Journal of Environmental Law 22:1 ß The Author [2010]. Published by Oxford University Press.

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doi:10.1093/jel/eqp033
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Analysis
The Biowatch Case: Major
Advance in South African
Law of Costs and Access
to Environmental Justice
Trustees for the time being of the BiowatchTrust v
Registrar, Genetic Resources and others (2009)
Constitutional Court of South Africa,
[2009]ZACC 14

Tracy Humby*

Abstract
In South Africa, the law of costs states that costs are a matter of
judicial discretion, but as a general approach costs follow the result.
In South Africa, as in the UK, these rules are regarded as the single
most significant barrier to access to environmental justice. In a recent
case involving an environmental non-governmental organisation, the
Constitutional Court of South Africa has affirmed a new approach
to the issue of costs in constitutional litigation which is aimed at
facilitating, rather than chilling, litigation of this nature.

*Associate Professor, School of Law, University of the Witwatersrand, Johannesburg, South

Africa (tracy-lynn.field@wits.ac.za). I wish to extend my thanks to Bob Lee and Donald
McGillivray for their useful comparative notes on the question of costs in the United
Kingdom.

...........................................................................
Journal of Environmental Law 22:1 (2010), 125^134
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 126 Tracy Humby

The Constitutional Court of South Africa recently handed down judgment in

Trustees for the Time Being of the Biowatch Trust v Registrar, Genetic Resources &
Others1ça case which necessitated a consideration of the proper approach to
costs in constitutional litigation and which has paved the way for greater
access to environmental justice in South African courts. The background to
the case, outline of the judgment and analysis are set out below.

1. Background
Between July 2000 and February 2001, Biowatchça South African non-
governmental organisation that monitors the use, control and release of
Genetically Modified Organisms (GMOs)çsubmitted four requests to the
Department of Agriculture for information on how permitting decisions for
GMO crops had been made. Biowatch based its requests on the right of access
to information enshrined in Section 32(1) of the South African Constitution2
and various other statutory provisions. The Department responded partially
to some of these requests and ignored others. Biowatch thereupon launched
an application in the North Gauteng High Court citing the Registrar for
Genetic Resources, the Executive Council for Genetic Resources and the
Minister of Agriculture as respondents.3 In February 2003 Monsanto, a diversi-
fied biotechnology company, applied to join the proceedings citing its direct
and substantial interest in the subject matter as grounds. The intervention of
two further biotechnology companiesçStoneville Pedigreed Seed Company
and D&PL SAçwas subsequently endorsed at the trial.
In its application, Biowatch sought access to 11 categories of information
held by the Registrar for Genetic Resources. In order to decide whether to
grant Biowatch access to such information, the trial judge Acting Judge Dunn
had to deal with an array of technical arguments raised by the respondents.
On these technical points, the respondents were largely unsuccessful. Dunn
subsequently decided that Biowatch should be granted access to eight of
the categories of information to which it had sought access. He expressed his
irritation, however, with the manner in which Biowatch had framed its
requests for access to information both initially and in the notice of motion,
finding that they were exceptionally broad. While conceding that a requester
for access to information would not always have knowledge of the precise

1 CCT80/08 [2009] ZACC 14.

2 s32 provides as follows: ‘(1) Everyone has the right of access to (a) any information held by the
state; and (b) any information that is held by another person and that is required for the exer-
cise or protection of any rights.’ The national legislation mandated by the Constitution to
give effect to this rightçthe Promotion of Access to Information Act 2 of 2000çwas not
yet in effect at the time Biowatch launched its court application.
3 The case is cited as Trustees, Biowatch Trust v Registrar: Genetic Resources & Others 2005 (4) SA
111 (T).

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 The Biowatch Case 127

description of the record in which the information sought was contained,

he found some merit in the respondents’arguments that the requests were vex-
atious, oppressive and amounted to a ‘fishing expedition’. He nevertheless
decided that Biowatch should not be non-suited on this ground.
But in a shock move, in awarding costs the judge decided that while
Biowatch was substantially successful on the merits, it should not be awarded
costs against the State (the first costs order) and that it should be required to
pay the costs of Monsanto (the second costs order).4 The judge’s reasoning in
this regard was limited to the following paragraph:
As far as costs are concerned, the general rule in litigation is that the
costs should follow the result. However, although Biowatch has been par-
tially successful in obtaining some of the relief sought, the manner in
which some of its requests for information were formulated, as well
as the manner in which the relief claimed in the notice of motion was
formulated, has convinced me that it should not be granted a costs
order in its favour in these circumstances. Furthermore, the approach
adopted by it compelled Monsanto, Stoneville and D&PL SA to come to
court to protect their interests. The issues were complex and the
arguments presented by them were of great assistance. Stoneville
and D&PL SA did not seek any costs order against the applicant. On behalf
of Monsanto its counsel sought an order for costs against the applicant.
In my view the applicant should be ordered to pay Monsanto’s costs.
No other order as to costs is warranted in the circumstances of this case.5
On 23 April 2007, Biowatch appealed against these costs orders to a full
bench of the North Gauteng High Court. One of their main arguments on
appeal was that in making the costs orders Acting Judge Dunn had failed to
properly consider the principle developed in an ad hoc fashion by the
Constitutional Court and other courts, that in constitutional litigation the
party raising a constitutional issue should not have costs awarded against it.
The appeal, however, was dismissed by a majority of two to one.6 Mynhardt J,

4 On a comparative note, in England and Wales, an interested third party would not normally
be entitled to costs unless it can show that there was likely to be a separate issue on which
it was entitled to be heard which was not covered by counsel for the State party. (See the prac-
tice note following Bolton MDC v Secretary of State for the Environment [1995] 1 WLR 1176.)
While this requirement does not apply in the South African law of costs, the separate issue
that concerned Monsanto was the confidentiality of the information to which Biowatch
sought access. Arguably this point could have been sufficiently canvassed by the counsel for
the State parties.
5 Para 68.
6 The majority decision is cited as Trustees of the time being of the Biowatch Trust v Registrar,
Genetic Resources & Others [2007] ZAGPHC 270 and was handed down on 6 November 2007.
The minority decision is cited as Trustees of the time being of the Biowatch Trust v Registrar,
Genetic Resources & Others [2008] ZAGPHC 135 and was handed down on 13 May 2008 (the
citations here are those used by the South African Legal Information Institute (SAFLII), an
open access resource 5http://www.saflii.org4 accessed 22 December 2009). My critical

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 128 Tracy Humby

writing for the majority, slavishly adhered to the test for interference by an
appellate court in the discretion of the court a quo, ie that an appellate court
will only interfere with the trial court’s discretion where it has been found
that the judge failed to exercise his or her discretion ‘judicially’.
Biowatch attempted to directly appeal this decision to the Constitutional
Court but their application for leave to appeal was dismissed on the basis that
it was not in the interests of justice to hear the case at that stage.7 In August
2008, Biowatch thereupon applied for leave to appeal to the Supreme Court of
Appeal, but this application was also dismissed, without reasons and with
costs. As a last resort, Biowatch approached the Constitutional Court a
second time for leave to appeal the costs orders and the judgmentçdelivered
by Justice Albie Sachsçforms the subject matter of this analysis.

2. The Judgment8
After finding that the case raised a constitutional issue and that it was indeed in
the interests of justice to hear it, Sachs J turned to a consideration of whether
costs awards in constitutional litigation should be determined by the status of
the parties or by the issue. This related to the argument that when making the
costs orders the trial judge had misdirected himself by failing to take into
account (i) the fact that Biowatch was a public interest non-governmental orga-
nisation; and (ii) that it was not litigating on its own behalf but in the public
interest. Monsanto had, however, rigourously disputed the public interest char-
acterisation of Biowatch’s interest and conduct in the matter.
The Court held that it was not correct to begin the enquiry by a characteri-
sation of the status of the parties because equal protection before the law
required that costs awards not be dependent on whether the parties were
acting in their own or in the public interest, or whether they were financially
well-endowed, indigent or reliant on external funding. ‘The primary consider-
ation in constitutional litigation’, the Court held, ‘must be the way in which
a costs order would hinder or promote the advancement of constitutional
justice’.9 While the Constitution was a transformative one based on the recog-
nition that there was a great deal of systemic unfairness in society, this had
no bearing ‘on the entitlement of all litigants to be accorded equal status

analysis of these decisions has been published as Tracy Humby, ‘Reflections on the Biowatch
dispute ^ Reviewing the fundamental rules on costs in light of the needs of constitutional
and/or public interest litigation’ (2009) PER.
7 The Trustees for the Time Being of the Biowatch Trust v The Registrar of Genetic Resources and
Others Case no CCT 37/08, unreported.
8 In this section, the paragraph references in parentheses refer to the paragraphs in the
judgment.
9 Para 16.

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 The Biowatch Case 129

when asserting their rights in a court of law’.10 This was in line with the
Constitutional Court’s prior decision in the Affordable Medicines11 case where
it had overturned a High Court’s order of costs against a relatively well-off
medical practitioners’ trust that had launched unsuccessful constitutional
proceedings.12 While recognising how vital the participation of public interest
groups had been in representing the vulnerable sectors of society in consti-
tutional jurisprudence,13 Justice Sachs held that a party should not be accorded
privileged status merely because it was acting in the public interest or
happened to be indigent. In particular, it should not be immunised from appro-
priate sanctions if its conduct had been vexatious, frivolous, professionally
unbecoming or similarly abusive of the process of the court.14 Conversely, a
litigant should not be treated unfavourably merely because it was armed with
a large litigation ‘war-chest’ or was asserting commercial, property or privacy
rights against poor people or the State. As the judicial oath of office affirmed,
‘judges were required to administer justice to all alike, without fear, favour or
prejudice’.15
Justice Sachs then proceeded to articulate the general approach to costs
orders in two distinct categories of constitutional litigation. First, in suits
between private parties and the State, the general approach was that if the
government lost it should pay the costs of the other side, and if the govern-
ment won each party should bear their own costs; ie an unsuccessful litigant
in proceedings against the State ought not to be ordered to pay costs (the rule
affirmed in the Affordable Medicines case).16 The rationale for this general
approach was threefold: it diminished the chilling effect adverse costs orders
would have on constitutional litigation; it recognised that parties who raised
constitutional issues also raised the rights of those in similar situations and
that each constitutional case which was heard enriched the body of constitu-
tional jurisprudence; and it affirmed that the State bore primary responsibility
for ensuring that both the law and State conduct were consistent with the
Constitution.17 Nevertheless, judicial discretion was not ‘straightjacketed’.18
If an application was frivolous or vexatious or in any other way manifestly
inappropriate, a judge could depart from the general approach, although
this should not be done lightly and the court should set out reasons that were
carefully articulated and convincing.19

10 Para 17.
11 Affordable Medicines Trust & Others v Minister of Health & Another [2005] ZACC 3; 2005 (6)
BCLR 529 (CC); 2006 (3) SA 247 (CC).
12 Para 19.
13 Ibid.
14 Para 18.
15 Para 20.
16 Paras 21^2.
17 Para 23.
18 Para 9.
19 Paras 24^5.

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 130 Tracy Humby

The second category of constitutional litigation distinguished by the Court

involved suits where the State was sued for failure to fulfil its responsibilities
for regulating competing claims between private parties.20 Proceedings of this
nature would involve litigation between a private party and the State with
‘radiating impact’ on other private parties with competing claims.21 The gen-
eral approach to costs in such proceedings should be that of not discouraging
the pursuit of constitutional claims, irrespective of the number of private
parties seeking to support or oppose the State’s position in litigation.22 Later
the Court held that in this case, the State should bear the cost of litigants
who had been successful against it and ordinarily there should be no costs
orders against private litigants who become involved.23
After affirming the rule that an appellate court would not readily interfere
in the award of costs by a trial judge,24 the Court applied these considerations
to the facts in the Biowatch dispute. It highlighted that the case had implicated
constitutional issues both as regards the right of access to information
protected by Section 32 and that the information sought related to environ-
mental rights protected by Section 24 of the Constitution.25 It found that on
procedural and substantive issues, Biowatch had achieved substantial success
against both the governmental agencies and Monsanto and that both had
obdurately raised a series of unsustainable technical and procedural objections
to Biowatch’s suit which prolonged the litigation unnecessarily.26 Justice
Sachs was at pains to highlight that it was the State’s failure to fulfil its consti-
tutional and statutory duties to balance the competing claims of Biowatch
and Monsanto which compelled Biowatch to litigate in the first place.27 The
government’s duty, he maintained, was to act as an ‘impartial steward’ regard-
ing the information sought; the greater the public controversy, the more the
need for objectivity, transparency and fidelity to the rule of law. It was the
government’s role to encourage those with diametrically opposed opinions,
such as Biowatch and Monsanto, to submit themselves to the rational balanc-
ing of interests provided by the Constitution and legislation, and the govern-
ment had manifestly failed to do this.28 The litigation in Biowatch fell within

20 The Court distinguished a third categoryçwhere constitutional claims were raised between
private parties. This had been the case in, for instance, the case of Barkhuizen v Napier
[2007] ZACC 5; 2007 (7) BCLR 691 (CC); 2007 (5) SA 323 (CC) where a motorist raised a
claim against a private insurance company relating to the constitutionality of a standard-
form contract. Such cases arose infrequently because the nature of constitutional issues fre-
quently invoked the State as a party. The court accordingly did not specify a general approach
to costs orders in this third category.
21 Para 28.
22 Ibid.
23 Para 56.
24 Paras 29^31.
25 Para 45.
26 Para 37.
27 Paras 37, 45.
28 Para 45.

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 The Biowatch Case 131

the second category; ie it was litigation in which private parties with compet-
ing interests were involved, not to settle a dispute between themselves but to
determine whether the State had properly shouldered its constitutional and
statutory obligations.29 Since it was clear that neither the trial judge nor the
full bench on appeal had proper regard to the constitutional dimension of
the case,30 this constituted a serious misdirection and justified intervention
by the Constitutional Court. The State was accordingly ordered to pay
Biowatch’s costs in the High Court and Constitutional Court and the order
directing Biowatch to pay Monsanto’s costs was set aside.31

3. Analysis
The rules relating to costs have been identified as the single most significant
barrier to access to environmental justice in the UK and the issue is currently
under review in terms of the broader investigation into the costs of civil litiga-
tion led by Lord Justice Jackson.32 This is also true of South Africa where the
law of costs is underpinned by the two time-honoured principles that the
court of first instance has a discretion to award costs and that costs ‘follow
the event’ or that the successful party should, as a general rule, have his or
her costs. In the environmental context, the coupling of these principles
spawns the risk and uncertainty that a well-meaning but resource-stretched
environmental non-governmental organisation will be ordered to pay the
costs of a deep-pocketed private corporation or organ of state. As Chakrabarti
and others note, the risk of an adverse costs order and, most crucially the diffi-
culty of quantifying that risk, constitute the biggest hurdle for public interest
litigants.33 It also looms large in the capacity of ‘SLAPP’ suits (Strategic
Litigation against Public Participation)34 to effectively deter public interest
litigation.

29 Para 54.
30 Paras 41^2.
31 Para 60.
32 See 5http://www.judiciary.gov.uk/about_judiciary/cost-review/reports.htm4 accessed 26
January 2010. The issues pertaining to environmental litigation are addressed in vol 1, ch
36. See also the executive summary of the findings of the Working Group on Access to
Environmental Justice published (2008) 9 JPEL 1253; the findings of the Environmental
Justice Project published under Carol Hatten, Pamela Castle and Martyn Day, ‘The
Environment and the Law ^ Does our Legal System Deliver Access to Justice? A Review’
(2004) 6 Env L Rev 240, and the David Hall Memorial Lecture delivered by Lord Justice
Brooke, ‘Environmental Justice: The Cost Barrier’ (2006) 18 JEL341.
33 Shami Chakrabarti, Julia Stephens and Caoilfhionn Gallagher, ‘Whose Cost the Public
Interest’ (2003) PL 697, 699.
34 The acronym ‘SLAPP’ was coined by two University of Denver Professors in the 1980s. It
describes a form of litigation in which a large organisation, or in some instances a well-
resourced individual plaintiff, attempts to intimidate and silence a less powerful critic by so
severely burdening them with the effort and costs of defending a legal suit that they abandon
their criticism. A useful UK-based source is F Donson, Legal Intimidation: A SLAPP in the

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 132 Tracy Humby

Recognising the potential for adverse costs orders to ‘chill’ constitutional

litigation, over the years the South African Constitutional Court developed
a fairly consistent position on the award of costs in such matters: Where the
individual or entity contending for the protection of constitutional rights
was successful, costs would follow the result. However, where the respondent
State entity was successful it would not receive its costs if the applicant had
raised an important constitutional issue against it.35 It was unclear, however,
how this position related to the principle that costs are within the trial judge’s
discretionçwhether it was simply a factor which the trial judge could take
into account or whether it was a starting point for the exercise of discretion,
requiring justification if it was departed from. It therefore did not adequately
remove the risk and uncertainty from public interest litigation.
In the environmental sphere, the South African legislature has attempted to
alleviate the uncertainty associated with environmental litigation through
Section 32(2) of the National Environmental Management Act 108 of 1998
(NEMA) which states that a court ‘may’decide not to award costs where an appli-
cant contending for environmental rights fails to secure the relief sought if the
court is of the opinion that the applicant ‘acted reasonably out of a concern for
the public interest or in the interest of protecting the environment and had
made due efforts to use other means reasonably available for obtaining the
relief sought’. That this provision does not effectively immunise public interest
environmental litigants from adverse costs orders became crystal clear in the
Biowatch case where, in the first appeal, it was accepted that this provision of
NEMA was not applicable to the dispute that, alternately, the applicant had
failed to make due efforts to use other reasonably available means and that, in
any event, the application of this provision was in the trial judge’s discretion.
In the Biowatch decision, the Constitutional Court has made a remarkable
effort to establish clarity on the question of costs in constitutional litigation.
There can now be no doubt that the two principles articulated in the case con-
stitute the ‘proper starting point’36 with regards to costs in constitutional
litigation, that they should not be departed from lightly and that where this
does occur it should be fully justified in the judgment. The norm of account-
abilityçwhich is one of the key norms underlying the Constitutionçis thus
made applicable to judicial reasoning in respect of this issue.37

Face of Democracy (Free Association Books, London 2000) which has a strong focus on anti-
environmental protection suits.
35 See the cases discussed in Humby, n 6, above.
36 Para 9.
37 In South African Broadcasting Incorporation Ltd v National Director of Public Prosecutions 2007
(1) SA 523 (CC) para 32 the Constitutional Court stated: ‘The foundational constitutional
values of accountability, responsiveness and openness apply to the functioning of the judi-
ciary as much as to other branches of government.’

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 The Biowatch Case 133

At first blush, the Court’s rejection of an approach that would take the
nature of the parties or the causes they advance into account is a point of
criticism: By failing to acknowledge that parties do not come to court with an
equality of armsçespecially in the environmental sphere çthe Court in fact
perpetuates the systemic unfairness that bedevils access to justice in South
Africa. But this avoidance is in fact a carefully considered and brilliant move
because it effectively circumvents difficult questions as to which parties are
acting ‘in the public interest’ and which are not, or what the threshold might
be if the capacity of the ‘war chest’ with which litigants come to court should
be taken into account. Unlike the test formulated with regard to protective
costs orders in the UK,38 or attempts to formulate a special approach to costs
in public interest litigation in other jurisdictions,39 the Constitutional Court’s
approach in the Biowatch matter leaves very little room for a subsequent
restrictive interpretation of the principles it lays forth. All that matters is
whether the litigation has been undertaken to assert constitutional rights and
whether there has been any impropriety in the manner in which it has been
conducted.40 It is worrying, however, that the Court failed to consider and
clarify the relationship between the Biowatch costs principles and Section
32(2) of the NEMA. It is hoped that courts will not subsequently use the crite-
ria specified in this provisionçparticularly that a party was acting ‘out of a
concern for the public interest’ and that the party ‘had made due efforts to
use other means reasonably available for obtaining the relief sought’çto limit
the protection which the principles afford to public interest environmental
litigants.
It is interesting to observe that the Court’s identification of suits in which
the State is sued for failure to fulfil its constitutional and statutory obligations
to regulate competing claims between private parties as a class, and its advoca-
tion of the proper role of the State in regard to such suits, probably constrained
it from taking the nature of the parties into account. In effect, the Court had
to present itself as a model of impartiality, objectivity and distance from

38 The test, as formulated in R (Corner House Research) v Secretary of State for Trade and Industry
[2005] EWCA Civ 192; [2005] 1 WLR 2600 incorporates the criteria, amongst others, that (i)
the issues raised ‘are of general public importance’; and (ii) the applicant has ‘no private inter-
est’ in the outcome of the case. These criteria provide fertile ground for restrictive and limit-
ing interpretations that would circumscribe the protection of protective costs orders. For an
analysis of this case see Richard Stein and Jamie Beagent, ‘Court of Appeal (Civil Division):
R (Corner House Research v The Secretary for Trade and Industry’ (2005) 17 JEL 413. For an over-
view of recent cases in the UK that have grappled with the Corner House test, see Justine
Thornton, ‘Significant UK Environmental Cases 2008 ^ 09’ (2009) 21 JEL 323.
39 For instance, the approach of the High Court of Australia in Oshlack v Richmond River Council
[1998] HCA 11; or the Privy Council in New Zealand Maori Council v Attorney-General of New
Zealand [1994] 1 AC 466 and Belize Alliance of Conservation Non-Governmental Organizations
v Department of the Environment & Anor (Belize) [2003] UKPC 63.
40 Para 20.

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 134 Tracy Humby

competing private interests if it was to hold that such features properly charac-
terise the role of the State in deciding between competing private claims.
The Court failed to take into account that its costs principles could result
in the dissipation of public funds on costly litigation when such funds are
urgently required for important social programmes.41 The Court’s approach
could be interpreted, however, as an attempt to create a strong incentive on
the part of the State to actually fulfil its constitutional and statutory obliga-
tions and to eschew the litigation route. Paradoxically, while the Biowatch
principles are being celebrated as a major advance for public interest environ-
mental litigation, the principles will be more effective if there is less litigation,
not more, because the State is properly protecting and fulfilling constitutional
rights, including the right to an environment that is not harmful to health
or well-being.

41 Interestingly, the Constitutional Court’s judgment in the Biowatch matter was made in the
wake of its decision in Nyathi v Member of the Executive Council for the Department of Health,
Gauteng & Another 2008 (9) BCLR 865 (CC) where it confirmed a decision of the Transvaal
Provincial Division of the High Court amending s3 of the State Liability Act 20 of 1957. In
essence, the courts have confirmed that this provisionçwhich prohibited the issue of an
execution, attachment or like process against any State defendant or respondent or against
any property of the Stateçis unconstitutional. The State has now tabled a draft
Constitutional Amendment Bill (see GN 689 Government Gazette 32289 of 1 June 2009)
which, if passed by Parliament, will insert a new s173A into the South African Constitution,
providing that an Act of Parliament must prescribe ‘reasonable (a) procedural requirements
for the institution of legal proceedings against the state; (b) measures for enforcing the execu-
tion of final court orders against the state, including payments to be made by the state to
comply with final court orders; (c) measures to enable the state to deal efficiently and effec-
tively with all legal proceedings in which the state is involved.’ It is envisaged that this Act
of Parliament will repeal the current State Liability Act. Public interest organisations are con-
cerned that the State will use this legislative avenue to limit its liability for final court
orders. Moreover, recent news reports suggest that the State is currently grossly underesti-
mating the extent of its liability in this regard: The Cape Times reported that the Director-
General of the Department of Justice has stated under oath that the government has to pay
88 judgment debts totalling R3.5 million. However, a survey of just 1.08% of South African
law firms recorded 131 unpaid judgments totalling R12.5 million (see Legalbrief Today, Issue
2363, 24 July 2009, 5www.legalbrief.co.za4accessed 22 December 2009).

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