FMD outbreak 2011 victims prevail against Gov't
Mpho Mokwape | Monday December 4, 2023 06:00
The case that judge Kebonang referred to as perhaps the longest undecided case in the history of the country has been decided with the Registrar of the High Court directed to make a determination within 21 days of the order on what would amount to fair compensation or market value of the victims’ livestock. The decision comes after the 46 victims of the FMD outbreak filed a review application in 2011 challenging the government for many issues and mainly the payment of P1, 700.00 per beast as compensation. In the judgment, Kebonang set aside the decision of the director in the Department of Animal Health to slaughter the applicants’ livestock and the compensation amount of P1, 700.00. “The review application succeeds. The decision of the director to slaughter the applicants’ livestock is reviewed and set aside and the compensation of P1, 700.00 is also set aside. The question of what would amount to fair compensation or market value of the applicants’ livestock is referred to the Registrar for determination,” he said. The judge explained that although the amount appears to be definitive and ascertainable and to provide a guide for market value, the amount reflected the prices as they were in 2011. He said in his view, the amount could not be appropriate indicator of the fair market value because it was simply too remote in time when one has regard to the fact that the year now is 2023 therefore, for that reason that is why the question of fair market value was referred to the Registrar.
Justice Kebonang further explained that valuation determined by government was irrational in that it placed the same value for infected and uninfected animals. “Common sense dictates that the valuations should have been different. In respect of infected animals the valuation should have been the animal in its infected state, in which case its value would be the value of the usable parts of the slaughtered carcass while in respect of the uninfected animals, it should have been the disease free value of such animals,” he said. He explained that a slaughter value would be justified in respect of infected animals because once an animal is infected its value is greatly diminished and that such animal cannot be used for breeding, milking nor sold for consumption. Kebonang said the infected animals cannot hold the same value in respect of healthy animals, therefore the compensation amounts stand to be reviewed and set aside.
Kebonang’s take on compensation When deciding on the matter, Kebonang explained that the Constitution of Botswana protects the right to property and that Section 8 (1) of the Constitution in particular provides that no property of any description shall be compulsorily taken possession of and that no interest or right over property of any description shall be compulsorily acquired. “The right of ownership may however, under certain circumstances, be interfered with. For instance, under Section 8 (1) of the Constitution, one may still be dispossessed of their property if it is in the public interest to do so. Where such dispossession happens, the State is however, obliged to pay the dispossessed prompt and adequate compensation under section 8 (b) of the Constitution,” he said. He noted that the applicants submitted that they were entitled to adequate and prompt compensation under the Constitution while the respondent argued that the provisions of Section 8 are inapplicable and that the amount specified by government as compensation was adequate.
Admittedly, he said the Constitution does not define what amounts to property nor does it give any classifications of property, notwithstanding that property is related to the concept of ownership and that the right of ownership in turn is related to the concept of absoluteness which confers on an individual exclusive rights in respect of or to a thing. “A thing or property can either be, real, personal, corporeal, incorporeal, movable or immovable. Whatever form it takes, ownership rights are protected under the Constitution. Thus, cattle or livestock which constitute personal property would be property protected under Section 8 of the Constitution,” said the judge. He said the dispossession of the applicants of their livestock under the Diseases of Animals Act was therefore, not unconstitutional nor did it amount to unlawful expropriation as contended for by the applicants. He emphasised that Section 14 (2) of the Diseases of Animals Act stated that no compensation shall be payable in respect of any animal slaughtered for the purpose of the control of disease except- "(a) in the case of an animal which, when slaughtered, is found not to be infected or likely to spread infection of any disease; and (b) when animals which may be infected with disease are slaughtered in order to prevent the further spread of such disease." “The applicants claim that they are entitled to be made whole in respect of their livestock as there was no justification for their slaughter. They submitted that as owners of the livestock in question, they have a constitutional right to adequate compensation. It would appear to me that there would be no compelling justification for not completely indemnifying the applicants for their loss." He mentioned that the object of adequate compensation under the Constitution appeared to be to allocate certain losses incurred and the applicants’ livestock was not taken under the Constitution but under the provisions of the Diseases of Animals Act.
Kebonang said although this Act provides for payment of compensation, it does not provide a level at which it should be paid and that it is generally accepted though that the amount of compensation for any loss or dispossession of property must be a fair amount. “A fair amount in the context of the present case would be the fair market value of the animals destroyed, which would simply be the price that a willing buyer would pay a willing seller in the open market,” he said. The applicant's case The applicants accepted that there was a FMD outbreak in Zone 6 and 7, and that such an outbreak needed some measure of vigilance and control of cattle and livestock generally to control and contain the outbreak. According to court papers, what the applicants had issue with was the necessity for the slaughter of their livestock. They contended that Zone 6 is a large demarcated area stretching from Foley Siding at its southernmost end to Ramokgwebana in the far north and covering nearly the whole of the North East Administrative District and parts of Orapa. In their submissions they argued that the outbreak did not affect the entire Zone 6 area but was localised around Matshelagabedi area and involved a small number of cattle and that their farms were some 40 kilometres away from the affected areas and that their cattle had not been infected or exposed to the FMD. “They further state that they submitted their cattle for examination and testing by the Veterinary Department and that the tests found that their cattle were free from and uninfected by FMD. In addition to the tests, the applicants stated that their livestock was subjected to a three stage process of vaccination at the instance of the Department of Veterinary Services. Although the vaccination process was unnecessary as none of their cattle had been infected or exposed to FMD, they agreed to it as a safeguard,” read the court papers.
Subsequently, it was the applicants' case that while waiting for the last course of vaccination they were then told, to their shock and dismay, that the last course of vaccination would not be done and that all the animals in Zone 6, would be slaughtered to depopulate the area. The applicants said their cattle were then seized by the Department of Veterinary Services and they were then made to sign affidavits signifying their assent to their dispossession of their livestock. Regarding the compensation amount to be paid, they maintained that the amount of P1, 700 was never agreed on nor were they ever consulted on it and according to them, the amount was inadequate and far below the market prices of around P4000.00 prevailing at the time.
In conclusion, it was the applicants' case that the decision to slaughter their cattle and on the compensation amounts were irrational as to warrant being reviewed and set side. They sought the following reliefs
*Reviewing and setting aside the respondent's decision taken on 3rd or about August 2011, to carry out a wholesale slaughter of cattle uninfected with Foot and Mouth Disease in and around Tonota and east of the Al, Gaborone-Francistown Road, more specifically in and around Mmabobowe, Tshetihae and the surrounding areas *Declaring that the decision to carry out the wholesale slaughter of the applicants' cattle and the manner in which it is being enforced and implemented by the respondent amounts to unlawful expropriation and is unconstitutional.
*Declaring that the decision by the respondent to pay an amount of P 1, 700 per beast to the applicants for their slaughtered cattle, the conditions attached to said payment and the entire manner of the determination of compensation to the applicants is unconstitutional and violates, among others, Section 3, 4, and 8 of the Constitution of Botswana
*Declaring the whole approach and measures taken by the respondent to the treatment and containment of Foot and Mouth in Zone 6 to be unreasonable, irrational, overboard, disproportionate in impact, and mala fide.
*Declaring that the respondent in its handling of the Foot and Mouth Disease in those restricted instances where it has been established, namely in and around Morobosi, Madibeng and Matshelagabedi, as well as its decision to depopulate the Tonota area east of the Al, Gaborone-Francistown Road, acted ultra vires the provisions of the Diseases of Animals Act and therefore unlawful. *Ordering such further and alternative relief as the court deems meet and appropriate *Directing that the respondent pay the costs of this application on the scale as between attorney and client. Respondent’s case The respondent denied that the decision to slaughter the applicants’ cattle was unlawful or irrational and stated as follows,
*That FMD is a highly contagious and communicable disease which can lead to horrendous consequences for the country and the nation at large and jeopardise the country's beef and allied products and its hard earned reputation as a leading beef exporting country. *That Botswana has a large animal population which finds its home in communal grazing areas and openly shared environments which greatly pre-dispose them to Foot and Mouth Disease infection
*That there was a duty to notify the international community once the disease was discovered.
*That the slaughter of the animals was justified to fast track the recovery of Zone 6 and restore and open it to the international market. 27.5 That the compensation amount of P1, 700 was adequate and that the applicants were trying to hold the nation at ransom. *That in terms of the Diseases of Animals Act, the decision of the Director of Veterinary Services could not be challenged. The above in a nutshell, represents the parties' respective positions. I now proceed to consider the merits of the respective submissions. The facts of the Case The background of the case is that sometime in early 2011, Botswana encountered an outbreak of the FMD and on or around the 8th July 2011, the government, through the Department of Veterinary Services published an order declaring the whole of Zone 6 and 7 as infected with FMD. The court papers indicated that the order published under Statutory Instrument No. 55 of 2011 also declared that movement of cloven hoofed animals and their products into and out of Zone 6 and 7 was prohibited except under and in accordance with a permit issued by a veterinary officer. By the time the Statutory Instrument was published in July 2011, Cabinet had a month earlier, that is, on the 6th June, 2011, already approved the vaccination, slaughter and burial of all cattle in Zone 6 and a cash compensation of P1,700 per beast. The applicants, whose farms were located within the Zone 6 area, had their cattle seized and slaughtered and it was the decision to slaughter their cattle that has brought them to court.
Appearing for the applicants is Phemelo Mosweunyane whilst Senior Counsel Diba Diba appeared for the State.