InAfrican Centre for Biodiversity NPC v Minister of Agriculture, Forestry and Fisheries and Others, the Supreme Court of Appeal (“the SCA”) set aside an issued permit to conduct activities in respect of genetically modified organisms (“GMOs”) and remitted the decision to approve the GMO back for reconsideration.

Statutory framework

The GMO Act 15 of 1997 (“the Act”) alongside the accompanying Regulations requires permits to be issued for the release of GMOs. The Executive Council for GMOs (“Executive Council”) in consultation with the Advisory Committee for GMOs (“Advisory Committee”) determines if the permit should be granted. The process is a science-based investigation into whether there are any risks posed by the release of a GMO into the environment and whether the risks can be effectively managed.

An application for a permit:

• Must be advertised;
• Must include a scientifically based risk assessment in respect of the potential adverse effects of the GMO on the environment, human and animal health; and
• Requires an assessment in terms of the National Environmental Management Act 107 of 1998 (“NEMA”), if called for by the Executive Council, or if there is reason to believe that the release of the GMO would pose a threat to an indigenous species or the environment.

History

Monsanto South Africa (Pty) Ltd (“Monsanto”) applied to the Executive Council for a permit to release a GMO. The application included an assessment of the risks relating to human and animal health, toxicology, allergenicity and nutrition. Monsanto published the application in the Rapport, Business Day and Beeld newspapers. Interested parties were invited to comment and/or object, none did.

The Executive Council consulted with the Advisory Committee and granted the permit. The African Centre for Biodiversity NPC (“ABC”) appealed the decision of the Executive Council’s approval of the GMO to the Appeal Board. The appeal was dismissed. ABC then applied to the Pretoria High Court to have the decision reviewed and set aside. The High Court dismissed the appeal but granted leave to appeal to the SCA.

Experts provided several fundamental concerns. ABC’s ground of appeal rested on the fact that the respective Council, Committee, and the Appeal Board failed to apply the precautionary principle in light of the expert’s concerns.

SCAs findings

The precautionary principle requires decision makers to adopt a cautious approach, and they are compelled to take protective and preventative measures before anticipated environmental harm materialises. Such caution is required where there is a lack of scientific knowledge and uncertainty as to the consequences of an environmental decision. This is a firmly rooted principle and has found application in various international declarations such as the Rio Declaration on Environment and Development of 1992.

Where a decision maker fails to apply the precautionary principle, this is a ground upon which the decision can be found to be unlawful. The SCA held that the High Court’s finding that the precautionary principle does not find application in review proceedings was flawed. The principle plays a fundamental role in assisting decision makers when exercising their discretion. Where there is a lack of scientific information and uncertainty as to the consequences of an environmental decision, the approach should be to apply the precautionary principle. This approach is consistent with the subject matter, scope, and purpose of the Act.

It is peremptory for the Executive Council to require an applicant to submit an assessment in terms of NEMA if there is reason to believe that the release of the GMO would pose a threat to indigenous species or the environment. This assessment comes after the finding that the precautionary principle should be applied. The High Court erred by conflating the application of the precautionary principle and the need for the assessment.

Conclusion

The SCA found that the Executive Council failed to apply the precautionary principle that it ought to have applied, due to the lack of scientific information and uncertainty as to the consequences of the release of the GMO. Additionally, the Executive Council failed to comply with the Act as it failed to request Monsanto to submit an assessment in terms of NEMA.

African Centre for Biodiversity NPC’s appeal was therefore upheld with costs, including the costs of two counsel and the approval of the GMO was set aside. The decision to approve the GMO was remitted back to the Appeal Board for reconsideration.

Aslam Moosajee

Executive Dispute Resolution

[email protected]

Zameer Omar

Candidate Legal Practitioner Dispute Resolution

[email protected]