous court, said:

“Although the interpretation of section 13 of the Act may invoke constitutional issues, the genesis of this application is a dispute about the validity of an Anton Piller order.  And I am thus inclined to agree with the respondents’ submission that this “constitutes an attempt to bring the matter under a broad blanket of constitutional rights, so as to enable the applicants to then rely on the Biowatch principle”.  Further, it is trite that the principle does not apply to frivolous and vexatious litigation, which is plainly what has spurred this application.  This is revealed by the papers, and the judgment of the High Court, considered together with the aspersions cast upon the Judiciary in the process.  The final nail in the coffin is that the applicants do not seek to assert their constitutional rights against an organ of State.  It follows that there is no basis upon which the Biowatch principle can operate in the applicants’ favour in this application.”

Maloka echoed these sentiments stating that the preferential treatment of costs in constitutional litigation is not a licence for litigants to institute frivolous or vexatious proceedings against the State. Even where litigation is aimed at asserting constitutional rights, if a litigant is guilty of unbecoming behaviour in relation to how proceedings are conducted, it may be mulcted with costs.⁸

Written by Theo Tembo

1. 2009 (6) SA 232 (CC). ↩︎
2. Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) at par [224] and [227]. ↩︎
3. Limpopo Legal Solutions v Eskom Holdings (Soc) Limited [2017] ZACC 34 at par [35]. ↩︎
4. 2 of 2000. ↩︎
5. “Constitutional Court Victory: The Landmark Biowatch Case” https://biowatch.org.za/the-biowatch-case/. ↩︎
6. 2006 (3) SA 247 (CC). ↩︎
7. 2021 (5) SA 447 (CC) at par [18]. ↩︎
8. Maloka, T. C. (2020). Biowatch shield, costs liability for abuse of process and crossfire litigation-Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC). Obiter, 41(1), 186-198. ↩︎