Biowatch is a small South African non-governmental organisation campaigning in the public interest for sustainable agriculture, biodiversity, biosafety and farmers’ rights. For many years it has been opposing the rapid spread of genetically modified (GM) crops in South African agriculture. It argues that there are health and environmental risks resulting from this technology, and that it diminishes food security and food sovereignty.

The judgement in the Constitutional Court was the culmination of a nine-year legal battle. In 2000, the state had consistently refused to provide Biowatch with requested official information about the planting of GM crops in South Africa. Biowatch was forced to take legal action to exercise its constitutional right to this information. In the High Court Biowatch won the right to 8 out of 11 categories of requested information. The acting judge, however, felt that Monsanto – a giant multinational pushing GM crops onto the South African market – had been forced to join the case and that Biowatch should therefore pay its legal costs. This anomaly seemed to fly in the face of justice, but even so, Biowatch lost its appeal in the same court to set aside this costs order. Biowatch was also refused leave to appeal in the Supreme Court of Appeal in Bloemfontein. Exercising the costs order would have weakened if not destroyed Biowatch as an organisation, something which Monsanto seemed bent on doing.

The Constitutional Court was able to hear the appeal, as the case involved constitutional rights. Justice Sachs stated that the High Court had "misdirected itself in the whole matter of costs" through failing to consider the constitutional implications. This enabled the Constitutional Court to pronounce on costs matters in the High Court in cases of constitutional import. Normally High Court judges assume full discretion in the matter of costs awards. Justice Sachs said that the High Court’s decision was "demonstrably inappropriate on the facts, and unduly chilling to constitutional litigation in its consequences."

The case has important implications for South African justice. It means that organisations acting in the public interest will be able to litigate to gain their rights without necessarily expecting the "chilling effect" of costs orders against them. This bodes well for public confidence in the South African legal system.

The case clarifies for the legal profession that constitutional rights need to be taken into account when costs orders are made. The Biowatch case is already being discussed widely in legal circles.

"This verdict is a victory for Biowatch but also sets an important precedent for all those promoting the public interest", said Rose Williams, Biowatch’s director. "Biowatch activities can now continue without the threat of Monsanto putting an end to them. We wish to thank the many hundreds of individuals and organisations who have supported us during the course of the case, as well as the Legal Resources Centre for representing us so ably."