Hemp farmer, Barend Daniel de Beer is relieved that after a long court battle he will be able to resume production of hemp despite saying he lost millions along the way.
The farmer had gone into a legal battle with government after saying he invested millions of pula into the project based on an exemption granted by former agriculture minister, Patrick Ralotsia, only for the police to raid and uproot his fledgling crops suspecting that the plants were cannabis commonly known as ‘motokwane’. The judge on his reasons said the permanent secretary (PS) had no right to revoke the exemption letter that only the Minister had the power to do so. “The PS does not have the power or authority to withdraw the exemption.
The letter of March 29, 2019 purporting to withdraw the exemption could not and is not a valid withdrawal of the exemption,” the judge ruled. Justice Gabanagae explained that on top of the PS simply not having that authority to withdraw the exemption, he also never engaged the farmer prior to issuing the letter and that he was never accorded a hearing at all let alone a fair one. He pointed out that Daniel de Beer made out his case therefore the withdrawal was improper and unlawful.
“The right to a fair hearing cannot be avoided or dispensed with because it is felt that the person otherwise entitled to it would have little or nothing to urge in his favour or that it would not affect the decision anyway,” the judge said.
The judge explained that the minister at the time said that he exercised his powers to give exemption letter thus it constitutes a valid and lawful exemption. He said the minister acted within the requirement of the law throughout and accorded due respect to the court and by law itself by making candid disclosure without taking refuge in silence or seeking to cover up the reasoning behind the decisions he took. “The evidence shows clearly and indisputably that the minister granted the exemption to the farmer in respect of the cultivation and processing of hemp and its products along the entire value chain,” he said. Meanwhile Daniel de Beer, who fought for the revocation to be reviewed, said in October 2018 he received the exemption to grow, process and produce products from cannabis sativa and hemp dominant strands for medical and industrial purposes in the country. He said following the granting of the exemption, he spent millions of pula in establishing the business, but his farm was on or about May 7, 2019 raided by officers of the Narcotics Squad of the Botswana Police Service.
Daniel de Beer said the move by the government forced him to make an urgent enquiry as to why the uprooting happened as the company was operating lawfully before he got to know about the withdrawal of the exemption. It was his 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.