Trustees for the time being of The Biowatch Trust v Registrar Genetic Resources and Others (A831/2005) [2007] ZAGPHC 270 (6 November 2007)

/SG

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 06/11/2007

CASE NO: A831/2005

UNREPORTABLE

In the matter between:

THE TRUSTEES FOR THE TIME

BEING OF THE BIOWATCH TRUST APPELLANTS

And

THE REGISTRAR, GENETIC

RESOURCES 1ST RESPONDENT

THE EXECUTIVE COUNCIL FOR

GENETICALLY MODIFIED

ORGANISMS 2ND RESPONDENT

THE MINISTER FOR AGRICULTURE 3RD RESPONDENT

MONSANTO SOUTH AFRICA (PTY) LTD 4TH RESPONDENT

STONEVILLE PEDIGREED SEED

COMPANY 5TH RESPONDENT

D & PLSA SOUTH AFRICA INC 6TH RESPONDENT

THE OPEN DEMOCRACYADVICE

CENTRE AMICUS CURIAE

JUDGMENT

MYNHARDT, J

Introduction

1. This is an appeal against a costs order only. The appellant (“Biowatch”) applied on notice of motion in the court a quo for an order directing the first to third respondents (“the statutory respondents”) to provide it with certain information. The application was opposed by the first to third respondents. The fourth, fifth and sixth respondents were granted leave to intervene as respondents. They also opposed the application. The amicus curiae was also granted leave to take part in the proceedings.

2. The court a quo, per DUNN AJ, ordered the statutory respondents to provide access to the appellant to certain records, registers and documents under their control. The access which was granted to the appellant was, however, not unrestricted. In terms of the court’s order the appellant can not gain access to documents etcetera, or parts thereof, in respect of which access can be refused in terms of Chapter 4 of Part 2 of the Promotion of Access to Information Act, 2000, 2 of 2000 (“PAIA”).

3. In regard to costs the court a quo ordered the appellant to pay the fourth respondent’s (“Monsanto”) costs. No other order as to costs was made.

4. The appellant feels aggrieved about the fact that the court a quo had not granted a costs order in its favour against the statutory respondents and, also, about the fact that it was ordered to pay Monsanto’s costs.

5. The appeal is before this court with the leave of the court a quo.

6. The appeal was opposed by the statutory respondents and by Monsanto. The fifth and sixth respondents in the court a quo and the Amicus Curiae did not take part in the proceedings in this court.

7. The appellant did not file the record of appeal timeously in terms of the rules of court. It applied for condonation thereof. That application was not opposed. An acceptable explanation for the non compliance with the rules of court was furnished. The application will, therefore, be granted. All three parties were agreed that the costs of the application should be costs in the appeal. Such an order will, therefore, be made.

The salient facts

8. Biowatch is a trust which is registered with the Master of the High Court at Cape Town. In terms of clause 5 of the trust deed its primary object is “to engage in and promote nature conservation activities”.

In the founding affidavit Biowatch was described as “a national non governmental organisation (“NGO”) that acts in the public interest”.

It takes a keen interest in what has been described as “the wide spread commercialisation of genetically modified organisms (“GMOs”) in South Africa and the absence of civil society involvement in the determination of policy and law regulating their use, control and release. Biowatch can therefore be seen as a watchdog which keeps an eye on the experimentation with, use, control and release of GMOs to ensure that the rights of the people of South Africa to an environment that is not harmful to their health or well being and to have the environment protected for the benefit of future generations through legislative and other means, is not being infringed.”

Although it was disputed on the papers that Biowatch was acting in the public interest, I am prepared to accept, as did the court a quo, that it acted indeed in the public interest in instituting the proceedings in the court a quo.

9. The statutory respondents are functionaries under the Genetically Modified Organisms Act 1998, 15 of 1998 (“the GMO Act”).

The first respondent administers the GMO Act and may also exercise powers and functions assigned to him by the second respondent.

The second respondent has an advisory function in terms of the GMO Act and advises the first respondent on all aspects relating to GMOs. It is also vested with certain powers and duties under section 18 of the GMO Act relating to the disclosure of information which is not of a confidential nature.

The third respondent is, of course, in control of the Department of Agriculture in whose possession the information relating to GMOs is. In the answering affidavit the point in limine was raised that it was a misjoinder to have joined the third respondent as a respondent. That point was not upheld by the court a quo. It is, therefore, of no relevance in the appeal.

10. The fourth respondent, Monsanto, is described in the papers as “a diversified biotechnology company which is involved, inter alia, in the research, development and sale of genetically modified organisms in South Africa”. It is further stated that “Monsanto is …one of the leading participants in the South African GMO industry”. The extent of Monsanto’s participation in the aforesaid industry is evidenced by the fact that “at least 23 GMO permits have been issued to Monsanto (by the statutory respondents) since January 2000”.

In its papers Monsanto claimed that its confidential information which it has furnished to the first and second respondents, is protected against disclosure to Biowatch in terms of, firstly, section 18 of the GMO Act and, secondly, sections 36, 37 and 43(1) of PAIA and, lastly, section 36 of the Constitution of 1996.

The court a quo found that Monsanto’s confidential information is indeed protected by Chapter 4 of Part 2 of PAIA and that the first and second respondents could withhold information from Biowatch on any of the grounds of refusal of information specified in that chapter.

11. In the light of the fact that the fifth and sixth respondents did not take part in the proceedings in this court, I do not deem it necessary, or relevant, to refer to their role in the proceedings in the court a quo.

12. At the time that Biowatch launched the application on 22 August 2002, PAIA was already promulgated and had become of force and effect. It became of force and effect, generally speaking, on 9 March 2001.

Biowatch had, however, requested the information which it sought from the first and second respondents, during the year 2000 and February 2001. At that stage PAIA was not yet in operation.

The court a quo found that Chapter 4 of Part 2 of PAIA had retrospective effect and that the first and second respondents could rely thereon to refuse to disclose any of Monsanto’s confidential information to Biowatch. That finding of the court a quo must be accepted as correct by this court for purposes hereof as there is no appeal against that finding.

13. In terms of prayer 1 of the notice of motion Biowatch’s request for the information it sought was formulated in a rather unorthodox manner. The information sought was described as that appearing in four letters which were addressed to the statutory respondents and copies of which were annexed to the founding affidavit. It was further stated in the prayer that “insofar as such information has already been provided” in two letters which were addressed to Biowatch by the first respondent, that information need not be furnished. Copies of these two letters were also annexed to the founding affidavit.

At least Monsanto, in its papers, complained about the manner and format of the request for information as described in the notice of motion. Its main complaint was that there was an overlap between the different requests for the information and that Biowatch had not properly defined the information that is sought so that it, Monsanto, was not able to identify precisely what information was sought by Biowatch. In paragraph 35 of Monsanto’s answering affidavit, for instance, it was alleged that “the categories of information listed in that annexure (annexure EPS9, the fourth request) are defined in such broad and vague terms that it is impossible for Monsanto to determine precisely what they are intended to include”. That complaint was repeated in paragraphs 60 and 72 of Monsanto’s answering affidavit.

The court a quo eventually found that it was unnecessary for Biowatch to have included the first, second and third requests in prayer 1 of the notice of motion. In regard to the first request the court found that Biowatch had been furnished with the information sought therein by the time that the application was launched and that reference to that letter “can and should, therefore, be ignored”. The court further found that the first and second respondents had not satisfactorily responded to Biowatch’s request contained in its second letter but that that request for information was repeated in Biowatch’s fourth letter or request. It was therefore also unnecessary to have included the second request in the notice of motion.

In regard to the third request for information DUNN AJ found that there were four deficiencies in the first respondent’s response to it. Despite that the learned acting judge found that it was “also entirely unnecessary for Biowatch to have referred to its third request in the notice of motion since all the information sought by it is adequately catered for in its fourth request”.

In regard to the fourth request, or letter, the court a quo found that Biowatch was entitled to access to the information sought therein except for four items mentioned in the judgment. Biowatch’s access was, as I have already mentioned, restricted because the statutory respondents could refuse access to information on any of the grounds justifying refusal of access to information which are specified in Chapter 4 of Part 2 of PAIA.

The court a quo’s reasons for the costs order that it made

14. In his judgment DUNN AJ dealt very cryptically with the issue of costs. His reasons are to be found in paragraph 68 of his written judgment which reads as follows:

“[68] As far as costs are concerned, the general rule in litigation is that the costs should follow the result. However, although Biowatch has been partially successful in obtaining some of the relief sought, the manner in which some of its requests for information were formulated, as well as the manner in which the relief claimed in the notice of motion was formulated, has convinced me that it should not be granted a costs order in his favour in these circumstances. Furthermore, the approach adopted by it compelled Monsanto, Stoneville and D & PLSA to come to court to protect their interests. The issues were complex and the arguments presented by them were of great assistance. Stoneville and D & PLSA did not seek any costs order against the applicant. On behalf of Monsanto its counsel sought an order for costs against the applicant. In my view the applicant should be ordered to pay Monsanto’s costs. No other order as to costs is warranted in the circumstances of this case.”

15. Later, in his judgment on the application for leave to appeal, the learned acting judge said that Biowatch had achieved substantial success against the statutory respondents. He also stated that he considered Monsanto to have achieved substantial success “because it all along contended that Biowatch did not have open sesame to such information and that its rights of access was subject to the provisions of PAIA and, at the very least, also subject to the limitations contained in the Genetically Modified Organisms Act, 1997 (Act 15 of 1997)”.

The contentions of the parties

16. Biowatch contended on appeal, broadly summarised, that the provisions of section 21A of the Supreme Court Act, 1959, 59 of 1959, do not stand in the way of its appeal and that this court can, and should, determine the issue of costs. It further contended that DUNN AJ had, in any event, misdirected himself in a number of respects and that this court is therefore entitled, and obliged, to determine the issue of costs afresh.

In the event of it succeeding on appeal, Biowatch does not seek a costs order in respect of the appeal. In the event of it being unsuccessful in the appeal, Biowatch has requested this court to make no order as to costs. The basis for this request was that Biowatch has been acting and litigating in the public interest and that the litigation relates to important constitutional issues or principles.

Biowatch submitted that this court should uphold the appeal and that the costs order of the court a quo should be replaced with an order as follows:

“The first and third respondents are ordered to pay the applicant’s costs; save as aforesaid, no other order as to costs is made.”

The effect of such an order would, of course, be that Biowatch is afforded its costs as against the statutory respondents and that Monsanto will have to pay its own costs.

17. The statutory respondents and Monsanto contended, broadly summarised, that the court a quo had committed no misdirections and that no ground exists, therefore, for interfering with the discretion that was exercised by DUNN AJ. The appeal should, therefore, be dismissed pursuant to section 21A of the Supreme Court Act, 1959.

Both the statutory respondents and Monsanto asked for costs to be awarded against Biowatch in the event of the appeal being dismissed.

DiscussionSection 21A of Act 59 of 1959

18. The first issue that needs to be discussed is the applicability or otherwise of section 21A of the Supreme Court Act, 1959 to the present case. The section reads as follows:

“(1) When at the hearing of any civil appeal to the Appellate Division or any Provincial or Local Division of the Supreme Court the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground alone.

(2)

(a) If at any time prior to the hearing of an appeal the Chief Justice or the Judge President, as the case may be, is prima facie of the view that it would be appropriate to dismiss the appeal on the grounds set out in subsection (1), he or she shall call for written representations from the respective parties as to why the appeal should not be so dismissed.

(b) Upon receipt of the written representations or, failing which, at the expiry of the time determined for their lodging, the matter shall be referred by the Chief Justice or by the Judge President, as the case may be, to three judges of the Division concerned for their consideration.

(c) The judges considering the matter may order that the question whether the appeal should be dismissed on the grounds set out in subsection (1) be argued before them at the place and time appointed, and may, whether or not they have so ordered -

(i) order that the appeal be dismissed, with or without an order as to the costs incurred in any of the courts below or in respect of the costs of appeal, including the costs in respect of the preparation and lodging of the written representation; or

(ii) order that the appeal proceed in the ordinary course.

(3) Save under exceptional circumstances, the question whether the judgment or order would have no practical effect or result, is to be determined without reference to consideration of costs.

(4) The provisions of subsections (2) and (3) shall apply with the necessary changes if a petition referred to in section 21(3) is considered.”

The section has an effect even at the stage when a litigant applies for leave to appeal.

In Logistic Technologies (Pty) Ltd v Coetzee and Others 1998 3 SA 1071 (W) (“the Logistic Technologies case”) CLOETE J, as he then was, held at 1075D-F of the report that the section “enables an appeal Court to dismiss an appeal which is directed solely at a costs order, for this reason alone. The appeal Court is not obliged to do so – the word ‘may’ in ss (1) confers a discretion; but the emphasis has changed …”

At 1075G of the report the learned judge said that the present position is that “save in exceptional circumstances, consideration of costs is to be left out of account”.

At 1075I-J of the report the learned judge held that the result of the amendment to the section, which was effected in 1996, was “that unless an applicant for leave to appeal against a costs order only can satisfy the Court a quo that an appeal Court may reasonably find that exceptional circumstances exist, leave to appeal should be refused; and in determining this question, the approach laid down by the Appellate Division in such matters remains relevant in that a failure to exercise a judicial discretion would (at least usually) constitute an exceptional circumstance – but conversely, the mere fact that an appeal Court might, or even probably would, give a different order, would not”.

The purpose of the section is clearly to discourage appeals against costs orders only.

Until now there have been a number of cases where the courts have applied the provisions of the section and where appeals were dismissed because the issues have become moot and the judgment of the court of appeal would have had no practical effect or result. Once such an example is the judgment in Western Cape Education Department and Another v George 1998 3 SA 77 (SCA) where, at 84G of the report, the court also reiterated the warning which was sounded earlier “that practitioners keep the provisions of s21A in mind not only at the stage of an application for leave to appeal but also thereafter”.

In Radio Pretoria v Chairman, Independent Communications Authority of South Africa and Another, 2005 1 SA 47 (SCA) the court also found that the issue between the parties had become moot. There was, therefore, no purpose in persisting in the appeal. There were also no exceptional circumstances which would have justified the court of appeal to hear and determine the appeal. The appeal was accordingly dismissed in terms of section 21A.

In Land en Landbouontwikkelingsbank van Suid Afrika v Conradie 2005 4 SA 506 (SCA) MPATI DP, who delivered the judgment of the court, said at 511C-D of the report, that “the section confers a discretion on this Court … Where, for example, questions of law which are likely to arise frequently are at issue a court of appeal may hear the merits of the appeal and pronounce upon it.” In that matter the interpretation and application of a statute was an issue.

That was a question of law which, in the opinion of the learned Deputy President, was likely to arise frequently. The court therefore exercised its discretion in favour of the appellants and considered the merits of the appeal.

19. In the present case this court is not called upon to consider the merits of the case in order to establish whether the judgment of DUNN AJ is right of wrong. There is no appeal against that part of the judgment. The appeal is directed, as I have indicated, solely against that part of the judgment that deals with costs. The question is, therefore, whether there are exceptional circumstances, or any other reason, why this court should not apply section 21A and dismiss the appeal for that reason alone.

20. Counsel for Biowatch, Mr Moultrie, urged us not to dismiss the appeal pursuant to section 21A but to consider the appeal and to overturn the order of costs that was made by DUNN AJ. Counsel made the following submissions in this regard:

(i) The costs order made by DUNN AJ involves a departure from a well established rule that costs follow the result. Section 21A does not automatically mean that the appeal should be refused on that basis;

(ii) Insofar as section 21A makes an appeal on costs only impossible, or virtually impossible, the section is unconstitutional and in breach of the right of access to the courts in terms of section 34 of the Constitution of the Republic of South Africa, 1996;

(iii) In terms of section 21A (2)(c)(i) the three judges who consider the matter prior to the hearing of the appeal, may dismiss the appeal “with or without an order as to the costs incurred in any of the courts below”;

(iv) The question whether section 21A applies is a different one from the question whether or not a court of appeal can interfere in a costs order made by a lower court;

(v) Biowatch, in any event, contends that there are special circumstances present in the instant matter which would justify this court to interfere with the costs order of DUNN AJ.

I now turn to discuss these submissions.

Ad (i)

Counsel relied on the judgment of SCOTT JA in Naylor and Another v Jansen; Jansen v Naylor and Others 2006 3 SA 546 (SCA) as authority for the proposition.

In that matter the Supreme Court of Appeal reduced the trial court’s award of damages for defamation from R30 000.00 to R15 000.00. The defamation appeal was, save for this aspect, dismissed. The plaintiff, Mr Jansen, had also sought, and obtained, an order for the arrest of the defendant, Mr Naylor, who was a peregrine of this country, prior to the institution of the defamation action. The trial judge ordered Mr Jansen to pay the costs of that application. The plaintiff appealed against that order to the Supreme Court of Appeal. SCOTT JA referred to this appeal as “the costs appeal”.

The defendant’s counsel in the costs appeal argued that the appeal should be dismissed in terms of section 21A of the Supreme Court Act 1959. SCOTT JA did not agree. At 558D-E of the report the learned Judge of Appeal said the following:

“As will appear from what follows, the circumstances in the present case are exceptional, as the order granted by the Court a quo involves not only a departure from a practice that is well established, but also an inroad in what has hitherto to always been regarded as a substantive right enjoyed by an incola.”

Later in his judgment, at 561C-F of the report, the learned Judge of Appeal held that the plaintiff “was entitled as of right to an order for the arrest of Naylor to confirm jurisdiction” and that he had followed a well established practice in seeking the order on an ex parte basis. The trial judge had therefore “misdirected himself in his approach to the question of costs” according to SCOTT JA.

The Naylor case is therefore no authority for the proposition advanced by Biowatch’s counsel. If anything, it is authority for the proposition that a misdirection on the part of the trial judge constitutes “exceptional circumstances” which would justify a court of appeal to consider an appeal against a costs order only.

Ad (ii)

There is, in my view, no merit in this submission. The courts have held, time and time again, that the purpose of the section is to discourage appeals against costs orders only and to alleviate the workload of, especially, the Supreme Court of Appeal. See, eg the Radio Pretoria case at 50A-B, 55H-I and 56G-J.

The purpose of the section is, in my view, a legitimate one and to the extent that it limits the rights of a litigant to have recourse to a higher court it is certainly not unconstitutional.

Ad (iii)

Counsel submitted that section 21A (2)(c)(i) shows that it is possible for a court to consider the costs order of a lower court despite that the fact that the issues between the parties have become moot.

In this regard counsel relied on Oudebaaskraal (Edms) Bpk en Andere v Jansen van Vuuren en Andere 2001 2 SA 806 (SCA) as an example that would support his submission.

In my view it is strictly speaking not necessary for this court to express any view on the meaning of the subsection relied on by counsel. The present case certainly does not fall under the subsection that counsel relied on; it is governed by subsections (1) and (3) of section 21A.

In any event, I should, however, mention that in the Oudebaaskraal matter the Supreme Court of Appeal found, at 812E of the report, that there were exceptional circumstances which justified the court to consider the issue of costs in the context of determining whether or not its judgment would have any practical effect or result if the appeal should succeed.

I cannot, therefore, accept counsel’s submission.

Ad (iv)

In terms of the section a court of appeal will only consider an appeal against a costs order in a case like the present, where the appeal is against a costs order only, if there are exceptional circumstances present. If not, the appeal is doomed to failure. That much, I think, appears from the judgment of SCOTT JA in the Naylor case and the judgment of STREICHER JA in the Oudebaaskraal matter. Once it is found that exceptional circumstances exist, because, for instance, the trial judge had misdirected himself, as was found in Naylor, a court of appeal will be entitled to interfere in the order that was made by a trial court. In that sense then, the question whether exceptional circumstances exist is not different from the question whether or not a court of appeal is entitled to interfere with a costs order.

This approach was also adopted by CLOETE JA in Naylor and Another v Jansen 2007 1 SA 16 (SCA) [“Naylor (2)”].

At 22B-F of the report (paragraph 10 of the judgment) the learned Judge of Appeal said the following in response to an argument that the appeal, against a costs order, should be dismissed because of the provisions of section 21A.

“I had occasion in Logistic Technologies (Pty) Ltd v Coetzee and Others to express the view that a failure to exercise a judicial discretion would (at least, usually) constitute an exceptional circumstance. I still adhere to that view – for, if the position were otherwise, a litigant adversely affected by a costs order would not be able to escape the consequences of even the most egregious misdirection which resulted in the order simply because an appeal would be concerned only with costs; and that, obviously, cannot be the effect of the section.”

Inasmuch as a failure to exercise a judicial discretion, caused, for instance, by a misdirection on the part of the trial judge, would constitute exceptional circumstances in terms of section 21A, and a court of appeal would then be free to interfere with the costs order granted by the trial judge, it is clear that the question under section 21A is no different from the question whether a court of appeal can interfere with a costs order granted by a trial judge.

I shall presently discuss the submissions of counsel for Biowatch about the applicability of the so called traditional test that would justify inference with a costs order that was made by a lower court. It will then become clear, I believe, why counsel argued for a different test to be applied under section 21A.

Ad (v)

The special circumstances that Biowatch relied on are the following:

(a) Misdirections on the part of the court a quo;

(b) The parties have incurred costs and expenses for the purposes of the appeal, and have briefed counsel to argue the appeal;

(c) The Constitutional Court has not yet spoken finally on the question to what extent public interest litigation is, or ought to be, taken into account as a factor;

(d) This court would not be giving a mere advisory opinion if the appeal is heard;

(e) The appeal is before this court with the leave of the court a quo;

In my view it is only circumstance (a) which has the potential of constituting exceptional circumstances. If the court a quo had misdirected itself, then it would not have exercised a judicial discretion. It follows, logically, that in such an event the order of this court, if the appeal is upheld, will have a practical effect or result.

I am not impressed with the other circumstances relied on by counsel. In regard to the costs and expenses that were incurred, the present case, like the Radio Pretoria case, is not comparable to the Oudebaaskraal case.

I shall, in what follows, confine myself to the misdirections, or other grounds relied on, for the contention that the order and reasoning of DUNN AJ is flawed and that this court should correct it.

The “traditional” test for interference with costs orders on appeal

21. Counsel for Biowatch argued that the “traditional” test for interference with costs orders, as has been recently been formulated by the Supreme Court of Appeal per CLOETE JA, in Naylor (2), applies only where a court has followed the ordinary rule that a successful litigant should get his costs. Where, however, a trial judge does not apply the ordinary rule, and deprives the successful party of his/her costs, a court of appeal will ordinarily interfere and apply its own judgment as to whether or not there are any grounds to depart from the general rule. Therefore, submitted counsel, would it be necessary in the present case to enquire which party was successful or substantially successful. That party, submitted counsel, should have been awarded its costs in accordance with the general rule that costs follow the result. On that basis, submitted counsel, should Biowatch have been awarded its costs against the statutory respondents and DUNN AJ erred in making the order that he did make.

Because other considerations also come into play, according to counsel, in regard to the costs order in favour of Monsanto (“the second costs order”), I shall later deal with counsel’s submissions in regard to that order.

Counsel relied on Merber v Merber 1948 1 SA 446 (A) 452/3 as authority for the proposition contended for. In that part of his judgment GREENBERG JA said the following:

“In Fripp v Gibbon and Company (1913 AD 354), Lord DE VILLIERS CJ, said (at p 357):

‘In appeals upon questions of costs two general principles should be observed. The first is that the Court of first instance has a judicial discretion as to costs, and the second is that the successful party should, as a general rule, have his costs. The discretion of such Court, therefore, is not unlimited, and there are numerous cases in which courts of appeal have set aside judgments as to costs where such judgments have contravened the general principle that to the successful party should be awarded his costs.’

In the present case the appellant, in order to succeed, must show that the Court a quo, in awarding the successful party his costs, failed to exercise a judicial discretion. It has repeatedly been said in our courts that an appeal tribunal will not readily interfere with an exercise of discretion by the Court a quo in awarding costs ...

In Ritter v Godfrey (1920, 2 KB 47) the Master of the Rolls said:

‘The discretion must be judicially exercised and therefore there must be some grounds for its exercise, for a discretion exercised on no grounds cannot be judicial. If, however, there be any grounds, the question of whether they are sufficient is entirely for the Judge at the trial and this Court cannot interfere with his discretion.’

I presume that ‘any grounds’ mean any grounds on which a reasonable person could come to the conclusion arrived at. This passage was cited with approval by the House of Lords in Donald Campbell and Co v Pollak (1927, AC 732) by the Lord Chancellor (at pp 809 and 811) and by Lord ATKINSON (at p 814). In Penny v Walker (supra) this Court, in laying down what was meant by a judicial discretion referred to p 60 of the report of Ritter v Godfrey (supra). What ATKIN, LJ there said was:

‘In the case of a wholly successful defendant, in my opinion, the Judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains.’

The learned LORD JUSTICE was dealing with a case where the successful defendant had been deprived of his costs in the Trial Court and not with a case where he had been granted his costs. What I have quoted does not therefore mean that in the instances mentioned, the successful party must necessarily be deprived of his costs but that it is only in these instances, which are commented upon at p 61 of the report, that the court is entitled to deprive him of his costs.

It seems therefore that, when a successful party has been deprived of his costs in the trial court, an appeal court will enquire whether there were any grounds for this departure from the general rule and if there are no such grounds, then ordinarily it will interfere. But when, as in the present case, the general rule has been followed, then the appellant must first show that there were grounds for departing from the rule and, if there are such grounds, that the trial Judge, in refusing to depart from the rule, has either fail to take such grounds into consideration or has acted arbitrarily in not giving effect to them by depriving the successful party of his costs. In either of these events the appeal court would be free to exercise its own discretion. The mere fact that the appeal court would have given more weight to the grounds does not mean that the judge has acted arbitrarily, ie not with a judicial discretion.”

I think that at least three comments should be made about counsel’s argument. The first is that a judge has a wide unfettered discretion to make a costs order after he/she had taken into account all the relevant factors or circumstances in the case. There is no “normal rule” or “general rule”. That was made clear by CLOETE JA in Naylor (2) at 23D-G and at 28D-F. This is a longstanding principle. In Rondalia Assurance Corporation of SA Ltd v Page and Others 1975 1 SA 708 (A) HOLMES JA, at 720C D of the report, formulated this principle as follows:

“A Court making an order as to costs has a discretion, to be exercised judicially on a consideration of all the facts; and in essence it is a matter of fairness to both sides. The power of interference on appeal is therefore limited to cases of vitiation by misdirection or irregularity, or the absence of grounds on which a court, acting reasonably, could have made the order in question; see Blou v Lampert and Chipkin NNO and Others 1973 1 SA 1 (AD) at p 15E-H.”

The second comment is that the power of the court of appeal to interfere with a costs order of a lower court does not depend on the question whether or not the court a quo had followed the “normal rule” to award cost to the successful party. If the successful party had been deprived of his/her costs by the lower court, the principle upon which a court of appeal will approach the matter remains the same. There is no talk, in such a case, of “ordinarily” interfering as opposed to interfering on rather narrow grounds in the case where a successful party has been awarded his/her costs. Counsel’s argument is, therefore, wrong.

In Naylor (2) CLOETE JA explained why a court of appeal will only interfere with a costs order that was made by a lower court, under certain circumstances. The reason is simply, as was explained at 23F-24D of the report, that the lower court exercises a “strong or true” discretion and because of that a court of appeal can only interfere if the court a quo had not exercised its discretion judicially. That that did not happen, said CLOETE JA “can be done by showing that the court of first instance exercised the power conferred on it capriciously or upon a wrong principle, or did not bring its unbiased judgment to bear on the question or did not act for substantial reasons”.

In this context it also has to be borne in mind, as explained by CLOETE JA in Naylor (2) at 28F-G of the report, “that the exercise of a narrow discretion necessarily involves a ‘choice between permissible alternatives’, and, accordingly, ‘different judicial officers, acting reasonably, could legitimately come to different conclusions on identical facts’”.

The third comment to be made is that in Naylor (2) the Supreme Court of Appeal was dealing with a matter where the court a quo had indeed not followed the “normal” or “general” rule and deviated therefrom. Despite that the Supreme Court of Appeal reaffirmed the principle set out above and did not approach the matter on the basis that it would “ordinarily interfere” as counsel for Biowatch would have it. The Merber case is therefore no authority for the proposition contended for by counsel for Biowatch. That is borne out by the fact that GREENBERG JA said that before a court of appeal would interfere with a costs order of a lower court, a court of appeal will enquire whether there were any grounds for the departure from the general rule and, if there are no such grounds, then “ordinarily it will interfere.”

It is therefore not a question of “ordinarily” interfering with the exercise of the trial judge’s discretion. Interference with the exercise of his/her discretion by a trial judge will only occur if there are acceptable reasons or grounds therefor.

22. The reasoning of CLOETE JA in Naylor (2) that a court of appeal will only interfere in certain circumstances with the exercise by a lower court of its “strong or true” discretion, which “is a discretion in the strict or narrow sense” according to the learned judge of appeal at 24B of the report, was affirmed as correct by the Constitutional Court in South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 1 SA 523 (CC) (“the SABC case”). At 540G (paragraph 39) the majority of the learned justices said the following:

“Where the discretion is a discretion in the strict sense, in that the Court had a range of legal choices open to it, an appellate Court will ordinarily interfere with the exercise of that discretion only in narrow circumstances.”

In paragraph (40) of the majority judgment, at 541C of the report, the learned justices said that they are persuaded that the constitutional court should interfere only in narrow circumstances with the exercise by the Supreme Court of Appeal of its discretion in terms of section 173 of the Constitution of 1996 not to permit live coverage by the SABC of the proceedings in the court at the hearing of the appeal. That meant that the power of the Constitutional Court to interfere was circumscribed and that that court could only interfere, as it was put in paragraph (41) of the judgment, at 541H-542A of the report, namely:

“Therefore the question for this Court is not whether we would have permitted radio and television broadcasting of the appeal in the circumstances of this case, but whether the Supreme Court of Appeal did not act judicially in exercising its s 173 discretion, or based the exercise of that discretion on wrong principles of law, or a misdirection on the material facts. As CLOETE J formulated the test more laconically in Bookworks, the question is whether the Court committed some ‘demonstrable blunder’ or reached an ‘unjustifiable conclusion’.” (Footnotes have been omitted.)

23. It follows from all this that unless Biowatch can persuade this court that DUNN AJ had committed some “demonstrable blunder” or reached an “unjustifiable conclusion” this court has, firstly, no power to interfere with the order that the learned acting judge made, and secondly, that no “exceptional circumstances” exist in terms of section 21A (3) of the Supreme Court Act, 1959, and that the appeal will have to be dismissed.

The grounds relied on by Biowatch for interference with the order of the court a quo

24. In regard to the first and second costs orders, ie the fact that Biowatch was not awarded costs against the statutory respondents and that costs were awarded in favour of Monsanto, counsel for Biowatch argued that DUNN AJ had acted capriciously in basing the orders on the manner in which the relief was formulated. In paragraph 13 of this judgment I have already dealt with the unorthodox manner in which Biowatch had applied for the information it sought.

25. In his judgment on costs, mentioned in paragraph 14 above, DUNN AJ criticised Biowatch for having adopted this unorthodox manner in requesting the advice it sought.

In his judgment on the application for leave to appeal the learned acting judge again referred to this aspect. In paragraph 11(c) of his judgment on that application, the learned acting judge dealt with the submissions of Biowatch’s counsel as to why a costs order should have been made in Biowatch’s favour, at least against the statutory respondents. In essence it was argued that Biowatch was the successful party and should have been awarded its costs. DUNN AJ already held in paragraph 7 of that judgment that Biowatch had achieved substantial success against the statutory respondents. The learned acting judge then dealt specifically with the manner in which the relief was framed. In paragraph 12 of his judgment he mentioned “the lackadaisical approach” which Biowatch had adopted and “which showed that it expected the respondents and the court, as it were, to trawl through its various requests for information to find out precisely what information Biowatch wanted and in what form it sought such requests”.

The learned acting judge continued to refer to some of the submissions of counsel at the hearing of the matter. Counsel called the request a “fishing expedition” and submitted that they were “catch all requests” which “were clearly vexatious and oppressive”. There was “certainly substance in these submissions” or labels, said DUNN AJ.

I agree wholeheartedly with the standpoint of DUNN AJ. There is certainly no room, in my view, for the accusation that DUNN AJ had acted capriciously in relying on this ground for depriving Biowatch of its costs against the statutory respondents.

Biowatch’s counsel practically reargued this particular ground on which DUNN AJ relied, before this court. I do not think that it would serve any purpose to traverse the issue again. In my view DUNN AJ in essence disapproved of the manner in which the relief was formulated in the four letters written by Biowatch, and in the notice of motion, which was never amended, and decided to deprive Biowatch of its costs against the statutory respondents as a mark of his disapproval of the conduct of Biowatch. In my view the learned acting judge was entitled to do that and I can find no fault with his decision.

26. In regard to Monsanto the court a quo of course also relied on the manner in which the relief was formulated. In addition to that the court also relied on the fact that Monstanto was compelled to come to court to protect its interests. In his judgment on the application for leave to appeal the learned acting judge further said, as I have mentioned in paragraph 15 hereof, that Monsanto had achieved substantial success in obtaining an order that its confidential information be protected.

It was argued on behalf of Biowatch before this court that DUNN AJ had erred in this respect and that he ought to have found that Biowatch was the successful party. Monsanto was not even substantially successful submitted counsel.

In regard to both the grounds mentioned by DUNN AJ counsel for Biowatch submitted that he had misdirected himself.

As far as the issue of confidentiality of some of Monsanto’s information that was supplied by it to the statutory respondents are concerned, counsel for Biowatch argued that Monsanto had not even achieved substantial success. Counsel’s argument can be summarised as follows: Biowatch sought information from the statutory respondents, the only limitation to what it was entitled to was to be found in the provisions of section 36 of the Constitution of 1996 read with section 18 of the GMO Act; at an early stage of the proceedings Biowatch conceded that some measure of protection should be afforded to Monsanto and that attitude of Biowatch is also evidenced in the draft orders that were handed to the court a quo.

In regard to the fact that Monsanto was compelled to come to court to protect its interests counsel for Biowatch submitted that DUNN AJ had also misdirected himself in making that finding. Monsanto could have taken a different approach, submitted counsel. It could, for instance have co operated with Biowatch to refine the information sought by Biowatch and it could have relied on the statutory respondents to protect its interest.

27. It is clear from the papers that a fundamental dispute existed between Biowatch and Monsanto about the applicability of PAIA to the information sought by Biowatch. Monsanto was of the view that PAIA applied and that Biowatch should be non suited because it had not complied with that Act. Biowatch, on the other hand, was of the view that PAIA is irrelevant. In the end the court a quo found that Monsanto was entitled to the protection afforded by Chapter 4 of Part 2 of PAIA.

In paragraphs 63, 64, 65, 66 and 67 of its answering affidavit Monsanto specifically invoked the provisions of section 18 of the GMO Act and of Chapter 4 of Part 2 of PAIA and of section 36 of the Constitution in its quest to protect its confidential information.

In its replying affidavit Biowatch disputed Monsanto’s allegations that it had furnished confidential, or commercially sensitive, information to any of the statutory respondents. Biowatch also disputed that Monsanto was entitled to rely on the statutory provisions mentioned by Monsanto in its affidavit.

I am not persuaded by the argument advanced by counsel for Biowatch that DUNN AJ was wrong in finding that Monsanto was substantially successful in obtaining an order protecting its confidential information. In my view Monsanto’s counsel’s argument that “Monsanto had won hands down” is correct as far as the issue relating to confidential information and its protection is concerned.

Biowatch is not assisted in any way by its reliance on the concession relied on by counsel and the draft orders that were handed to the court a quo during the course of the proceedings. DUNN AJ said that those orders did not reflect what was agreed upon between the parties. In any event, Biowatch never abandoned any of the relief that it sought in the notice of motion, which was never amended. The draft orders were merely proposals that were made to the court a quo and cannot be invoked by Biowatch to show that the court a quo was wrong in finding that Monsanto was substantially successful.

28. I also agree with the court a quo that Monsanto was compelled to come to court in order to protect its interest. I do not, therefore, agree with Biowatch’s counsel’s submission that DUNN AJ had misdirected himself in this respect and that Monsanto should have been ordered to pay its own costs.

Counsel submitted, broadly summarised, that Monsanto did not engage any of the other parties and indicated to them which documents it regarded as being confidential and which documents Biowatch could have access to; that there was no duty on Biowatch to have approached Monsanto in advance in order to ascertain whether it was amenable to the order that Biowatch sought; that Monsanto could have relied on the statutory respondents who would have done their best to protect Monsanto’s interest.

There is, in my view, no merit in any of these submissions. Biowatch did not join Monsanto as a party to the litigation. In paragraphs 14 and 15 of their answering affidavit the statutory respondents raised the point in limine that the order sought by Biowatch will affect the interests of, inter alia, Monsanto, an institution of which Biowatch was aware and which was known to it. This issue of non joinder was eventually never decided upon because Monsanto joined the proceedings of its own accord. I think that the point of non joinder was well taken. Monsanto clearly had an interest in the matter and Biowatch should have joined it initially. If regard is had to the opposing views held by Biowatch and Monsanto about the confidentiality of Monsanto’s information, I do not think that it could reasonably have been expected of Monsanto at any stage of the proceedings to have engaged either the statutory respondents or Biowatch to assist any of them in identifying the information it claimed to be confidential. Monsanto was entitled, in my view, to expect Biowatch to show that it was entitled to the information that it sought. Counsel’s submission, in my view, puts the cart before the horse; it claims not to have been under any obligation to approach Monsanto and yet it expects Monsanto to have assisted it to identify confidential information. It was Biowatch who instituted the proceedings and it was obliged, in my view, to persuade the court that it was entitled to the relief that it sought despite the objections raised by, in particular, Monsanto.

The argument that Monsanto could, and should have relied on the statutory respondents to protect its confidential information is equally without merit.

It is true, as was submitted by counsel, that the statutory respondents were obliged to protect the confidentiality of Monsanto’s information which was furnished to them by Monsanto. It does not, however, follow from that that Monsanto can be expected to rely exclusively on the statutory respondents to protect its confidential information. In my view Monsanto, because of its interest in its confidential information, eg its trade secrets, had the right to join in the litigation in order to put its views before the court. It would have been grossly unreasonable to expect Monsanto to rely exclusively on the statutory respondents.

In any event, it is not clear to me on the papers as they stand, how it would have been possible for the statutory respondents to adequately identify precisely what information of Monsanto can be classified as confidential so that the court could determine the issue. The statutory respondents would have had to obtain the necessary assistance from Monsanto. That reinforces the view that Monsanto was entitled to take part in the litigation.

Public interest litigation

29. Biowatch approached the court a quo on the basis that it was entitled to the information sought by virtue of the provisions of section 32 of the Constitution of 1996 and section 31 of the National Environmental Management Act, 1998, 107 of 1998 (“NEMA”).

The reason why reliance was placed on section 32 of the Constitution was that PAIA was not yet of any force or effect at the time when the request for the information was made. Section 32 of the Constitution provides that everyone has the right of access to any information held by the state and any information that is held by another person and that it is required for the exercise or protection of any rights.

Section 31 of NEMA, insofar as it is relevant to the present matter, reads as follows:

“(1) Access to information held by the State is governed by the statute contemplated under section 32(2) of the Constitution: Provided that pending the promulgation of such statute, the following provisions shall apply:

(a) every person is entitled to have access to information held by the State and organs of state which relates to the implementation of this Act and any other law affecting the environment, and to the state of the environment and actual and future threats to the environment, including any emissions to water, air or soil and the production, handling, transportation, treatment, storage and disposal of hazardous waste and substances;

(b) …

(c) a request for information contemplated in paragraph (a) can be refused only;

(i) if the request is manifestly unreasonable or formulated in too general a manner;

(ii) …

(iii) for the reasonable protection of commercially confidential information;

(iv) …

(v) for the reasonable protection of personal privacy.”

The court a quo rightly held that section 31(1) of NEMA ceased to apply, in its own terms, the moment that PAIA was promulgated. It was also of the opinion that “The attempt by Biowatch to rely on section 31 of NEMA in the present application was in any event misplaced”

Accepting, however, for present purposes, that Biowatch was entitled to rely on the section, I think that Monsanto’s counsel’s submission that Biowatch’s request for information could have been refused on the mere basis that it was “manifestly unreasonable or formulated in too general a manner” as provided in subparagraph (c)(i) of subsection (1), is correct. In this regard it is relevant to bear in mind that the court a quo had found that there was merit in the submission that the manner in which the request was formulated was vexatious.

30. Counsel for Biowatch contended that there is a definite trend in the judgments delivered by the Constitutional Court and the other courts of this country, not to make costs orders in matters in which a party seeks to establish an important constitutional principle or in matters where the protection of the environment is relevant. Counsel submitted further that the court a quo failed to have regard to this trend and in so doing misdirected itself because it failed to take relevant considerations into account. Had it not misdirected itself, submitted counsel, it would not have ordered Biowatch to pay Monsanto’s costs; it would have made no order as to costs.

31. In support of his argument counsel also relied on section 32(2) of NEMA which reads as follows:

“(2) A court may decide not to award costs against a person who, or group of persons which, fails to secure the relief sought in respect of any breach or threatened breach of any provision of this Act, including a principle contained in Chapter 1, or of any provision of a specific environmental management Act, or of any other statutory provision concerned with the protection of the environment or the use of natural resources, if the court is of the opinion that the person or group of persons acted reasonably out of a concern for the public interest or in the interest of protecting the environment and had made due efforts to use other means reasonably available for obtaining the relief sought.”

Counsel for Monsanto pointed out, rightly in my view, that Biowatch had certainly not made “due efforts to use other means reasonably available for obtaining the relief sought”. Biowatch could, for instance, have made use of the internal appeal procedure provided for in section 19 of the GMO Act but it did not. On that basis alone, submitted counsel, could the court a quo have ordered Biowatch to pay Monsanto’s costs. That would have been a justifiable ground not to exercise its discretion under section 32(2) of NEMA in Biowatch’s favour. I agree with that submission.

32. For Biowatch to succeed on the main ground on which it relies for persuading this court that the court a quo had misdirected itself and that the second costs order should be set aside, Biowatch will have to show that the court a quo had committed a “demonstrable blunder” or that it had reached an “unjustifiable conclusion” to use the terminology of the majority judgment in the SABC case.

33. It can be accepted as correct that the Constitutional Court tends not to make costs orders in matters that come before it. The reason for this appears from paragraph 36 of the judgment of MOHAMED DP in Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of certain provisions of the Gauteng School Education Bill of 1995, 1996 3 SA 165 (CC) 182F-183C. The learned Deputy President furnished the following reason:

“A litigant seeking to test the constitutionality of a statute usually seeks to ventilate an important issue of constitutional principle.

Such persons should not be discouraged from doing so by the risk of having to pay the costs of their adversaries, if the Court takes a view which is different from the view taken by the petitioner. This, of course, does not mean that such litigants can be completely protected from that risk. The Court, in its discretion, might direct that they pay the costs of their adversaries if, for example, the grounds of attack on the impugned statute are frivolous or vexatious or they have acted from improper motives or there are other circumstances which make it in the interest of justice to direct that such costs should be paid by the losing party.”

The cautious approach of the Constitutional Court is, however, merely a trend and not a rule. That was made clear by ACKERMANN J in Motsepe v Commissioner for Inland Revenue [1997] ZACC 3; 1997 2 SA 898 (CC) 911E-G (par 30) where the learned justice said the following:

“[30] Mrs Motsepe did not seek an order for costs. The Commissioner, however, requested the Court to grant an order for costs, including the costs attendant upon the employment of three counsel, in the event of the referral being rejected or the sections in question not being held to be unconstitutional. In my view, one should be cautious in awarding costs against litigants who seek to enforce their constitutional right against the State, particularly where the constitutionality of the statutory provision is attacked, lest such orders have an unduly inhibiting or ‘chilling’ effect on other potential litigants in this category. This cautious approach cannot, however, be allowed to develop into an inflexible rule so that litigants are induced into believing that they are free to challenge the constitutionality of statutory provisions in this Court, no matter how spurious the grounds for doing so may be or how remote the possibility that this Court will grant them access. This can neither be in the interests of the administration of justice nor fair to those who are forced to oppose such attacks.”

In Sanderson v Attorney General, Eastern Cape 1998 2 SA 38 (CC) the appellant applied to the High Court for a stay of the prosecution because of the unreasonable delay in finalising the proceedings. The High Court dismissed the application with costs. An appeal to the constitutional court against the dismissal of the application was unsuccessful. The constitutional court also set aside the High Court’s order as to costs. The reason for that was that the litigation was “not a suit between private individuals” but that it related directly to criminal proceedings where costs orders are not competent. KRIEGLER J, who delivered the judgment of the court, was also of the view, at 61A B of the report, that the appellant’s complaint “was a genuine complaint on a point of substance and should therefore not have been visited with the sanction of a costs order”.

Counsel for Biowatch relied heavily on this decision and contended that it provides proof of the basic principle that a court should ordinarily not make a costs order against the losing party who seeks to enforce or establish an important constitutional point or principle.

I think that counsel read more into the decision than is justified. What was of decisive importance in that matter was that the litigation related directly to criminal proceedings which the State initiates. The case is therefore not direct authority for the proposition contended for by Biowatch’s counsel. What is more, as counsel for Monsanto rightly submitted, is that section 21A of the Supreme Court Act 1959 does not bind the Constitutional Court because the Constitutional Court does not hear appeals on costs orders. On this basis too, Sanderson is no authority for the proposition contended for.

In the SABC case the Constitutional Court ordered the losing party, the SABC, to pay the costs of the respondents, except “the NDPP who litigates on behalf of the public” in the constitutional court itself. It also left the costs order that was made against the SABC in the Supreme Court of Appeal, undisturbed. This case shows, indisputably, that the making of a costs order against a losing party still remains a matter of discretion, even in the Constitutional Court, despite the fact that an important constitutional principle is involved.

34. Counsel for Biowatch contended that the High Courts follow the same trend as the Constitutional Court in matters in which aspects of public interest is involved. I accept that as correct. See Institute for Democracy in South Africa and Others v African National Congress and Others 2005 5 SA 39 (C) 61D 62B (pars 60-62); Nzimande v Nzimande and Another 2005 1 SA 83 (W) 107C-F.

35. Counsel for Biowatch also contended that section 32(2) of NEMA applies to the present case. Counsel is wrong. In this regard I refer to what the court a quo had held about the applicability of section 31 of NEMA, to which I referred in paragraph 29 hereinbefore, and to what I had said about section 32(2) of NEMA in paragraph 31 hereof.

Accepting, however, for argument’s sake, that Biowatch could have relied on section 32(2) of NEMA, it is clear that our courts have held time and again that a court retains its discretion in regard to the making of costs orders in cases where a litigant litigates with a view to protect the environment.

In Silvermine Valley Coalition v Sybrand van der Spuy Boerderye and Others 2002 1 SA 478 (C) 491H-I DAVIS J said the following about the effect of section 32(2) of NEMA:

“This section confers a discretion on the Court with regard to costs. Even without this section, costs would be in the Court’s discretion but the judicial exercise of the Court’s ordinary discretion of costs is now made subject to certain further guiding principles contained in the legislation. Section 32(2) frees the Court from the fetter of ordinary principles on the basis of compliance with certain conditions.”

At 493C-E of the report the learned judge commented on the facts and circumstances that led to the litigation and motivated his conclusion that the applicant, who lost, should not be ordered to pay costs, as follows:

“The manner in which this case has come before this Court is unfortunate. Had fourth respondent performed its environmental stewardship, it would not have been necessary for an NGO to have so acted. Unfortunately the manner in which this dispute has been placed before this Court leaves it with no other alternative than to rule on the basis of the relief sought. However, that does not mean that the Court should not exercise its discretion insofar as costs are concerned. In further support of this particular conclusion it seems to me 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.

For this reason it would be an improper employment of the discretion of this Court in terms of s 32(2) of NEMA to award costs in favour of first respondent insofar as the application is concerned.”

In that matter it was also found by the learned judge, at 492J-493A of the report, that the applicant was “justified in taking the view that fourth respondent had not enforced the environmental laws as it was so mandated”. The applicant had therefore acted in the public interest and “after a failure on the part of the authorities to protect the precious environment within the Cape Peninsula”. (At 493B of the report.)

There were, therefore, weighty considerations in that case which counted in favour of the applicant and which militated against a costs order in favour of the respondents although the applicant had lost the case.

If, however, there are circumstances present in a case which would justify an adverse costs order against an unsuccessful litigant in this type of litigation, a court is fully entitled, in the exercise of its discretion, and despite the provisions of section 32(2) of NEMA, to make a costs order against an unsuccessful applicant. An example of such a case is Wildlife and Environmental Society of South Africa v MEC for Economic Affairs, Environment and Tourism, Eastern Cape, and Others 2005 6 SA 123 (ECD) (“the WESSA case”).

The applicant in that matter launched an application to review the second respondent’s decision to grant to the third respondent permission to construct an incinerator. The applicant’s fears about the levels of the toxic chemicals that would be present in the waste to be incinerated were later abated. Eventually the applicant withdrew the application. The court had to decide the question of costs.

The court found that the applicant had ignored the alarm bells that lined the road to litigation and that the applicant’s conduct in launching the application was, objectively viewed, not reasonable. The fact that the applicant had acted out of the best of motives and out of a very real concern for the environment and in the public interest, did not outweigh the fact that the application was unnecessary.

In the course of his judgment in the case PICKERING J referred to a large number of cases, including some of those that I have referred to, which dealt with the question of costs in public interest litigation. At 144A-B the learned judge expressed his conclusion and motivation for making a costs order against the applicant, as follows:

“I am acutely aware of the above-named authorities as to the chilling effect of adverse costs orders in matters of this nature as well as of the pertinent remarks of DAVIS J in the Silvermine case (supra). In my view, however, it would neither be fair nor in the interests of justice for first and second respondents to be deprived of the costs incurred by them in opposing an application which was doomed to failure from its inception.”

36. The question that has to be answered in the present case still remains. Did DUNN AJ commit a demonstrable blunder in ordering the applicant to pay Monsanto’s costs?

On behalf of Biowatch it was contended, as I have already mentioned, that Biowatch was substantially successful and not Monsanto. I have already dealt with that argument. There is no merit in the argument.

In regard to the manner in which the relief was formulated and the court a quo’s disapproval thereof, I also deem it unnecessary to add anything to what I have already said about this.

In regard to the argument that DUNN AJ paid no, or insufficient, attention to the “principle” or “rule” or trend that costs are not normally awarded against an applicant who litigates in the public interest and with a view to protect the environment, I have already pointed out that there is no such “rule” and that it remains a matter for the exercise of the court’s discretion.

In the present case it is clear that DUNN AJ was fully aware of the “rule” or “principle” or trend. In paragraph 15 of his judgment on the application for leave to appeal he mentioned that he was acquainted with the case law that Biowatch’s counsel had referred to because he himself was involved as counsel in Democratic Alliance and Another v Masondo NO and Another [2002] ZACC 28; 2003 2 SA 413 (CC). In that case, incidentally, the constitutional court dismissed the appeal and ordered each party to pay its own costs in that court because “The issues at stake are important matters of public interest affecting local government structures throughout the Republic”. The adverse costs order against the appellants in the High Court, where they also lost, was, however, left undisturbed by the Constitutional Court.

It was further argued that DUNN AJ had indicated to counsel during the course of argument of the application for leave to appeal that he had treated the applicant as an ordinary litigant and that that shows that he had failed to take into account that the litigation was so called public interest litigation.

This argument must be seen in the proper context of what occurred during the argument stage of the application for leave to appeal. Towards the end of his argument counsel for Biowatch referred to an affidavit that was filed by Biowatch after DUNN AJ had handed down his judgment. This affidavit dealt with the consequences of the costs order, according to counsel. Counsel submitted that DUNN AJ should admit the affidavit because it deals wit the effect of the costs order on Biowatch. One of the misdirections relied on by counsel for Biowatch in respect of the costs order in Monsanto’s favour was “the chilling effect that the order would have …”.

Counsel for the statutory respondents objected to the affidavit being put before the court a quo. The following discussion then took place between DUNN AJ and counsel for the statutory respondents:

“COURT: Can’t one, Mr Rip, infer from the fact that this is an NGO that needs funding from outsiders, is that not, can’t I take account of that in any event?

MR RIP: Your Lordship probably could have taken that into account in any event that, that it is a body that deals with public funds or ... (intervene)

COURT: But that is something that I did not take into account? I must say, you know, at face value I treated the applicant as a normal litigant. Is that wrong or should I have considered that this is an NGO and that it has to have, you know, search for funding … (intervene)

MR RIP: Well, M’Lord, it was never raised on the papers, so your Lordship must exercise your judicial discretion on the facts before your Lordship. The fact that they are acting in the public interest was known and it was stated on the papers and your Lordship was aware of that and said so, in your judgment when you set out the history of the matter and the position of Biowatch, who they are and what they are attempting to achieve. So, your Lordship was aware of what Biowatch was and what Biowatch was trying to achieve and the purpose of a sort of watchdog tag that they gave themselves and the position that they had assumed, …”

Counsel for Monsanto aligned himself with the argument of counsel for the statutory respondents that Biowatch can not be heard to say at that late stage of the proceedings that it never contemplated being deprived of costs and being faced with an adverse costs order. Counsel then made further submissions about, what he called, “the poverty defence” that was now being put before the court.

In his reply counsel for Biowatch once again made submissions to the court a quo about, what he called, “the poverty debate” in respect of which the supplementary affidavit of Biowatch was put before the court a quo.

In the event the court a quo did not rule on the admissibility or otherwise of the affidavit. In his judgment on the application for leave to appeal DUNN AJ also did not deal with this particular aspect.

Accepting in Biowatch’s favour that this court can, and should, deal with the matter, I do not think that the impecuniosity of Biowatch, if that is a fact, provides a ground or reason for holding that DUNN AJ had misdirected himself. To the extent that a costs order against a NGO might have “a chilling effect” that is something that is common knowledge. In the WESSA case PICKERING J also referred to that particular aspect.

The remark of the court a quo that Biowatch was treated as a normal litigant should, therefore, be seen in the context of “the poverty debate” and the fact that Biowatch’s impecuniosity was not taken into account in its favour certainly does not mean that Biowatch has succeeded in showing that the court a quo had committed a demonstrable blunder.

During the course of the argument of counsel for the statutory respondents DUNN AJ also posed the question whether he had not treated the fact that Biowatch was forced to come to court by the statutory respondents to protect its constitutional rights, “too lightly”. He also posed the question whether he was “not wrong in not awarding them costs against the state?”.

These questions relate to the correctness or otherwise of the first costs order. They do not relate to the second costs order. It cannot therefore be argued by Biowatch that those questions show that the court a quo had committed a demonstrable blunder in making a costs order in favour of Monsanto. This is further underscored by the fact that Biowatch’s counsel conceded during his argument in the application for leave to appeal, that Monsato was, at least in respect of one argument that it raised in its endeavours to protect its interests, successful because the court had upheld that argument. Counsel then went on to submit that Monsanto was unsuccessful in several other respects.

By making that concession counsel in effect conceded that there were grounds upon which a reasonable court could have made the costs order which the court a quo did make. That being so, there is all the more reason not to interfere with the exercise by the court a quo of its discretion.

Conclusion

37. In my view Biowatch has not succeeded in showing that the court a quo had not exercised its discretion judicially in making the two costs orders. It follows, therefore, that the appeal falls to be dismissed.

Costs of appeal

38. Counsel for both the statutory respondents and Monsanto asked for costs orders against Biowatch in the event of the appeal being dismissed.

In my view there is no reason why this court should not accede to those requests.

Order

The following order is made:

1. The application for condonation of the late filing of the record of appeal, is granted;

2. The appeal is dismissed;

3. The appellant is ordered to pay the costs of the first, second, third and fourth respondents which costs will include the costs of the application for condonation of the late filing by the appellant of the record of appeal.

S J MYNHARDT

JUDGE OF THE HIGH COURT

I agree

J N M POSWA

L M MOLOPA

A831/2005

Heard on: 23 April 2007

For the Appellants: Adv R J A Moultrie

Instructed by: Legal Resources Centre, Pretoria

For the First, second and

third Respondents: AdvT W G Bester

Instructed by: The State Attorney, Pretoria

For the Fourth Respondent: Adv F Snyckers

Instructed by: Messrs Bowman Gilfillan, Johannesburg

Date of Judgment: 06 November 2007