On 22 October 2024, the Supreme Court of Appeal (SCA) upheld an appeal by a non-governmental organisation (NGO) which challenged the regulatory approval of genetically modified maize. The SCA applied the precautionary principle, which requires decision-makers to adopt a cautious approach where evidence of possible environmental harm exists.
The matter arose from the approval granted by the Executive Council for Genetically Modified Organisms in respect of a biotechnology company’s application for the general release of a genetically modified variety of maize. The NGO lodged an internal appeal against the approval but that appeal was dismissed by the relevant Appeal Board. The Appeal Board’s dismissal was confirmed by the Minister of Agriculture, Forestry and Fisheries.
The NGO subsequently brought a High Court application challenging the approval decisions and seeking to have it set aside on the basis that the decision-makers:
- failed to assess the possible environmental impacts; and
- should have applied the precautionary principle.
The High Court dismissed the NGO’s application, finding that the precautionary principle was not triggered in review proceedings and that an environmental impact assessment (EIA) was therefore not required.
On appeal, the SCA noted that section 5(1)(a) of the Genetically Modified Organisms Act required the Executive Council to determine whether the biotechnology company needed to submit an EIA in addition to its application. The SCA found no evidence in the record of decision that the Executive Council ever made such a determination. On the contrary, the dissenting opinion of a member of the Appeal Board appeared to show that the Executive Council failed to consider whether an EIA was necessary.
The SCA explained that the High Court incorrectly conflated the Executive Council’s obligation in terms of section 5(1)(a) with the applicability or otherwise of the precautionary principle when it found that an EIA would only be required if the precautionary principle was triggered.
The SCA clarified that the precautionary principle was indeed triggered in this matter and that it should have been applied due to the environmental safety concerns raised by the NGO’s experts. However, regardless of the applicability of the precautionary principle, the requirement to determine the necessity of an EIA in terms of section 5(1)(a) was a separate and distinct obligation that the Executive Council failed to fulfil, rendering its approval invalid. Consequently, the decisions by the Appeal Board and the Minister, which were based on the Executive Council’s approval, were also invalid.
The SCA accordingly set aside the approval decisions and referred the biotechnology company’s application back to the Executive Council for reconsideration. The biotechnology company was ordered to pay the NGO’s costs of the SCA appeal and of the High Court application.