SOUTH AFRICA:

1.A response to 'Biowatch ruling a lesson for NGOs'

2.No GM organisms for local wineries

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1.A response to 'Biowatch ruling a lesson for NGOs'

Josie Eastwood

John Yeld's recent article (Biowatch ruling a lesson for NGOs, Cape Argus 23 November 2007) is a disappointing summation of the issues before the court and does not allow the uninformed reader to develop a balanced understanding of the issues raised by a ruling that should cause alarm bells to ring loudly.

Comment from practitioners in the field is welcomed. However, Advocate Donrich Jordaan (a director of Sylvean Biotech, which is a company established to pursue business opportunities in modern biotechnology) is asked to express a view without any response to his view being invited from other interest groupings within the field. In characterising Biowatch as being to blame for the cost order, Jordaan is quoted in the article as saying that Biowatch 'had not explored other reasonable avenues, such as the procedures provided in the GMO Act, to obtain the information it wanted but had simply rushed to court.' This view is wide of the mark. In fact, Biowatch spent eight months corresponding with the Department in writing and received no response to many of its requests. This fact is noted in the initial judgment, which is the subject of appeal. Dunn AJ chastised the Department for adopting a 'passive role' (paragraph [43] of the judgment) and found that 'Biowatch had no alternative remedy to enforce its rights' (paragraph [66] of the judgment). None of these findings were overturned on appeal.

The reference in the article to the Silvermine Valley Coalition case is contentious, in that its applicant was wholly unsuccessful. Despite this, the court in that case noted that 'NGOs should not have unnecessary obstacles placed in their way when they act in a manner designed to hold the State and indeed the private community accountable to the constitutional commitments of our new society, which includes the protection of the environment.' Without wanting to criticise a judgment that may be the subject of a further appeal, it is difficult to understand why a similar argument is not accepted in the Biowatch appeal when the litigant is substantially successful.

The appeal by Biowatch had two components, one of which was an appeal against the costs order given in favour of Monsanto - the focus of Yeld’s article. However, equally important is the other component, being an appeal against Dunn AJ’s failure to give a costs order in favour of Biowatch against the Department. The absence of such a costs order is worthy of comment, since the court found Biowatch had no option but to approach the court in the face of the Department’s passive approach to its repeated requests for information.

The commentators interviewed by Yeld place emphasis on the way in which requests were framed as justification for a costs order. This overlooks some fundamental points. Firstly, no court has disputed that Biowatch acts in the public interest and for the protection of the environment. We know what protection that conferred on a wholly unsuccessful litigant in the Silvermine matter. Only three of the eleven categories of information sought by Biowatch were found by Dunn AJ to be either overbroad or too vague. This sounds like a substantial success on any analysis. Furthermore, the practical reality underlying the framing of Biowatch’s requests is that Biowatch did not have possession nor had it ever seen the documents to which it sought access. It is difficult then to frame a request with precision. Perhaps for this reason, Dunn AJ noted that, if the holder of the records (the Registrar in this case) 'had any doubt about the nature and or validity of Biowatch’s requests he was, in my view, enjoined to establish precisely what it was seeking and to assist it in its endeavours to achieve that.' (Paragraph [43] of the judgment)

This practical difficulty is likely to resurface in many applications for access to information. Whenever a requester does not have possession of the record, he or she will be at a severe disadvantage in framing a request precisely. This does not justify a costs order that will deter any future similar litigation. We need to consider how we intend to give effect to constitutional rights such as the right of access to information when record holders display a passive or, worse, an obstructive approach to requests for access to critical environmental information.

It must be noted that Biowatch made efforts to minimise the infringement of third parties’ rights. For example, in its initial application papers, Biowatch indicated a willingness to negotiate on the exclusion of confidential information from the records that it sought. As a result, a successful negotiation took place with Pannar (Pty) Ltd, a seed company that voluntarily agreed to make information available and was excluded expressly from the court order granting access to information. Monsanto chose not to follow a similar approach yet was the only third party that persisted with a costs order against Biowatch in the initial application.

NGOs play an important role in advancing constitutional rights and litigation undertaken in good faith rightly deserves the protection of provisions such as section 32 of the National Environmental Management Act, invoked in the Silvermine judgment. As concerned citizens, we need to ask why Goliath-like corporate interests and intractable government departments enjoy enhanced protection over an NGO seeking to advance constitutional rights for the ultimate protection of the environment.

Josie Eastwood (BA LLB LLM (constitutional and administrative law) is an environmental lawyer who was peripherally involved in the Biowatch case whilst employed by the law firm that represented Biowatch in the first application. She has subsequently left the firm and writes this response in her personal capacity.

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2.No GM organisms for local wineries
Grape Wine News, 5 December 2007
http://www.grape.co.za/News/071202GMyeast.htm

Decision taken on application for genetically enhanced yeast

The Department of Agriculture’s GMO Executive Council has denied an an application for the release of genetically modified yeast for use in commercial wine. Biowatch South Africa, one of the main opponents of such introductions, reports that the decision is contained in minutes of the Council’s September meeting, available on the Department of Agriculture’s website.

The introduction of a ‘genetically enhanced malolactic yeast’ was widely opposed within the wine industry, with numerous winery owners and winemakers coming out against the application. So too did the SA Wine Council although it seemed not to take a position against the field trials of genetically modified grapevines, plans for which were announced at about the same time.

No decision has yet been made with regard to the application from Stellenbosch University’s Biotechnology Institute for permission to go ahead with the GM vineyard. Biowatch SA, welcoming the decision not to allow the GM yeast, expreses the hope that the GMO Executive Council ‘will exercise the same caution’ with regard to that application.