CoA deals blow to farmer who lost 1,716 cattle to FMD
Goitsemodimo Kaelo | Monday August 25, 2025 10:24
Justices of the apex court on Friday upheld an appeal by the Attorney General, overturning a Francistown High Court decision that awarded the farmer, Louis Alberts, payment of P6.8 million as fair and adequate compensation for the 341 pedigreed and 1,375 commercial cattle he lost.
Alberts argued that the amount represented the difference between the fair value he ascribed to his pedigree and commercial herds and the amounts he in fact received from the government as compensation.
He said his cattle were seized even though they were found to be disease-free and had been subsequently vaccinated.
According to court papers, Francistown High Court judge, Justice Lot Moroka had awarded Alberts his claims, granting him judgment in all the amounts he claimed following trial.
This was after the Ministry of Agriculture had seized his cattle during an outbreak of FMD and the surrounding areas in 2011.
Alberts, who was compensated in terms of the Diseases of Animals (Determination of Value of Compensation) Order, Statutory Instrument 54 of 2011, accepted the compensation under protest.
Clause 2 of the Order specified that- 'The value of compensation for slaughtered cattle in the areas of Zone 6 and 7 infected with Foot and Mouth Disease shall be P1,700 per animal, irrespective of the age, condition, or breed of the animal'.
It is said that during the trial, it was undisputed that the Ministry of Agriculture had seized Albert's cattle during an outbreak of FMD in Matsiloje and the surrounding areas (Zones 6 and 7) in 2011.
The action is said to have been taken in reliance on the Diseases of Animals Act Cap 37:01. Section 4(a) which empowers the Director of Veterinary Services by order in the Gazette to declare any area to be an infected are; while section 5(1) (d) authorises the Director to direct that any animal within an infected area be isolated, inoculated, dipped, treated or slaughtered for the purpose of disease control.
Section 12 permits the Director, or any person the Director authorises in writing, to cause to be slaughtered 'any animal infected or suspected of being infected with any disease, or any animal which has been in contact with any disease, or any animal which has been in contact with a diseased animal, or has otherwise been exposed to infection or contagion'.
For purposes of this appeal, the court said the most crucial provision is section 14A(1)(a), which empowers the minister to determine by Order in the Gazette 'the value of compensation for an animal slaughtered'.
Section 14A(2) specifies the factors the minister must consider in determining the amount.
In his claim, Alberts invoked section 8 of the Constitution, which is headed 'Protection from deprivation of property'. Section 8(1)(b)(i) prohibits deprivation of property except where a law makes provision 'for the prompt payment of adequate compensation'. On the other hand, the ministry's plea explicitly asserted that 'the compensation paid is in terms of statutory provisions and is therefore not in violation of the Constitution'.
However, in a judgment prepared by Edwin Cameron, and agreed to by justices Mercy Garekwe and Michael Leburu, the court believes Alberts' approach was narrow as it did not seek to review the process, motives, or reasonableness of the compensation the Order determined. Cameron reasoned that if the legislative act's embodiment of the constitutional norm is deficient, the provision must first be challenged on that ground.
'Permitting aggrieved litigants to ignore a statute or a statutory Order, by invoking instead the provision in the Constitution that it seeks to fulfill, would entail incoherence in decision-making and application. This case illustrates the problem. The plaintiff, apart from gesturing at a challenge to the powers the statute confers on the minister, left the provisions of the 2011 Order intact,' Justice Cameron reasoned.
Furthermore, he said the Order, while not a statute, was issued under the statute and enjoyed the force of a statutory instrument. 'If the plaintiff were to succeed, this would leave the Order at odds with the Constitution. Both in concept and in practice, this was disjointed. In short, to attain what he claimed was adequate compensation under the constitution, the Plaintiff had to challenge the value the Order stipulated first,' he added.
Cameron said until an invalid administrative act is set aside by a court, it exists as a matter of legal act, and has legal consequences which may, themselves, be valid.
He also said the 2011 compensation Order may have been invalid for a reason or reasons that a challenge would have uncovered, but these proceedings never explored that possibility.
'For these reasons, the appeal must succeed, with costs. The order of the High Court is accordingly set aside,' Cameron said in conclusion.