Gaborone High Court Judge, Chris Gabanagae has dismissed efforts by Attorney Generals (AG) efforts to use technicalities to end a legal tussle between government and Fresh Standard (Pty) Ltd, a company that has been accused by the State of ploughing dagga in the country.
Justice Gabanagae was making a ruling in a matter in which the company that was granted written exemption to produce hemp for industrial and medical purposes in October 18, 2018 by the then Minister of Agricultural Development and Food Security, Patrick Ralotsia had approached Court to review a decision of March 29, 2019 by the ministry’s Permanent Secretary to withdraw the initial exemption granted by Ralotsia. However, the AG acting on behalf of government, had, in its defence to the company’s review application raised preliminary points of law for the Court to dismiss the matter. The State had pleaded with the Court to thrown out the matter without hearing citing non-compliance with Court Rules by the Applicant. The State said the application should not be condoned by the Court as it was brought later than four months after the handing down of the decision or conclusion of the proceedings complained of. The AG also said Fresh Standard ought to have made an application to file its review application out of time.
“The Applicant has not made an application for leave to file its review application out of time. The Applicant has instead proceeded to file the actual review application, although not having obtained leave to do so,” argued the AG. However, Justice Gabanagae recently said that the AG’s preliminary points of law for the company to make an for leave to file its review application out of time is without merit, essentially ruling that the Court ought to hear the review application as it touches on a subject of national importance.
Gabanagae said the Fresh Standard had in its notice of motion sought leave to bring the application out of time in terms of the Rules of the Court which deals with condoning the late filing of the application.
“The case is of national importance in that it is the first case of its kind in Botswana involving the cultivation and processing of cannabis sativa and industrial hemp,” stated Gabanagae in his ruling.
He reasoned that the matter ought to be heard as the Applicant has a established that it has a reasonably arguable case which calls for the interpretation of the powers of both the Minister and his Permanent Secretary in relation to the granting of exemptions in terms of the Plant Protection Act as well as the revocation of such an exemption where they have been granted.
Justice Gabanagae stated that the company’s submission has set out a reasonable explanation for the delay in filing the review application. According to the Court papers, the company’s representative Benny De Beer received the letter purportedly cancelling the exemption on May 22, 2019 although the State says De Beer received the letter on unconfirmed date between the end of March and the first week of April.
He said the AG’s averment cannot be relied on to make a proper calculation of the four months delay. “In the present case, this court is dealing with a delay of 22 days.
The delay is not really bad. It is not a lengthy delay. Our courts have dealt with delays of several months,” said Gabanagae. According to the director of the company, Barend Daniel de Beer he had spent in court papers, he had he spent millions of Pula in establishing its business after receiving an exemption to grow, process and produce products from cannabis sativa and hemp dominant strands for medical and industrial purposes in the country.
However, he was shocked when on or about May 7, 2019 representatives of the Narcotics Squad of the Police arrived at the farm where I had planted its crop in green house tunnels. They uprooted the plants and removed them from the farm.
He added that several inquiries as to why the uprooting happened as they were operating lawfully but were later served a copy of a letter from the ministry dated March 29, 2019 signed by the PS, which accordingly was to withdraw the exemption.
It is de Beer’s contention that the communication about the withdrawal was illegal in that it was contrary to the empowering statute and unreasonable because the decision was made without affording him any form of hearing despite the serious effect that the decision had on his business.