Groundbreaking judgment of the Supreme Court of Appeal in ACB vs Monsanto/Bayer and the State

After nine long years of arduous litigation by the African Centre for Biodiversity (ACB), a full bench consisting of five judges of the Supreme Court of Appeal (SCA), sitting in Bloemfontein, South Africa, has today set aside several layers of decision-making regarding the approval of the application by Monsanto, now Bayer, for commercial release of its drought-tolerant genetically modified (GM) maize, MON87460. Significantly, the SCA has also set aside the findings of the court of the first instance, Judge Tolmay, on the precautionary principle.

The ACB has consistently maintained that the Executive Council: GMO Act (EC) merely rubber-stamped Monsanto’s application for authorisation, uncritically accepting its paucity of evidence that the genetically modified organism (GMO) poses no threat to human health or the environment and ignoring the contrary expert evidence tendered by ACB’s experts.

Unanimously, the SCA found that there was an abject failure by the EC to comply with a mandatory prescript contained in section 5(1)(a) of the GMO Act1 to determine whether Monsanto was required to submit an environmental impact assessment by the National Environmental Management Act (NEMA). The SCA, in its judgment, noted that it was a relatively straightforward matter for the state to have adduced evidence that a determination was made one way or the other, but it had failed to do so.

According to Mariam Mayet, ACB’s director, “The finding is extremely significant because it brings into sharp relief the rubber-stamping nature of decision-making in South Africa concerning GMOs – something we have witnessed and resisted over the last 21 years – especially the failure to make a proper determination of the risk posed by GMOs to safeguard the constitutional right to an environment that is not detrimental to our health and well-being. This judgment has vindicated us and made these long years of struggle very worthwhile.”

This is the first judicial decision concerning GMO decision-making in South Africa and as such is precedent-setting, particularly since it sets aside three layers of decision making ­– by the EC, the Appeal Board, and the Minister, as well as the 2023 High Court judgement of Justice Tolmay.

The ACB also welcomed the findings of the SCA regarding the applicability of the precautionary principle. Judge Tolmay’s findings came under the SCA’s scrutiny, as the learned judges of the SCA viewed the precautionary principle as being central to the matter before it.

Previously, in the court of the first instance, Judge Tolmay rejected the ACB’s arguments, regarding procedural fairness in the process, as she claimed that it was fair and refused to refer the matter back to the EC to reconsider its decision. The ACB based its argument on the precautionary principle, which requires that where an activity may significantly affect the environment, decision-makers must apply a risk-averse and cautious approach that considers the limits of current knowledge about the consequences of decisions and actions.

The SCA notes that the precautionary principle is deeply rooted in almost every recent international environmental agreement. The court also traversed South Africa’s well-established jurisprudence regarding the precautionary principle and found that Judge Tolmay was wrong in finding that it does not have direct relevance in review proceedings.

The SCA said that such an approach adopted by Judge Tolmay disregards the fundamental role that the precautionary principle plays in directing decision-makers in the exercise of their discretion. Further, the court found that the current state of knowledge and uncertainty, the potential for serious and irreversible harm, and the adoption of a cautious approach are consistent with the subject matter, scope, and purpose of the GMO Act.

The SCA found that Judge Tolmay had conflated the obligation arising from section 5(1)(a) with the applicability of the precautionary principle, finding erroneously that an environmental impact study would only be required in the event of the precautionary principle being triggered. The SCA ruled that the precautionary principle was triggered and ought to have been applied.

Second, whether the EC complied with section 5(1)(a) by considering the necessity of an environmental impact study to ascertain the impact on the environment of the proposed commercial release of MON87460 was a separate and distinct inquiry from whether the precautionary principle was triggered and should have been applied.

As a result, the ACB’s appeal succeeded and the state together with Monsanto/Bayer must pay the ACB costs, including the costs of its two counsels.

In the final analysis:
* The judgment of Judge Tolmay has been set aside.
* The approval by the EC during or around June 2015 of Monsanto’s application is reviewed and set aside.
* The Appeal Board’s decision of 1st September 2016 dismissing the ACB’s appeal is reviewed and set aside.
* The Minister of Agriculture, Forestry and Fisheries decision of 2nd December 2016 confirming the dismissal of the appeal and the EC’s approval is reviewed and set aside.
* Monsanto's (now Bayer’s) application for commercial release of its GM drought-tolerant maize MON87460 is sent back to the EC for reconsideration.

Source: ACB