Trustees for the time being of the Biowatch Trust v Registrar, Genetic Resources and Others

Biowatch Trust, an environmental public interest NGO, sought access to information from government bodies responsible for regulating genetically modified organisms under the Genetically Modified Organisms Act. The High Court found that the Registrar for Genetic Resources had failed in several statutory duties and granted substantive relief to Biowatch, but made no costs order in its favour against the state because it considered Biowatch’s information requests poorly formulated. Monsanto and other GMO producers intervened to protect confidential information they had supplied to the Registrar. Although Biowatch ultimately obtained information opposed by Monsanto, the High Court ordered Biowatch to pay Monsanto’s costs, finding that Biowatch’s conduct had necessitated Monsanto’s intervention. Biowatch unsuccessfully appealed these adverse costs orders to the Full Court and was refused special leave by the Supreme Court of Appeal. Biowatch then sought leave to appeal to the Constitutional Court on the costs issue alone.

Leave to appeal was granted. The appeal was upheld. The adverse costs orders made against Biowatch in favour of Monsanto were set aside, and the failure to award costs to Biowatch against the state respondents was corrected, with each party ordered to bear its own costs in respect of the constitutional litigation.

This is a leading Constitutional Court authority on costs in constitutional litigation. It established protective principles designed to prevent adverse costs orders from chilling public interest and constitutional litigation, particularly in environmental and access-to-information cases. The judgment is foundational in ensuring access to courts and the effective enforcement of constitutional rights in South Africa.