THE BIOWATCH PRINCIPLE
LEGAL COSTS IN CONSTITUTIONAL LITIGATION
Biowatch Trust v Registrar, Genetic Resources & others [2009] ZACC 14
In the case of Biowatch Trust v Registrar, Genetic Resources & others, although the constitutional court case centred around awarding of costs in constitutional litigation, the basis of the litigation by Biowatch concerned the principle of access to environmental information.
In the Constitutional Court, the issue revolved around the proper judicial approach to determining costs awards in constitutional litigation.
The Biowatch Trust (Biowatch), an environmental watchdog, sought information from governmental bodies with statutory responsibilities for overseeing genetic modification of organic material.
In the High Court, the court found that the Registrar for Genetic Resources had been in default of his responsibilities in a number of respects, and made several orders in Biowatch’s favour.
INEPT REQUESTS: THE FIRST COSTS DECISION
But the court did not grant any costs order against the government bodies in favour of Biowatch. This was done because the court was not pleased with the manner in which Biowatch made various requests for information, which it regarded as “inept requests“.
LACK OF PRECISION: THE SECOND COSTS DECISION
The second costs decision concerned Monsanto SA (Pty) Ltd . Monsanto, together with two others was permitted to intervene in the litigation.
The High Court held that Monsanto had been compelled by Biowatch’s conduct to intervene in the litigation.
Because of its displeasure at the lack of precision as to the information sought by Biowatch, the Court ordered Biowatch to pay Monsanto’s costs.
The net result was that Biowatch, even though it had been largely successful in its litigation against the government bodies, which was strongly opposed by Monsanto, was left with paying the legal costs incurred by Monsanto.
HOW SHOULD COSTS AWARDS IN CONSTITUTIONAL LITIGATION BE DETERMINED ?
The Constitutional Court held that the starting point should be the nature of the issues. The courts must consider the way in which a costs order would hinder or promote the advancement of constitutional justice.
It does not matter who the parties are or the causes they advance, but the character of the litigation and their conduct in pursuit of it.
This means paying due regard to whether it has been undertaken to assert constitutional rights and whether there has been impropriety in the manner in which the litigation has been undertaken.
PRIVATE PARTIES AGAINST THE STATE
In litigation between the government and a private party seeking to assert a constitutional right, if the government loses, it should pay the costs of the other side, and if the government wins, each party should bear its own costs.
However, if an application is frivolous or vexatious, or in any other way manifestly inappropriate, the applicant should not expect that the worthiness of its cause will immunise it against an adverse costs award.
WHAT HAPPENS WHEN PRIVATE PARTIES (SUCH AS MONSANTO) HAVE OPPOSITE INTERESTS IN THE OUTCOME OF A DISPUTE ?
Essentially, in the Biowatch Case, the matter involved litigation between a private party (Biowatch) and the State, which had impacts on other private parties (Monsanto and others) who had opposite interests in the matter.
But the character of Biowatch’s challenge was that it was challenging the constitutionality of government action.
The Constitutional Court’s reasoning was as follows:
In general terms costs awards in these matters should be governed by the over-arching principle of not discouraging the pursuit of constitutional claims, irrespective of the number of private parties seeking to support or oppose the state’s posture in the litigation.
CONSTITUTIONAL BLUNDER
The Constitutional Court eventually rectified this “constitutional blunder“ by overturning the High Court’s decision on costs.
It held that there was no justification for awarding costs against Biowatch, and that the High Court’s approach was “demonstrably inappropriate”.
The Constitutional Court ordered the government authorities to pay the costs incurred by Biowatch in the High Court and the Constitutional Court.
