Trustees for the Time Being of the Biowatch Trust v Registrar, Genetic Resources and Others

Biowatch Trust, an environmental watchdog NGO, sought information from governmental bodies responsible for overseeing genetically modified organisms (GMOs) pursuant to section 32 of the Constitution (right to access information) and relating to section 24 (environmental rights). After four unsuccessful requests to state officials, Biowatch litigated under the Genetically Modified Organisms Act 15 of 1997. The High Court found the Registrar for Genetic Resources had been in default and made several orders in Biowatch's favour on 8 of 11 categories of information sought. However, the High Court made no costs order in Biowatch's favour against the government, citing inept requests for information. Monsanto SA (Pty) Ltd, a biotechnology company that had supplied confidential information to the Registrar, intervened to protect its confidential information. The High Court ordered Biowatch to pay Monsanto's costs. Biowatch appealed on costs only to the Full Court (dismissed 2-1), applied to the Supreme Court of Appeal for special leave (refused without reasons), then applied to the Constitutional Court for leave to appeal on the costs orders.

• Whether costs awards in constitutional litigation should be determined by the status of parties or by the nature of the issues
• What the general approach should be to costs awards in constitutional litigation between private parties and the state
• What the general approach should be to costs in constitutional litigation where the state fails to fulfil its regulatory responsibilities between competing private parties
• The role of appellate courts in reviewing costs awards
• Whether the High Court misdirected itself in refusing to award costs to Biowatch against the state despite substantial success
• Whether the High Court erred in ordering Biowatch to pay Monsanto's costs

1. Leave to appeal granted. 2. Appeal against Full Court order of 6 November 2007 succeeds; paragraphs 2 and 3 set aside. 3. Substituted order: Appeal against paragraph (d) of High Court order of 23 February 2005 succeeds; paragraph (d) set aside and replaced with: "First, second and third respondents [state parties] are ordered to pay applicant's costs." 4. First, second and third respondents ordered to pay costs of application for leave to appeal to Constitutional Court, including costs of two counsel. No costs order made between Biowatch and Monsanto.

The binding legal principles are: (1) In constitutional litigation, costs awards must be determined by the nature of the issues raised, not by the status, resources, or public interest character of the parties. All litigants are entitled to equal treatment under section 9(1) of the Constitution. (2) The general rule in constitutional litigation between a private party and the state is that if the private party is successful, the state must pay costs; if unsuccessful, each party bears own costs. Departure from this rule requires powerful reasons and careful articulation. (3) In constitutional litigation where the state has failed to fulfil its constitutional and statutory responsibilities in regulating competing claims between private parties, the state should bear the costs of successful litigants, and ordinarily no costs orders should be made between private parties. (4) While courts retain discretion on costs, appellate courts may interfere where the court below exercised discretion based on wrong legal principles, wrong appreciation of facts, or failed to consider material factors such as the constitutional dimension of litigation. (5) The constitutional dimension must be expressly considered in costs awards in constitutional cases; failure to do so constitutes misdirection.

Sachs J made several significant non-binding observations: (1) Public interest NGOs play a vital role in developing constitutional jurisprudence, with interventions leading to important decisions on rights of homeless, refugees, prisoners, children, gender equality, LGBTQ+ rights, and freedom of expression. (2) Donors may be reluctant to fund constitutional litigation if funds risk being consumed by adverse costs orders, though this practical concern does not determine the legal principles. (3) Courts should not use costs awards to indicate approval or disapproval of causes advanced by parties; the judicial oath requires administering justice "without fear, favour or prejudice." (4) Public interest groups should not be tempted to lower ethical or professional standards in pursuit of causes and gain no immunity from sanctions for vexatious, frivolous or abusive conduct. (5) The NEMA expressly contemplates not awarding costs against unsuccessful litigants acting in the public interest to protect the environment. (6) Section 21A of the Supreme Court Act (limiting appeals solely on costs to exceptional circumstances) embodies a meritorious principle, though not binding on the Constitutional Court; appeals on costs alone normally will not be in the interests of justice unless constitutional concerns arise. (7) The state has a duty to act as "impartial steward" in regulating access to information, maintaining objectivity and distance from competing private interests, especially in matters of public controversy.

This is a landmark judgment establishing general principles for costs awards in constitutional litigation in South Africa. It clarifies that: (1) constitutional costs awards turn on the nature of issues, not party status or resources; (2) a general rule applies in state-private party constitutional litigation (successful private party gets costs; unsuccessful party pays own costs) to avoid chilling constitutional rights enforcement; (3) where the state fails regulatory duties affecting competing private interests, the state should bear costs consequences; (4) public interest litigation is vital to constitutional democracy but does not grant immunity from normal litigation standards. The judgment is particularly significant for environmental and access to information rights, and for public interest NGOs pursuing constitutional litigation. It balances encouraging constitutional litigation with maintaining proper litigation standards, and places responsibility for constitutional compliance "at the correct door" - with the state.