Following three years of back and forth tussles with the government over the production of industrial hemp local company Fresh Standard (PTY) LTD has been granted the go ahead by the Gaborone High Court.
The company started production in 2018 following a waiver by then Minister of Agriculture Patrick Ralotsia on October 18, 2018.
The exemption permitted the company to cultivate and grow Cannabis Sativa and Hemp plants, produce and process products from Cannabis Sativa and Hemp dominant strains for industrial and medical purposes in Botswana.
However, following business developments at their farm costing millions, members of the Narcotics Squad of the Botswana Police came to the farm where Fresh Standard had planted its crop in the green house tunnel and removed all the plants they planted.
The company then inquired with the Ministry of Agriculture and other relevant authorities as to the reason for the removal of the plants and disruption of its business.
On May 22, 2019, the company received a letter from the Ministry dated 29th March 2019, signed by the Permanent Secretary in the Ministry of Agriculture.
In the letter the Permanent Secretary purports to withdraw earlier correspondences, including the letter of October 2018, consequently withdrawing the exemption.
On June 11, 2019, the company issued and served a letter on the Minister, addressed to his Permanent Secretary, challenging the purported withdrawal or cancellation of the exemption granted to the Applicant calling upon the Minister to rescind the purported cancellation and reinstate with the threat of legal proceedings if that was not done within seven days of the date of the letter from the their attorneys.
“Upon receipt of the letter, the Permanent Secretary requested the Applicant for a meeting to address the issue. The meeting was scheduled for 21st June 2019. The meeting took place with the Ministry represented by its attorney Mr. Thamsanqa Silitshena. The Applicant avers that Mr. Silitshena clarified the contents of the letter of the 29th March 2019 and indicated that the letter had not, as the Applicant understood it, cancelled or withdrew the exemption of the 18th October 2018,” the Court heard.
“Silitshena explained that the letter merely sought to enable the Ministry of Agriculture to determine if the Applicant was in compliance with the conditions attendant upon the exemption. The Applicant’s attorney assured the Ministry through Silitshena that it was in full compliance with the conditions of the exemption. The Applicant avers that it was agreed between the parties that the Applicant should not proceed with any legal action before 12th July 2019 by which date the Ministry would have reverted and given direction to the Applicant. The Applicant awaited action on the part of the Ministry as undertaken.”
However there was no action on the part of the Ministry despite its undertakings and its exacting commitments from the company not to launch court action.
There being no action still by the Ministry as late as end of July 2019, Fresh Standard decided to approach court for relief. A statutory notice was issued and served on the Ministry in August 2019. Fresh Standard said the usual practice is for the Permanent Secretary to act on behalf of the Minister. They said it was unclear whether the decision to withdraw the exemption was made by the Permanent Secretary or the Minister. In either event, the company, represented by Advocate Duma Boko, were of the view that the decision was unlawful and had to be reviewed and set aside. The Permanent Secretary did not depose an affidavit while former Minister Ralotsia stood by his decision to grant the exemption.
In his ruling Justice Christopher Gabanagae ordered that: “The decision of the Permanent Secretary of the Ministry of Agriculture, (‘the March Decision’) purportedly communicated in the letter dated 29 March 2019 to ‘set aside earlier correspondences’ and, in effect, to purport to withdraw the exemption granted by the Minister in terms of Section 28 of the Plant Protection Act (CAP 35:02] (‘the PPA’) in the letter dated 18 October 2018 (Ref:A27/8/15 II TEMP (82)) (‘the Exemption letter’) is reviewed and set aside.”
He declared that the exemption letter constitutes a valid and lawful exemption in terms of Section 28 of the PPA. The Ministry and the Permanent Secretary (Represented by the Attorney General) lost with costs.
