You waited too long to go to court – Judge tells Feedlotters
Spira Tlhankane | Monday September 21, 2026 06:00
In the matter which was dismissed by the court recently, Beef companies, JS Beef (Pty) Ltd and Primefast (Pty) Ltd, were suing the Director of Veterinary Services, Dr Kobedi Segale, and the Minister of Lands and Agriculture, Dr Edwin Dikoloti, and the Attorney General (AG), amongst others, over FMD restrictions, slaughter and exporting cattle.
In his ruling, Tshosa said the applicants had continued with communications and meetings for about four months (April to July 2026), despite it becoming apparent that the discussions were “not bearing any fruits”. Justice Tshosa said the applicants should instead have moved to court immediately to seek the relief they eventually sought. “The Applicants had to file an application immediately seeking the orders that they now seek,” the judge said.
At the centre of the judgment was not only the question of whether the applicants’ case qualified as urgent, but when they should have stopped negotiating and taken their fight to court. The judge found that the applicants had spent months engaging the respondents over the way forward for slaughtering their cattle, despite it becoming increasingly apparent that the discussions were not yielding a solution.
In one of the strongest observations in the judgment, the judge said: “It should have been clear to the applicants that the communications with the first respondent which went on for approximately four months since 02 April to July 2026 were not bearing any fruits. Therefore, it was unreasonable to continue with the communications and meetings with the first respondent. The Applicants had to file an application immediately seeking the orders that they now seek.”
According to the judgment, the applicants had continued communicating with the first respondent Dr Segale from April into July, while also engaging the Botswana Meat Commission (BMC) over issues including the purchase price per kilogramme and slaughter capacity. But, in the judge’s assessment, those discussions could not justify the delay in instituting proceedings.
The judgment records that the applicants had also engaged the chairman of the BMC board, its chief executive officer and livestock manager, seeking clarity on the price per kilogramme and the slaughter capacity that would be made available to them from July 6.
The judge noted that these engagements came on top of discussions with Dr Segale and second respondent Dr Dikoloti concerning the plan for slaughtering the applicants’ cattle. Yet the judge stressed that negotiations did not prevent the applicants from approaching the courts. “It should be noted that although the Applicants were engaged in discussions with the Respondents on the way forward with respect to slaughtering their cattle at BMC Lobatse, the discussion did not prevent them from filling an application,” Tshosa further stated.
The judge then turned to established legal authority dealing with litigants who continue negotiating while procedural deadlines or court remedies are at stake. Using precedent, the judgment reproduced the principle that parties must continue observing litigation procedures even when negotiations are ongoing. “It is an unwritten rule in conduct of litigation that the relevant procedure should be followed and all time limits under the rules observed even if negotiations are still in progress. Settlements on the doorstep of the court frequently occur. However, a litigant who fails to observe time limits because negotiations are going are ongoing does so at his peril,” he noted.
In the judgment the court therefore, made it clear that while negotiations may continue, a litigant cannot allow negotiations to become a reason for failing to protect their position through the courts. The court went further, finding that the applicants should have moved with greater urgency once it became apparent that the discussions were not producing a way forward. “Clearly, the applicants should have acted with necessary expedition to protect their rights particularly when they realised that there were no positive results from discussions with Respondents and were informed by the Ministry that there was no plan going forward relating to the slaughter of their cattle and they failed to do so,” Tshosa pointed out. The judge consequently found the explanation for the delay wanting, stating that the feedlotters’ explanation for the delay is therefore, not reasonable. He also said the applicants have been unable to account for the delay in filing the application.
“In my view, the applicants have failed to aver circumstances that render the application urgent.” The court also examined the applicants’ argument that they could not obtain substantial redress at a hearing in due course. Their founding affidavit had detailed the economic consequences of being unable to slaughter their cattle, including feeding costs, exhausted banking facilities, possible insolvency, losses to suppliers and possible retrenchments. The applicants had amongst other things, stated that they had incurred P27.8 million in costs to overfeed and maintain slaughter-ready cattle after restrictions prevented slaughter. But, the judge drew an important distinction between economic loss and irreparable harm. “Financial loss does not constitute irreparable harm. It can be compensated by an award of damages. In my view, the applicants have alternative available remedy in the form of damages in the event of loss of their cattle. I am therefore, not satisfied by the applicants’ submissions that they cannot be afforded a substantial redress at a hearing in due course,” Tshosa further held.
The court consequently found that the balance of convenience did not favour the applicants, whose interests it characterised as economic or commercial, while finding the balance in favour of the respondents and the broader public interest in controlling the FMD outbreak.