African Centre for Biodiversity NPC v Minister of Agriculture, Forestry and Fisheries and Others

On 14 July 2014, Monsanto South Africa (Pty) Ltd applied to the Executive Council for Genetically Modified Organisms for a permit for the general release of MON87460, a genetically modified variety of maize designed to reduce yield loss in water-limited conditions. The Executive Council granted the permit on 12 June 2015 after receiving a recommendation from the Advisory Committee. The African Centre for Biodiversity (ACB), an advocacy organisation focused on biosafety and agricultural biodiversity, appealed this decision on 7 August 2015 under section 19 of the GMO Act. The Appeal Board dismissed the appeal on 1 September 2016, and the Minister confirmed this decision on 2 December 2016. ACB then applied to the High Court in April 2017 to review and set aside these decisions. The High Court dismissed the application on 27 June 2023, but granted leave to appeal to the Supreme Court of Appeal.

• Whether the Executive Council complied with section 5(1)(a) of the Genetically Modified Organisms Act 15 of 1997 by determining whether Monsanto must submit an environmental impact assessment in accordance with NEMA
• Whether the precautionary principle enshrined in section 2 of NEMA was properly applied in assessing the application for the release of MON87460
• Whether the State respondents failed to independently and critically evaluate Monsanto's application for the general release of MON87460
• Whether the decisions of the Executive Council, Appeal Board and Minister were reviewable on administrative law grounds

The appeal was upheld with costs including those of two counsel, to be paid by the respondents jointly and severally. The High Court order was set aside and replaced with an order: (1) granting the application with costs; (2) reviewing and setting aside the Executive Council's approval of June 2015, the Appeal Board's decision of 1 September 2016, and the Minister's decision of 2 December 2016; and (3) referring Monsanto's application for the approval of the general release of MON87460 back to the Executive Council for reconsideration.

Section 5(1)(a) of the Genetically Modified Organisms Act 15 of 1997 imposes a mandatory obligation on the Executive Council to determine whether an applicant for a GMO permit must submit an environmental impact assessment in accordance with NEMA. This determination is a separate and distinct inquiry from whether the precautionary principle is triggered. Failure to comply with this mandatory statutory prescript renders the Executive Council's decision unlawful and subject to review and setting aside, as are any subsequent decisions by the Appeal Board or Minister that depend on the flawed initial decision.

The Court extensively discussed the precautionary principle in South African environmental law, noting that it is enshrined in section 2 of NEMA and has its roots in international environmental law including the Rio Declaration and the Cartagena Protocol on Biosafety. The precautionary principle requires a risk-averse and cautious approach where there is uncertainty about environmental impacts, and that lack of full scientific certainty should not be used to postpone measures to prevent environmental degradation. The Court observed that environmental authorities must insist on adequate precautionary measures and conduct thorough investigations rather than accepting applications at face value. The Court noted that the expert evidence in this case appeared to trigger the precautionary principle, identifying concerns including inadequate risk assessment, unsubstantiated allergenicity claims, resistance to pepsin digestion, and lack of data on food processing effects. The Court also observed that the precautionary principle is a statement of common sense directed toward preventing serious or irreversible harm in situations of scientific uncertainty. The Court emphasized the constitutional duty of courts to ensure environmental protection for present and future generations, citing the trusteeship position of the present generation.

This case establishes important principles regarding the application of the Genetically Modified Organisms Act 15 of 1997 and the integration of environmental assessment requirements from NEMA. It confirms that the obligation in section 5(1)(a) to determine whether an environmental impact assessment is required is mandatory and cannot be bypassed without express consideration. The judgment provides extensive guidance on the precautionary principle in South African environmental law, affirming its fundamental role in directing decision-makers when exercising discretion in environmental matters. The case reinforces that environmental authorities have a constitutional duty to take seriously potential threats to health and the environment, and must conduct thorough investigations rather than accepting applicants' submissions at face value. It also clarifies that the precautionary principle is triggered where there is uncertainty about environmental impacts, and that lack of scientific certainty should not be used to avoid protective measures. The judgment emphasizes the courts' special role in protecting the environment and ensuring that decision-makers fulfill their responsibilities as trustees for future generations.