The African Centre for Biodiversity (ACB) has welcomed the decision of 11 Judges of the Constitutional Court of South Africa (SA), who, on Tuesday, November 4, 2025, dismissed with costs, an application for leave to appeal filed in November 2024, by the Minister of Agriculture, Forestry and Fisheries; the Director-General, Department of Agriculture, Forestry and Fisheries; the Executive Council: Genetically Modified Organisms Act (EC: GMO Act); and the Appeal Board, Genetically Modified Organisms.
According to the Constitutional Court, the application for leave to appeal was dismissed with costs because it bears no reasonable prospects of success. Thus, the original judgment of the Supreme Court of Appeal (SCA), delivered on October 22, 2024, in ACB’s case against Monsanto/Bayer and the State, when the SCA set aside the commercial approval of genetically modified (GM) drought-tolerant maize, MON 87460, stands.
This historic decision of the SCA was challenged by the Minister of Agriculture et al. in November 2024, in the form of an application for leave to appeal to the Constitutional Court, seeking to overturn a first-ever judicial ruling regarding GMO decision-making in South Africa, handed down by the full bench of five judges of the SCA. The ACB filed papers on November 26, 2024, opposing the leave to appeal.
The SCA’s decision overturned multiple layers of approvals, including:
- The 2015 approval by the EC: GMO Act.
- The 2016 dismissal of ACB’s appeal by the Appeal Board.
- The Minister of Agriculture’s 2016 confirmation of the dismissal of the appeal and the EC’s approval.
- The 2023 High Court judgment of Justice Tolmay against the ACB.
A core of the SCA’s judgment was a finding that the EC: GMO Act failed to follow the correct legal procedure when approving the commercial release of the GM drought-tolerant maize. Further, the SCA found that the EC did not meet a mandatory statutory requirement to assess whether the applicant (previously Monsanto, now owned by Bayer) needed to conduct an environmental impact assessment (EIA).
The SCA’s judgment also stands, which requires the application for the general release of MON87460 to be sent back to the EC for proper reconsideration, in accordance with the requirements of South African law.
The findings and decisions of both the SCA and the Constitutional Court – the highest court in the country – are precedent-setting in SA concerning GMO decision-making processes and will bind the state regarding future decision-making concerning the environmental release of GMOs. It will put an end to the rubber-stamping of GMO approvals and ensure compliance with SA’s laws regarding EIAs before the release of GMOs into the environment.
The ACB expressed relief that this decade-long saga has finally been put to rest and regards both the SCA and Constitutional Court’s decisions as major steps forward in protecting the country’s agricultural future and biodiversity, and respect for the rule of law.
The ACB says it is grateful to Legal Aid South Africa (LASA), which represented ACB, working on the matter over these long years.
“We were represented by K Pillay SC and N Stein and are deeply grateful to the proficient and dedicated LASA team. We are also indebted to Professor Jack Heineman, Dr Angelika Hilbeck, and Dr Eva Sirinathsinji for their expert opinions and support,” stated the group.
The ACB is a research and advocacy organisation working towards food sovereignty and agroecology in Africa, with a focus on biosafety, seed systems and agricultural biodiversity.