REGULATION: Biowatch South Africa: Cost ruling under fierce attack
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TITLE: Biowatch: Cost ruling under fierce attack
SOURCE: iol, South Africa
AUTHOR: The Mercury, South Africa, by Tony Carnie
Biowatch: Cost ruling under fierce attack
Did High Court Judge Eric Dunn act "capriciously" against the
environmental watchdog group Biowatch, or was he dispensing a legal
"healing balm" to tame its ardour for information?
These are some of the legal arguments which a full Bench of the High
Court is mulling over at the moment in an appeal case that is expected
to have major ramifications for public interest bodies that challenge
the actions of large multinational corporations in South Africa.
The appeal case, argued in Pretoria last week, comes after a partial
legal victory in 2005 by the Biowatch environmental group which went to
court to ferret out information about genetically-modified (GM) plant
experiments in South Africa by American multinational group Monsanto and
other international seed companies.
Although Biowatch won access to a wide variety of information from
Monsanto and the government's GM regulatory bodies, Dunn took the
unusual step of ordering Biowatch to pay the legal costs of Monsanto.
Dunn accepted that Biowatch was entitled to the information and had been
forced to go to court to access some of the information, but said it had
framed its requests in a very broad and "lackadaisical" fashion.
Because of this, he ruled that Monsanto had been compelled to hire
lawyers to prevent the release of commercial information that it
regarded as secret.
However, Biowatch appealed against the costs ruling and, when the case
was argued before a full Bench last week, Dunn's approach came under
fierce attack from Richard Moultrie, counsel for Biowatch.
Moultrie argued that Dunn's ruling was contradictory, lacking in logic
and also "capricious".
"It is submitted that, to the extent that the learned judge made the
costs order on the basis of the manner in which the relief was framed,
he acted capriciously in the exercise of his discretion.
"Not only was the formulation of the majority of the relief found in
fact not to have been vague, there is no logical basis to suggest that
the formulation of the relief caused the proceedings to be opposed or
even extended unduly," he said.
Moultrie argued that neither Dunn nor Monsanto should have had any real
difficulty working out what information Biowatch was looking for.
His ruling was likely to deter other public interest groups from
launching similar litigation, and Dunn had erred by failing to take into
account his own finding that Biowatch was acting in the public interest
and in defence of its constitutional right of access to information.
Moultrie argued that the punitive legal costs ruling against Biowatch
contradicted the general practice of awarding costs to the substantially
It also contradicted South African and international case law where
courts sought to protect litigation in the public interest.
He cited a 1996 ruling by the late Ismail Mahomed, former chief justice
and deputy president of the Constitutional Court, that groups acting in
the public interest "should not be discouraged from doing so by the risk
of having to pay the costs of their adversaries".
Mahomed said this did not mean that such bodies should be completely
protected from this financial risk, but judges should use their
discretion and only penalise them if they acted frivolously, vexatiously
or from improper motives.
A similar form of legal protection for environmental groups was also
written into the National Environmental Management Act of 1998.
But Monsanto's legal counsel, Frank Snyckers, took a very different view.
He said Moultrie had performed a series of unsuccessful legal
"contortions" to advance his case and Dunn had been given no option but
to administer the "healing balm of a costs award" to punish Biowatch for
submitting legally incoherent and "unintelligible" requests for information.
The term "healing balm" had been coined by another judge in a court case
in 1970, but Snyckers argued that Dunn was entitled to apply the balm to
address legal defects in the Biowatch case which caused waste and
expense for other parties.
Nor had Biowatch been able to demonstrate that Dunn had committed a
"demonstrable legal blunder".
Were the court to rule in favour of Biowatch, "it would be undermining
the strong caveat issued by the Constitutional Court and be encouraging
applicants, in particular those seeking all sorts of information from
all manner of parties, to invoke the right to freedom of information,
and to pay no heed at all to taking care to identify with some precision
the information at issue..."
In short, Biowatch had submitted a request for information which was too
broad, too vague and too "majestic".
Judgment has been reserved by Judges Fanie Mynhardt, Justice Phoswa and
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