THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 934/2023

In the matter between:
AFRICAN CENTRE FOR BIODIVERSITY NPC APPELLANT
and
MINISTER OF AGRICULTURE, FORESTRY
AND FISHERIES FIRST RESPONDENT
DIRECTOR-GENERAL: DEPARTMENT OF
AGRICULTURE, FORESTRY AND FISHERIES SECOND RESPONDENT
EXECUTIVE COUNCIL FOR GENETICALLY
MODIFIED ORGANISMS THIRD RESPONDENT
APPEAL BOARD, GENETICALLY MODIFIED
ORGANISMS FOURTH RESPONDENT
MONSANTO SOUTH AFRICA (PTY) LTD FIFTH RESPONDENT
BAYER (PTY) LTD SIXTH RESPONDENT

Neutral citation: African Centre for Biodiversity NPC v Minister of Agriculture,
Forestry and Fisheries and Others (934/2023) [2024] ZASCA 143
(22 October 2024)
Coram: MOLEMELA P and PONNAN and NICHOLLS JJA and KOEN and
COPPIN AJJA
Heard: 19 September 2024

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Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website,
and release to SAFLII. The date for hand dow n is deemed to be 22 October 2024 at
11h00.
Summary: Genetically Modified Organisms Act 15 of 1997 – application for a permit
to conduct activities in respect of genetically modified organisms – s 5(1)(a) – failure
by decision-makers to determine whether applicant must submit an assessment in
accordance with the relevant provisions of the National Environme ntal Management
Act 107 of 1998 – approval of application set aside – application referred back to
decision-makers for reconsideration.

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___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from : Gauteng Division of the High Court, Pretoria (Tolmay J, sitting as
court of first instance):
a The appeal is upheld with costs including those of two counsel to be paid by
the respondents jointly and severally, the one paying the other to be absolved.
b The order of the court a quo is set aside and replaced with the following order:
‘1 The application succeeds with costs including those of two counsel to be paid
by the respondents jointly and severally, the one paying the other to be absolved.
2 The following decisions are reviewed and set aside:
2.1 The fourth respondent’s app roval during or about Ju ne 2015 , of the fifth
respondent’s application for the general release of MON87460;
2.2 The third respondent ’s decision of 1 September 2016 , dismissing the appeal
lodged by the appellant against the fourth respondent’s approval of the fifth
respondent’s application for the general release of MON87460; and
2.3 The first respondent’s decision of 2 December 2016 , confirming the dismissal
of the appeal lodged by the appellant against the fourth respondent’s approval of the
fifth respondent’s application for the general release of MON87460.
3 The fifth respondent’s application for the approval of the general release of
MON87460 is referred back to the fourth respondent for re-consideration.’
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Ponnan JA ( Molemela P and Nicholls JA and Koen and Coppin AJJA
concurring):
[1] The use of genetically modified organisms (GMOs) in South Africa is regulated
by the Genetically Modified Organisms Act 15 of 1997 (the Act) and, the Regulations
framed thereunder, the Genetically Modified Organisms Regulations (the

framed thereunder, the Genetically Modified Organisms Regulations (the
Regulations).1 The purpose of the Act and the Regulations is, inter alia, to promote the
responsible development, production, use and application of GMOs within the

1 GNR 120 of 26 February 2010.

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framework of the Constitution and the National Environmental Management Act 107
of 1998 (NEMA).

[2] The Act establishes an Executive Council for Genetically Modified Organisms
(the Executive Council) (s 3), and an Advisory Committee (the Advisory Committee)
(s 10). A permit is required for the release of GMOs. 2 Whether or not a permit is
granted falls to be determined b y the Executive Council in consultation with the
Advisory Committee. 3 The process envisaged is a fact and science -based
investigation into whether there are any risks posed by the release of a particular GMO
into the environment and whether these risks can be effectively managed. To enable
this, the Advisory Committee evaluates the scientific components of applications for
permits and report s to the Executive Council, which ultimately decides whether to
approve the application, and issue a permit.

[3] An application for a permit: (a) must be advertised and any interested party may
submit com ments to the Executive Council in respect of the application; 4 (b) must
include a scientifica lly based risk assessment in respect of the potential adverse
effects of the GMO on the environment as well as human and animal health and
safety;5 and, (c) requires an assessment in terms of NEMA or any other applicable
laws, if this is called for by the Executive Council,6 or if there is reason to believe that
the release of th e GMO would pose a threat to an indigenous species or the
environment.7 In considering whether a permit should be granted, the Executive
Council and Advisory Committee are required to determine whether a proposed
activity poses a risk to human and animal health or the environment.8

[4] On 14 July 2014, the fifth respondent, Monsanto South Africa (Pty) Ltd
(Monsanto), applied to the Executive Council for a permit for the general release of a
genetically modified variety of maize, described as MON87460. MON87460,

2 Section 5 read with Regulation 2.

2 Section 5 read with Regulation 2.
3 Section 5(1)(b).
4 Regulations 9(1), 9(5)(f) and 9(6).
5 Regulation 3(3)(a).
6 Regulation 3(3)(d).
7 Section 78 of the National Environmental Management: Biodiversity Act 10 of 2004.
8 Regulations 3, 4 and 7.

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according to Monsanto, has been genetically modified to reduce yield loss in water
limited conditions. Monsanto asserts that:
‘The reduced yield loss of maize containing MON 87460 is achieved by the expression of the
inserted Bacillus subtilis cold shock protein B (“CSPB”). This protein has been extensively
studied and is known to facilitate adaptation to environmental stress (such as water sca rcity)
by binding secondary RNA structures thus helping to preserve normal cellular function. Maize
containing MON 87460 also expresses the neomycin phosphotransferase II (“NPTII”) protein
derived from Escherichia coli . The NPTII protein in MON 87460 confe rs resistance to
Kanamycin antibiotic. The purpose of inserting the gene encoding for the NPTII protein was
so that there was an effective method for selecting cells after transformation (in other words
so that there was a way of selecting plant cells whic h contain the CSPB gene during early
product development).’

[5] Monsanto submitted both confidential and non -confidential versions of the
application, which included an assessment of the risks relating to human and animal
health, toxicology, allergenicity and nutrition. It was advertised in the Rapport,
Business Day and Beeld newspapers during March and April 2014. Interested and
affected parties were invited to comment or object. No comments or objections were
received in response to the advertisements. T he Advisory Committee, having
considered the application, issued a recommendation on 17 December 2014 that the
application be approved. On the strength of the Advisory Committee’s
recommendation, the Executive Council granted a permit to Monsanto on 12 Jun e
2015 for the general release of MON87460.

[6] On 7 August 2015, the appellant, the African Centre for Biodiversity NPC
(ACB), a non -governmental advocacy organisation, with a focus on biosafety and
agricultural biodiversity, appealed in terms of s 19 of the Act against the approval

agricultural biodiversity, appealed in terms of s 19 of the Act against the approval
granted by the Executive Council to Monsanto for the general release of MON87460.
Monsanto submitted a response to ACB’s appeal on 13 July 2016. The Appeal Board,
by a majority, dismissed the appeal on 1 September 2016 , and th e Minister of
Agriculture, Forestry and Fisheries (the Minister) confirmed the Appeal Board’s
decision on 2 December 2016.

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[7] In April 2017, ACB applied to the Gauteng Division of the High Court, Pretoria
(the high court), for the following relief:
‘1. the following decisions are reviewed and set aside:
1.1. the Fourth Respondent’s [Executive Council’s] approval during or about June 2015, for
the general release of MON87460;
1.2. the Third Respondent’s [Appeal Board’s] decision of 01 September 2016, dismi ssing
the appeal lodged by the Applicant against the Fourth Respondent’s approval for the general
release of MON87460;
1.3. the First Respondent’s [Minister’s] decision of 02 December 2016, confirming the
dismissal of the appeal lodged by the Applicant against the Fourth Respondent’s approval for
the general release of MON87460 by the;
2. the Fifth Respondent’s [Monsanto’s] application for the approval for the general
release of MON87460 is referred back to the Fourth Respondent for reconsideration with such
guidelines as this Honourable Court deems fit;
. . .’

[8] The Minister, the Director -General: Department of Agriculture, Forestry and
Fisheries, the Appeal Board and the Executive Council (collectively referred to as the
State respondents) were cited as the first to fourth respondents, respectively.
Monsanto was cited as the fifth respondent in the application. After the launch of the
application, Bayer (Pty) Ltd (Bayer) acquired ownership of Monsanto and , as a result
of the permits and licences relevant to MON87460 having been transferred to it, Bayer
came to be joined as the sixth respondent to the proceedings.

[9] The high court (per Tolmay J) dismissed the application on 27 June 2023, but
granted leave to ACB to appeal to this Court.

[10] The thrust of the appellant’s case is that the State respondents accepted, at
face value, the claims made by Monsa nto and failed to independently and critically
evaluate Monsanto’s application to satisfy themselves that the health and safety risks
associated with the general release of MON87460 had been properly addressed. The

associated with the general release of MON87460 had been properly addressed. The
appellant contends that the expert evidence that served before the State respondents,
ought to have triggered the application of the precautionary principle enshrined in s 2
of NEMA. This, for two main reasons: first, there was a lack of scientific data from
which conclusions about the safety of MON87460 could be drawn; and second, the

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data that had been made available supported concerns about health risks arising from
the use of MON87460. Accordingly, so the contention proceeds: (a) the Executive
Council accepted the data submitted by Monsanto without any consideration of the
veracity, accuracy and completeness thereof; (b) the Appeal Board did not engage
with the grounds of appeal and the expert evidence, but simply rubber -stamped the
decision made by the Executive Council; and, (c) the Minister further rubber-stamped
the Appeal Board’s decision by way of a confirmation letter that furnished no reasons
at all.

[11] Parenthetically, it is perhaps necessary to touch (albeit briefly) on t he
precautionary principle, given its centrality to the debate. The precautionary principle,
in essence, requires that where there exists evidence of possible environmental harm,
decision-makers ought to adop t a cautious approach and are compelled to take
protective and preventive measures before the anticipated harm materiali ses. Whilst
there has been reference to the precautionary principle since at least the 1970s, it has
more recently firmly taken root and has been referred to in almost every recent
international environmental agreement, including the 1992 Rio Declaration on
Environment and Development (informally described as the Earth Summit) (the Rio
Declaration), the 1992 UN Framework Convention on C limate Change (Article 3(3)),
the June 1990 London Amendments to the Montreal Protocol on Substances that
Deplete the Ozone Layer (Preamble, para 6) and the 1992 Convention on Biological
Diversity.9

[12] Principle 15 of the Rio Declaration provides:
‘In order to protect the environment, the precautionary approach shall be widely applied by
States according to their capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for po stponing cost-
effective measures to prevent environmental degradation.’

effective measures to prevent environmental degradation.’

[13] The Cartagena Protocol on Biosafety to the Convention on Biological Diversity
reaffirmed the precautionary approach contained in Principle 15 of the Rio Declaration.
The objective of the Protocol is set out in Article 1 as follows:

9 Director-General National Parks & Wildlife Service v Shoalhaven City Council [1993] NSWLEC 191
(Shoalhaven) at 15-16.

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‘In accordance with the precautionary approach contained in Principle 15 of the Rio
Declaration on Environment and Development, the objective of this Protocol is to contribute to
ensuring an adequate level of protection in the field of safe transfer, handling and use of living
modified organisms resulting from modern biotechnology that may have adverse effects on
the conservation and sustainable use of biological diversity, taking into account risks to human
health, and specifically focusing on transboundary movements.’
South Africa ratified the Cartagena Protocol in August 2003 and it is included as an
Annexure to the Act for information purposes.

[14] In Fuel Retailers, the Constitutional Court, in examining the duties imposed on
environmental authorities (such as the State respondents in this case), emphasised
that the approach adopted in our environmental legislation (a reference in that case to
NEMA) is one of risk -aversion and caution, which entails ‘taking into account the
limitation on present knowledge about the consequences of an environmental
decision’.10 The Court held that the precautionary principle ‘is applicable where, due
to unavailable scientific knowledge, there is uncertainty as to the future impact of the
proposed development’.11

[15] In WWF South Africa v Minister of Agriculture, Forestry and Fisheries and
Others,12 faced with a challenge to the determination of fishing quotas , the court (per
Rogers J) made clear that the determination ought to have been informed by binding
principles of environmental protection, conservation and sustainability, including the
precautionary principle. Any decision taken therefore could only lawfully be taken with
regard to all of these objectives and principles. 13 Indeed, the failure by the decision -
maker to apply the precautionary principle – and the fact that the decision ultimately
taken was at odds with the precautionary principle – were cited as grounds upon which

taken was at odds with the precautionary principle – were cited as grounds upon which
the determination was found to be unlawful, resulting in a declaration of invalidity.14


10 Fuel Retailers Association of Southern Africa v Director -General: Environmental Management,
Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others 2007 (6)
SA 4 (CC) (Fuel Retailers) para 81.
11 Ibid para 98.
12 WWF South Africa v Minister of Agriculture, Forestry and Fisheries and Others [2018] ZAWCHC 127;
[2018] 4 All SA 889 (WCC); 2019 (2) SA 403 (WCC) para 104.
13 Ibid para 83.
14 Ibid para 117.

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[16] In the course of the judgment, where reference is made to several comparable
international jurisdictions,15 Rogers J observed:
‘The risk -averse and precautionary approach mandated by NEMA and MLRA also has a
bearing on this aspect of Ms Ndudane’s reasoning. The precautionary principle features widely
in environmental legislation around the world. It entails that where there is a threat of serious
or irreversible damage to a resource, the lack of full scientific certainty should not be used as
a reason for postponing measures to prevent environme ntal degradation (Jan Glazewski
Environmental Law in South Africa 19-20; cf Space Securitisation (Pty) Ltd v Trans Caledon
Tunnel Authority & others [2013] 4 All SA 624 (GSJ) paras 45-48)’.16

[17] The Constitutional Court adopted a similar approach in Fuel Retailers,17 which
was concerned with the review of a decision to grant authorisation for the construction
of a filing station. In outlining the duties of decision -makers in that context, the Court
held:
‘Before concluding this judgment, there are two matters that should be mentioned in relation
to the duty of environmental authorities which are a source of concern. The first relates to the
attitude of Water Affairs and Forestry and the environmental a uthorities. The environmental
authorities and Water Affairs and Forestry did not seem to take seriously the threat of
contamination of the underground water supply. The precautionary principle requires these
authorities to insist on adequate precautionary measures to safeguard against the
contamination of underground water. . . In these circumstances one would have expected that
the environmental authorities and Water Affairs and Forestry would conduct a thorough
investigation into the possible impact of th e installation of petrol tanks in the vicinity of the
borehole, in particular, in light of the existence of other filling stations in the vicinity. The

environmental authorities did not consider the cumulative effect of the proliferation of filling
stations on the aquifer.’18

[18] The high court’s rejection of the appellant’s reliance on the pr ecautionary
principle was based on its finding that the precautionary principle does not find direct
application in review proceedings. However, such an approach disregards the
fundamental role that the precautionary principle plays in directing decision-makers in

15 Ibid para 101 –104. See also J Glazewski and L Plit [2015] ‘Towards the Application of the
Precautionary Principle in South African Law’ (2015) 26(1) Stellenbosch Law Review at 190.
16 Ibid 100.
17 Fuel Retailers fn 10 above.
18 Ibid paras 98-99.

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the exercise of their d iscretion. The current state of knowledge and uncertainty, the
potential for serious or irreversible harm and the adoption of a cautious approach is
clearly consistent with the subject -matter, scope and purpose of the Act. In Director-
General National Parks & Wildlife Service v Shoalhaven City Council, Stein J observed
that:
‘In my opinion the precautionary principle is a statement of common sense and has already
been applied by decision-makers in appropriate circumstances prior to the principle being spelt
out. It is directed towards the prevention of serious or irreversible harm to the environment in
situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists
concerning the nature or scope of environmental harm (whether this follows from policies,
decisions or activities), decision makers should be cautious.’19

[19] Delineating the role of the courts in circumstances such as this , the
Constitutional Court stated:
‘The role of the courts is especially important in the context of the protection of the environment
and giving effect to the principle of sustainable development. The importance of the protection
of the environment cannot be gainsaid. Its protection is vital to the enjoyment of the other
rights contained in the Bill of Rights; indeed, it is vital to life itself. It must therefore be protected
for the benefit of the present and future generations. The present generation holds the earth
in trust for the next generation. This trusteeship position carries with it the responsibility to look
after the environment. It is the duty of the Court to ensure that this responsibility is carried
out.’20

[20] The experts, who provided opinions in suppo rt of the appellant, highlighted
several fundamental concerns, all of which w ere articulated in the appeal document
that served before the Appeal Board. Those concerns include:
(a) When regard is had to the Cartagena Protocol, which requires that claims of

(a) When regard is had to the Cartagena Protocol, which requires that claims of
scientific certainty be substantiated with evidence to prove lack of potential for
scientific hazards; Monsanto’s risk assessment was inadequate in identifying plausible
hazards;
(b) Monsanto’s claims of lack of allergenicity are unsubstantiated;
(c) Monsanto itself identified a fragment of the protein used in MON87460 (cspB) that
was resistant to pepsin digestion, meaning that it is not fully digestible by gastric juices,

19 Shoalhaven fn 9 above.
20 Fuel Retailers fn 10 above para 102.

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further experimentation (such as serum analysis or animal testing) was thus required
to assess potential allergenicity;
(d) The data that Monsanto had included in its application showed high expression of
cspB in po llen, but Monsanto has not conducted any studies on the potential and
likelihood of allergenic responses to pollen;
(e) There is no history of the safe use of MON87460 in the form in which it is expressed
inasmuch as the data submitted by Monsanto in support of its safety claims were
based on fermented and digested forms of the product;
(f) There was no evidence in the record before the Executive Council, the Appeal
Board and the Minister on the effects of food processing and the safety of human
exposure via cooked MON87460 in South African diets, the only data included was
summaries of the following –
(i) A chicken feeding study in which raw maize was fed to chickens;
(ii) An acute toxicity study on the effects on mice of a bacteriall y derived isolated
protein, which has limited application to hum an exposure and is in any event not a
study of all proteins associated with MON87460;
(iii) A rat feeding study;
(iv) A broiler chicken study, which was concerned with food quality standards and not
with any adverse impacts on health; and,
(v) Aggregated field trial summaries, which contain insufficient information to interpret
and apply the findings to the application for approval for the general release of
MON87460.

[21] These are the precise circumstances, so contends the appellant, that ought to
have triggered the application of the precautionary principle by the Executive Council,
the Appeal Board and the Minister. Instead of adopting the prescribed cautious
approach and requiring Monsanto to address the safety concerns that had been
identified, each of the State respondents proceeded to accept the say-so of Monsanto
without any further consideration of safety risks. The precautionary principle ought to

without any further consideration of safety risks. The precautionary principle ought to
have guided the decisions taken by the Executive Council, the Appeal Board and the
Minister. To the extent that they did not have regard to the precautionary principle and
took decisions that were at odds with its prescripts, so the contention proceeds, their
decisions are liable to be reviewed and set aside. However, as interesting a discussion
that a consideration of the se issues is likely to gener ate in the light of the competing

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contentions by the respondents, for the present, they need hard ly detain us. This,
because a further complaint by the appellant, that the State respondents had failed to
comply with s 5(1)(a) of the Act, appears to have gone unanswered.

[22] Section 5(1)(a) of the Act provides that the Executive Council shall:
‘[W]here an applicant applies in the prescribed manner for a permit to conduct activities in
respect of genetically modified organisms determine whether that applicant must, in addition
to his or her application, submit an assessment in accordance with the relevant provisions of
[NEMA], of the impact on the environment and an assessment of the socio -economic
considerations of such activities’.
This provision , w hich is framed in pere mptory terms, places an obligation on the
Executive Council to make a determ ination as to whether or not an applicant must
submit an assessment in accordance with NEMA.

[23] The Rule 53 record contains no express evidence of any determination by the
Executive Council as contemplated by s 5(1) (a). The argument advanced at the bar
was that it would be safe to infer that the Executive Council had indeed determined
that Monsanto did not have to submit such an assessment. However, such evidence,
as there is, points in the opposite direction. The dissenting voice on the Appeal Board
recorded:
‘Environmental Impact Assessment (EIA): There are no Indications/evidence/information to
show that Monsanto was requested to submit an assessment of the impact on the environment
and socio-economic considerations’.
That recordal strongly suggests that, at the time that the Executive Council assessed
the application for a permit for the general release of MON87460, it failed to consider
or determine whether an environmental impact study in terms of NEMA was
necessary.

[24] The high court conflated the obligation arising from section 5(1) (a) of the Act
with the applicability of the precautionary principle, finding that an environmental

with the applicability of the precautionary principle, finding that an environmental
impact study would only be required in the event of the precauti onary principle being
triggered. First, as addressed above, the precautionary p rinciple was triggered and
ought to have been applied. Second , whether the Executive Council, as a matter of
fact, complied with section 5(1) (a) by considering the necessity of an environmental

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impact study to ascertain the impact on the environment of the proposed gen eral
release of MON87460 , was a separ ate and distinct inquiry from whether the
precautionary principle was triggered and should have been applied. It ought to have
been a relatively simple and straightforward matter for the State respondents to have
adduced evidence that a determination, one way or the other, had been made. They
did not. The ineluctable conclusion is that the Executive Council failed to comply with
a mandatory statutory prescript contained in section 5(1) (a). This means that the
Executive Council’s decision cannot stand. Nor, for that matter, it must follow, can the
decisions by the Appeal Board or the Minister.

[25] In the result:
a The appeal is upheld with costs including those of two counsel to be paid by
the respondents jointly and severally, the one paying the other to be absolved.
b The order of the court a quo is set aside and replaced with the following order:
‘1 The application succeeds with costs including those of two counsel to be paid
by the respondents jointly and severally, the one paying the other to be absolved.
2 The following decisions are reviewed and set aside:
2.1 The fourth respondent’s approval duri ng or about June 2015 , of the fifth
respondent’s application for the general release of MON87460;
2.2 The third respondent’s decision of 1 September 2016 , dismissing the appeal
lodged by the appellant against the fourth respondent’s approval of the fifth
respondent’s application for the general release of MON87460; and
2.3 The first respondent’s decision of 2 December 2016 , confirming the dismissal
of the appeal lodged by the appellant against the fourth respondent’s approval of the
fifth respondent’s application for the general release of MON87460.
3 The fifth respondent’s application for the approval of the general release of
MON87460 is referred back to the fourth respondent for re-consideration.’


________________
V M PONNAN
JUDGE OF APPEAL

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Appearances

For the appellant: K Pillay SC with N Stein
Instructed by: Legal Aid South Africa, Johannesburg
Legal Aid South Africa, Bloemfontein

For the first to fourth respondents: J Rust SC
Instructed by: The State Attorney, Pretoria
The State Attorney, Bloemfontein

For the fifth and sixth respondents: P Lazarus SC with I Learmonth
Instructed by: Webber Wentzel, Johannesburg
McIntyre Van Der Post, Bloemfontein