Court cautions against abuse of Biowatch principle

The Constitutional Court has cautioned against the abuse of the Biowatch principle, which it says does not mean risk-free constitutional litigation, notes Legalbrief. It made the comment yesterday when dismissing an application by Lawyers for Human Rights (LHR) for leave to appeal a Gauteng High Court (Pretoria) judgment which struck from the roll with an adverse costs order an application brought after Home Affairs officials carried out large-scale search and arrest operations without warrants in private homes in Johannesburg. Scores of people were arrested. The Biowatch principle stems from a judgment (Biowatch Trust v Registrar, Genetic Resources) which provides that even when parties litigating against state parties lose a case, they are generally spared an adverse costs award, provided the case was of genuine constitutional import. The costs order in the LRH matter was confirmed by the Constitutional Court, which concluded that ‘a worthy cause cannot immunise a litigant from a judicially considered, discretionarily imposed adverse costs order’.