Any hopes of a commercially available genetically modified drought-tolerant maize variety have been dealt a blow by the Supreme Court of Appeal.
Opponents of genetically modified crops in South Africa are celebrating a hard-earned win against the international giant Bayer and its predecessor, Monsanto.
Last week, the Supreme Court of Appeal (SCA) in Bloemfontein set aside “several layers of decision-making” on Bayer’s application for commercially releasing its drought-tolerant GM maize variety, MON87460.
The African Centre for Biodiversity (ACB) has been contesting MON87460’s commercial release for nine years. Despite failing in its previous legal attempts, it persisted in its view that the executive council for genetically modified organisms (GMOs) had “merely rubber-stamped” Monsanto’s original application for authorisation for MON87460.
The ACB said the executive council had uncritically accepted Monsanto’s “paucity of evidence” that the variety “poses no threat to human health or the environment”. It also allegedly ignored contrary evidence from ACB experts.
The five judges who heard the ACB’s appeal unanimously set aside previous judgments favouring the minister and director-general of agriculture, the executive council, and the appeal board on GMO, Monsanto and Bayer.
The ACB said the appeal court found that lower courts did not adequately apply the “precautionary principle” in their judgments in favour of MON87460.
The ClientEarth website says that where there is uncertainty about the risk of environmental harm, the precautionary principle allows protective measures to be taken without having to wait until the harm materialises.
The International Institute for Sustainable Development says the precautionary principle reverses the burden of proof. It requires the individual or entity proposing the activity to prove it is not harmful.
The ACB said the appeal court found an “abject failure” by the executive council to comply with legislation requiring Monsanto first to submit an environmental impact assessment of the possible harms of MON87460.
The judgement referred the application back to Bayer and the relevant decision-making authorities with the added order that all necessary legal obligations must be met and considered in subsequent considerations.
“The finding is extremely significant because it brings into sharp relief the rubber-stamping nature of decision-making in South Africa concerning GMOs,” said ACB director Mariam Mayet.
“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.”
Bayer said it was disappointed with the appeal court judgment and would decide its next steps after consulting its legal team and the relevant government and industry entities.
“Despite the setback of this successful appeal by the ACB … it is important to note that none of the other genetically modified traits currently available in the market are implicated in this matter,” said Bayer.
“We are confident that all our commercially available trait technologies and seed can be used safely and effectively like they have been for over two decades in South Africa and worldwide. [They have] elevated sustainable agricultural production around the world.”
Bayer said it is committed to complying with all local and international regulatory standards. The company would cooperate with industry organisations and government entities to resolve the challenges related to approval for MON87460.
Read the Supreme Court of Appeal’s judgement here.
