Biowatch Trust v Registrar Genetic Resources

The Constitutional Court established a special costs rule for constitutional litigation in South Africa. The Court held that unsuccessful parties who raise constitutional matters in the public interest should ordinarily not be ordered to pay the state's costs, to avoid deterring public interest litigation and ensure meaningful access to justice.

Biowatch Trust sought access to information regarding genetically modified organisms under the Promotion of Access to Information Act. After litigation through multiple court levels, Biowatch ultimately lost on the merits but was ordered to pay the state's costs. The question arose whether this costs order was appropriate in constitutional litigation brought in the public interest.

Whether an unsuccessful litigant in constitutional matters brought in the public interest should be ordered to pay the state's costs.

The Constitutional Court held that in constitutional litigation, the general rule should be that an unsuccessful litigant acting in the public interest ought not to be ordered to pay the costs of the state. This rule promotes access to justice and prevents the chilling effect that adverse costs orders would have on constitutional litigation.

In constitutional matters raised in the public interest, the usual costs-follow-the-result rule does not apply; unsuccessful parties should ordinarily not pay the state's costs to ensure access to courts and prevent deterring meritorious constitutional challenges.

The Court reasoned that constitutional litigation serves the public interest by developing jurisprudence and holding government accountable. Requiring unsuccessful litigants to pay state costs would deter individuals and organizations from bringing legitimate constitutional challenges due to financial risk. The Constitution's emphasis on access to justice and the rule of law requires a costs regime that facilitates rather than inhibits constitutional litigation.

The Court noted that this costs rule applies specifically to constitutional litigation in the public interest and does not necessarily extend to all public interest litigation or private disputes with constitutional elements.

This is the leading case on costs in South African constitutional litigation. It fundamentally altered costs practice by establishing that public interest constitutional litigants will not face financial ruin for unsuccessful but meritorious claims, thereby enabling broader access to constitutional justice and facilitating the development of constitutional jurisprudence.

Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC) [2009] ZACC 14