CAPE TOWN – The African Centre for Biodiversity (ACB) has welcomed with great relief the decision of 11 judges of the Constitutional Court of South Africa, who on 4 November dismissed with costs an application for leave to appeal filed by government officials seeking to overturn a landmark ruling on genetically modified organisms.
The application for leave to appeal was filed in November 2024 by the Minister of Agriculture, Forestry and Fisheries; the Director-General of the Department of Agriculture, Forestry and Fisheries; the Executive Council: Genetically Modified Organisms Act (EC: GMO Act); and the Appeal Board, Genetically Modified Organisms.
No reasonable prospects of success
According to the Constitutional Court, the application was dismissed with costs because it bears no reasonable prospects of success. Thus, the original judgement of the Supreme Court of Appeal (SCA), delivered on 22 October 2024, in ACB’s case against Monsanto/Bayer and the State stands.
The SCA set aside the commercial approval of genetically modified drought-tolerant maize in what represents a historic first-ever judicial ruling regarding GMO decision-making in South Africa.
Decade-long legal battle
This landmark decision was challenged by the Minister of Agriculture and others in November 2024, seeking to overturn the ruling handed down by the full bench of five judges of the SCA. The ACB filed papers on 26 November 2024, opposing the leave to appeal.
The SCA’s decision overturned multiple layers of approvals, including:
• The 2015 approval by the EC: GMO Act
• The 2016 dismissal of ACB’s appeal by the Appeal Board
• The Minister of Agriculture’s 2016 confirmation of the dismissal and the EC’s approval
• The 2023 High Court judgement of Justice Tolmay against the ACB
Legal procedural failures identified
A core finding of the SCA’s judgement was that the EC: GMO Act failed to follow the correct legal procedure when approving the commercial release of the GM drought-tolerant maize.
Furthermore, the SCA found that the EC did not meet a mandatory statutory requirement to assess whether the applicant (previously Monsanto, now owned by Bayer) needed to conduct an environmental impact assessment (EIA).
The SCA’s judgement requires the application for the general release of MON87460 to be sent back to the EC for proper reconsideration, in accordance with South African law requirements.
Precedent-setting implications
The findings and decisions of both the SCA and the Constitutional Court—the highest court in the country—are precedent-setting in South Africa concerning GMO decision-making processes and will bind the state regarding future decision-making concerning the environmental release of GMOs.
The ruling will put an end to the rubber-stamping of GMO approvals and ensure compliance with South Africa’s laws regarding EIAs before the release of GMOs into the environment.
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Relief and gratitude
The ACB expressed relief that this decade-long saga has finally been resolved and regards both the SCA and Constitutional Court’s decisions as major steps forward in protecting the country’s agricultural future and biodiversity, whilst ensuring respect for the rule of law.
The organisation expressed enormous gratitude to Legal Aid South Africa (LASA), which represented ACB throughout the lengthy proceedings. The ACB was represented by K Pillay SC and N Stein, with particular appreciation for the dedicated LASA team.
The centre also acknowledged the contributions of Professor Jack Heineman, Dr Angelika Hilbeck, and Dr Eva Sirinathsinji for their expert opinions and support.
“We also thank all our donors, partners, friends, and the public for walking this long and arduous journey with us,” the ACB stated.
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