Biowatch director, Leslie Liddell points to omissions in the views expressed by advocate Donrich Jordaan on the recent High Court rulings on a dispute over access to information about GMOs.
With growing disbelief, we read the article by advocate Donrich Jordaan (“The Biowatch legal battle and the media”, Farmer’s Weekly 1 February 2008). Jordaan is a director of Sylvean Biotech, a company established to pursue business opportunities in modern biotechnology. Thus, his perspective on a case that concerns the public’s right of access to information about is perhaps unsurprising. Jordaan’s article is a thinly veiled attack on the integrity of Biowatch and borders on defamation at several points.
The Biowatch Trust was established to advance conservation and environmental protection. Its objectives include: protecting South African biodiversity; safeguarding the integrity of seed stock developed by generations of farmers; and advancing the rights of farmers to choose non-GM and organic farming – in response to consumer concerns.
Inaccurate assessment of the case
In the Pretoria High Court, Biowatch sought access to 11 different categories of information about the regulation of GMOs. For example, Biowatch requested copies of risk assessments submitted by applicants for permits to distribute Roundup Ready wheat for commercial growing. The purpose was to establish whether the risks and environmental impacts associated with these GMOs had been properly assessed.
We dispute Jordaan’s statement that “most of Biowatch’s requests were denied”.
In fact, the court granted access to seven out of the 11 categories of information sought. In addition, Biowatch was granted partial access to an eighth category, namely full details (excluding exact coordinates) of the areas for field trials and commercial release of GMOs. Without such information being made public, organic and non-GM farmers are exposed to environmental effects such as cross-pollination, without their knowledge. information also allows to monitor the effects of growing GMOs in particular areas.
The only limitation on access arose where information was protected by the Promotion of Access to Information Act. Jordaan makes much of this. However, Biowatch was never interested in protected information. In its court papers, Biowatch indicated a willingness to negotiate on the exclusion of confidential information from the records that it sought. A successful negotiation took place with Pannar (Pty) Ltd, a seed company that voluntarily agreed to make documents available (with confidential information omitted) and was consequently excluded from the ambit of the court order. The judgment was undoubtedly a victory for Biowatch.
The nature of information
The records, held by the Department of Agriculture, provide insight into the regulation of GMOs in South Africa. The court criticised the department for taking a passive role regarding Biowatch’s requests for information, which were made over an eight-month period and culminated in the court application due to the lack of adequate response. The court also recognised that Biowatch was acting in the public interest and for the protection of the environment. None of the respondents successfully disputed argument that potential dangers exist in GMO experimentation, as the technology is unpredictable and poses public health and environmental risks.
Biowatch also defeated preliminary arguments raised in opposition to its application. For example, several respondents argued that Biowatch should not have approached the court without first exhausting internal appeal procedures. The court disagreed and found that “had no alternative remedy to enforce its rights”. This fact shows up the obvious untruth in Jordaan’s statement that the court found Biowatch could have followed internal appeal procedures.
In light of the above, Jordaan’s description of the case as vexatious and irresponsible is untrue. It’s irresponsible and defamatory to describe a case as vexatious when: a court clearly accepts the constitutional right relied upon; finds that the litigant had no option but to approach the court for relief; and awards the majority of the relief sought. Jordaan’s view is not supported by the judgment described above and was certainly not the finding of the court.
The costs order
It’s correct that Biowatch appealed against the costs order given in favour of Monsanto. Biowatch also appealed against the failure to grant a costs order in its favour against the department, since the court found Biowatch had no option but to approach the court, in the face of the department’s passive approach to repeated requests for information. As noted by the court in the application for leave to appeal, Biowatch was substantially successful.
Certainly, it’s hard to regard an order granting access to seven out of 11 categories of information as anything other than a victory. The judgment of the original case and the appeal are on public record. To read the case go to www.biowatch.org.za and look under documents.
