State wins appeal against hemp farmer
Mompati Tlhankane | Tuesday November 8, 2022 06:00
The farmer won the first round earlier this year following Justice Chris Gabanagae’s decision to review and set aside the decision of Permanent Secretary (PS) in the Ministry of Agricultural Development and Food Security to withdraw the exemption granted to de Beer on October 18, 2018.
Looking back to the root of the case, on or about August 2018, de Beer who is the director of a company called Fresh Standard, approached then Minister of Agricultural Development and Food Security, Patrick Ralotsia with a proposal to grow, produce and process products of Cannabis Sativa and Hemp dominant strains for Medical and Industrial purposes in Botswana.
Following that proposal, the PS at that time, communicated approval to the farmer, via a letter dated October 18, 2018, granting him an exemption in terms of Section 28 of the Plant and Protection Act to produce and process products of Cannabis Sativa. de Beer proceeded to obtain suitable land for the purpose of cultivating and growing Cannabis Sativa.
He then invested millions of pula in developing the farm and purchasing and cultivating the plants. On or about May 7, 2019, members of the Botswana Police’s Narcotics Squad went to de Beer’s farm and removed all the plants which had been planted. de Beer enquired from the Ministry of Agriculture as to the reason for the uprooting of the plants and disruption of his business.
On May 22, 2019, de Beer received a letter from the Ministry of Agriculture, signed by the PS, dated March 29, 2019. The letter revoked the exemption granted to de Beer on October 18, 2018. Following the letter of revocation, de Beer filed a hybrid application for leave to file review application out of time and the review on October 14, 2019.
In appealing the High Court’s decision to give de Beer the green light to continue with hemp production the State believed the case was not decided properly at the High Court as there were many irregularities with the filing of a review application by the farmer. The grounds of the State’s appeal were that Gabanagae erred in law in his interpretation of Order 61 (8) of the Rules of the High Court by allowing the respondent's filing of a review application out of time before obtaining leave of the court.
The CoA bench of Judge President Tebogo Tau, Justice Mercy Garekwe and Justice Tebogo Maruping agreed with the State that de Beer’s application for review was filed way out of time as prescribed for the lodgment of review of the proceedings by Order 61 Rule 8 of the Rules of the High Court. “In my view, the appellant's argument that the omnibus application seeking leave to make an application for review out of time and an order for reviewing and setting aside the applicant's decision was incompetent and liable to be set aside has merit,” reads the CoA judgement. The CoA bench added that a combined application for both review and leave to file review out of time was made. They also indicated that raising a point in law that the application was fatally defective and liable to be set aside was proper. Now de Beer will pay the costs of the suit.