The South African Civil Society Information Service

The Future of Civic Litigation in the Public Interest

By Saliem Fakir · 7 Jul 2009

Picture: srqpix

On June 3, 2009 Constitutional Court Judge, Albie Sachs, ruled in favour of a public interest NGO, Biowatch, in a case that tested how costs are awarded. The ramifications of the ruling will be far reaching for civic organizations and the defence of public interest causes.

The details of the judgement have been glanced at superficially and fleetingly in the mainstream media. They deserve a deeper appraisal.

If anything, the intent of the judgement is to cover ground wider than the nature of the litigant or their cause. They touch on questions of fairness and constitutional advancement.

The judgement primarily hovers around the issue of costs and deterring frivolous pursuits from any party. Significantly, Sachs’ deliberations also touched on how courts exercise their discretion when making cost orders.

Sachs’ ruling sets out the primacy of the constitutional setting when deciding cost orders.

Some years have passed since Biowatch won a small victory over the Registrar for Genetic Resources, a government agency located in the Department of Agriculture overseeing the Genetically Modified Organisms Act 15 of 1997. Biowatch sought to have the Registrar’s files opened up to public scrutiny in order to establish how it made decisions permitting the planting of genetically modified crops in South Africa.

It proved to be a costly victory that would have sunk Biowatch and lay the foundation for a major setback to many civil society organisations contemplating civic actions against the state and large corporations.

The government agency refused to pass relevant information to Biowatch following several requests. Rather than taking a balanced view on the matter, in many respects, the agency acted partially favouring the interests of Monsanto, a multinational agricultural company that amongst other things, sells genetically modified seeds.

Biowatch won the right of access to information, but lost against Monsanto. Monsanto entered the fray in support of the Registrar because it was concerned that confidential information would end up in the public domain.

Monsanto intervened when it loss confidence in the state agency’s ability to determine what was confidential and not confidential information. It had to hire lawyers to help the state out.

As Monsanto had to make the intervention at their cost, the courts ordered Biowatch to pay Monsanto’s costs.

Monsanto, for all intents and purposes, subsequently may have wanted to use the pursuit of the costs order to prevent Biowatch or scare off any future litigant from going the route of the courts if they thought of taking on Monsanto again. It would have been a form of private sanction via the proxy of the courts. This in itself would be frivolous and an abuse of the judicial system.

Sachs challenged the costs order, stating it was placing the bill at the wrong door.

Sachs argued that the costs order against Biowatch was judged not to have taken into account the constitutional setting of the case. The general rule has been that where a private party wins a case, the State should pay the costs and where the private party loses, the State and private party shares the costs.

In cases where constitutional advancement is at stake, these discretions, especially regarding the role of the Supreme Court of Appeal, need to be made carefully. No discretion should be applied in such a manner that it castes a ‘chilling effect’ on the litigant; depriving the litigant or others the right to pursue future claims that merit constitutional redress because of the fear of the costs order.

Sachs’ ruling also asserts the point of all parties being equal before the eyes of the court. A smaller party fighting in the name of a public cause is not on account of its moral stance automatically more in the right, in the court of law, to a larger party.

In this case, Biowatch, is on the same standing as a big international conglomerate, even though the conglomerate may be pursuing an interest deemed to be by the smaller party against a public interest.

Both have rights and their rights have to be contested. The first has the right to defend a public interest, in this case an environmental right and have the opportunity to argue the merits of their case in a public court. The second also has a right to operate an economic interest freely, which is granted to it by law to undertake having met all the compliance requirements set out within the regulatory and legal environment.  

Sachs contended that the case must not be looked at from the point of view of who the parties are or their characteristics, but rather the nature of the issue and the principles it advances.

He writes: “Equal protection under the law requires that costs awards not be dependent on whether the parties are acting in their own interests or in the public interest. Nor should they be determined by whether the parties are financially well endowed or indigent or, as in the case of many NGOs, reliant on external funding. The primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional judgement.”

The costs orders when applied at the discretion of the courts are usually designed to deter frivolous pursuits in order to protect the State, the courts or others from the abuse of the courts. The litigant’s case must be genuine and a sincere advancement of constitutional justice.

At the same time, justice should not be decided on the basis of the inequality in economic means. This would defeat the purpose of justice. Public interests groups have, in the past, helped advance constitutional justice if one looks at cases brought by civic bodies concerning the rights of refugees, the homeless, the landless and many others. They have made positive contributions to constitutional advancement and South Africa’s democracy.

However, as Sachs noted, a civic organization: “… should be held to the same standards of conducts as any other party, particularly if it has had legal representation. This means it should not be immunised from appropriate sanctions if its conduct has been vexatious, frivolous, professionally unbecoming or in any other similar way abusive of the processes of the Court.”

Judge Sachs ruled in favour of Biowatch and ordered the State to pay Biowatch’s costs, as the reasons for the case in the first place arose out of the refusal of the state officials to pass on relevant information to Biowatch.

It was, after all, the result of the failure of the state to act appropriately that led to the litigation. The case was not a conflict between private parties although a third party, in this case Monsanto, entered the fray to protect confidential information, which it was entitled to do.

Although Monsanto defended the costs order, it was not obliged to have the costs order reversed and imposed upon it due to the failure of the state to do its job. Sachs’ ruling places the costs order at the ‘correct door’. In this case, the State, which was the cause of the litigation in the first place.

Finally, Sachs’ ruling asserts the primacy of constitutional advancement as the basis for judging the merits of a case and the way cost orders should be apportioned.

The character of the parties, rich or poor, or their cause should not inform who should be more favoured. Parties should be treated equally before the courts. Only the merits of their case should separate them.

The ruling also imposes on parties an onerous responsibility to ensure their cases are watertight, genuine and promote constitutional advancement.

Parties must do their homework before they get to the courts. If they are frivolous and abuse the courts, be warned it does not matter who you are, you will suffer the consequences if you lose.

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