Johannesburg — A NONGOVERNMENTAL organisation that won a court battle but was ordered to pay legal costs will now approach the Constitutional Court to argue why it should not pay the legal costs.

The matter started in 2003 when Biowatch Trust applied to the Pretoria High Court for an order that the agriculture minister and the registrar for genetic resources provide information that would shed light on the basis for decisions about permitting genetically modified crops in SA.

Monsanto SA, a producer of genetically modified food, joined the court proceedings to oppose the application by Biowatch. The case was heard in 2004.

In February 2005, acting Judge Eric Dunn ruled that, although the general rule was that the costs should follow the result, he felt that the manner in which some of the trust's requests for information were formulated had convinced him that it should not be granted a costs order in its favour.

The full bench of the Pretoria High Court heard an appeal by Biowatch against the costs order in April last year when the organisation argued that awarding of a costs order against nongovernmental organisations could have a deterrent effect on future public- interest litigation.

In November last year, Judge Fanie Mynhardt dismissed Biowatch's appeal. However, Judge Justice Poswa, in his judgment in May this year, dissented with the judgment of Mynhardt and stated he would have ordered the department and Monsanto to pay all Biowatch's legal costs .

The Supreme Court of Appeal dismissed Biowatch's application for leave to appeal against the high court order with costs in September. The Constitutional Court will hear the case in February.

In its written submissions to the Constitutional Court, Biowatch contended that Dunn failed to properly exercise his discretion in relation to the costs orders because Biowatch was in fact substantially successful against the department and the registrar.

Biowatch said even if it was found that Biowatch was not successful against Monsanto, Dunn failed to give due weight to the fact that Biowatch was litigating in the public interest in support of the rights of access to information and to a clean environment.

"The costs orders threaten the core principle of access to justice, the right of access to court contained in section 34 of the constitution.

"They should have been overturned by the full bench on appeal," counsel for Biowatch Gilbert Marcus SC said in his written submissions.

Biowatch said the full bench was divided, and two judgments were delivered.

"It is submitted that this indicates that the issue is one of some controversy in the courts and, further, that the current matter presents an appropriate case for this court to provide guidance in relation to the correct approach to costs in public interest litigation, taking into account the values of SA's constitutional order."

Frank Snyckers, for Monsanto, argued in his written submissions that it was one thing to ask whether litigants like Biowatch should be discouraged by orders "chilling" their resolve to bring constitutional challenges in the public interest.

"It is quite another to ask whether they should be encouraged to bring successive appeals against costs awards made against them on the basis that the court disapproved of their conduct."

Snyckers said the law discouraged appeals against costs only.