GMO debate reignited as SA sets new precedent in court

Source: Pexels

A panel of five judges overturned multiple prior approvals that granted Monsanto, now owned by Bayer, the right to commercially release its genetically modified, drought-tolerant maize variety, MON87460.

The respondents included the Minister of Agriculture, Forestry, and Fisheries; the department's Director-General; the Executive Council for Genetically Modified Organisms (GMOs); the GMO Appeal Board; and Monsanto South Africa.

This landmark ruling is South Africa's first judicial decision on GMO regulation, setting a precedent by not only overturning decisions from the Executive Council, the Appeal Board, the Minister, but also a 2023 High Court judgment by Judge Ronel Gertruida Tolmay who denied the ACB's application but allowed them to appeal to the Supreme Court of Appeal.

“The finding is extremely significant because it brings into sharp relief the rubber-stamping nature of decision-making in South Africa concerning GMOs," says Mariam Mayet, ACB’s director.

"This is something we have witnessed and resisted over the last 21 years – especially the failure to make a proper determination of the risk posed by GMOs to safeguard the constitutional right to an environment that is not detrimental to our health and well-being. This judgment has vindicated us and made these long years of struggle very worthwhile."

Scrutiny of approval

The ACB argued that the Executive Council for the Genetically Modified Organisms (GMO) Act simply approved Monsanto's application for its genetically modified maize without thorough scrutiny.

It claimed that the council uncritically accepted Monsanto's limited evidence asserting that the GMO does not pose risks to human health or the environment. Additionally, the ACB pointed out that the council ignored opposing expert opinions provided by its own experts, which raised concerns about the potential threats of the GMO.

The SCA found that the Executive Council (EC) failed to meet a legal requirement under section 5(1)(a) of the GMO Act. This section mandated that the EC assess whether Monsanto needed to conduct an environmental impact assessment according to the National Environmental Management Act.

The SCA pointed out that it would have been relatively simple for the State to provide evidence showing that such a determination was made, but it did not do so.

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In the initial ruling, Judge Tolmay dismissed the ACB's claims about procedural fairness, stating the process was fair and refusing to send the case back to the EC for further review. The SCA found Judge Tolmay incorrect for not recognising the importance of the precautionary principle in environmental decision-making.

The SCA ruled that this principle was triggered and should have been applied, leading to a successful appeal for the ACB and an order for costs against the state and Monsanto/Bayer.

Support and opposition

The SCA's decision has been met with a mix of support and opposition, with proponents arguing that GMO crops are crucial for enhancing agricultural productivity and sustainability, especially in drought-prone areas.

“Bayer’s mission is to help shape a world where there is health for all and hunger for none," it stated.

"We do this through innovative products and services that equip farmers against the challenges of a changing climate, pests, disease, and economic pressure. Developing biotechnology solutions and breeding more climate-resilient crops like maize, is part of that mission.”

South Africa is among the top 10 countries in the world for genetically modified (GM) crop adoption. The use of GMOs is regulated by the Genetically Modified Organisms Act, which aims to ensure responsible development and application of GMOs while adhering to constitutional and environmental laws.

This Act establishes an executive council and an advisory committee, with permits required for the release of GMOs, determined through consultation between the two bodies​.

“Our next steps will be determined after thorough consultation with our legal team and the relevant government and industry entities," Bayer’s concluded.