Africa-Press – Botswana. Farmers are smiling all the way to the bank after the High Court ordered the government to pay them millions of Pula – the exact figure isn’t known yet.
This follows the latter’s decision to slaughter thousands of cattle among them those which were not infected with the Foot and Mouth Disease (FMD).
Last week High Court Judge, Justice Zein Kebonang, ruled in favour of Zone 6 farmers who interdicted government after it took the decision to compensate farmers P1, 700 per beast after their cattle were slaughtered due to FMD back in 2011.
According to the judgment, the case was first registered in 2011 and has since remained open until now. Describing the case “as perhaps the longest case in the history of Botswana.”
Kebonang noted that the case reached his court after it had been determined by Nyamadzabo in 2017.
“Nyamadzabo’s decision was subsequently vacated by the Court of Appeal which then directed that it be heard by a different judge,” said Kebonang.
The case emanates from farmers’ decision to approach the High Court to set aside government’s decision taken around August 2011 to carry out a wholesale slaughter of their cattle uninfected with Foot and Mouth Disease in and around Tonota and east of A1, Gaborone-Francistown Road, more especially in and around Mmabobowe, Tshetlhae and the surrounding areas.
They also asked the Court to Declare the decision by the government to pay an amount of P1 700 per beast to the Applicants for their slaughtered cattle and the manner in which it is being enforced and implemented by the government amounts to unlawful expropriation and is unconstitutional.
He ruled that the decision by the respondent to pay an amount of P1 700 per beast to farmers for their slaughtered cattle, the condition attached to said payment and the entire manner of the determination of compensation to farmers as unconstitutional and violates, among others Section 3, 4, and 8 of the Constitution of Botswana.
The farmers wanted the court to declare the whole approach and measures taken by the government to the treatment and containment of Foot and Mouth in Zone 6 to be unreasonable, irrational, overboard, disappropriate in impact and mala fide.
They also wanted the court to declare that the government in its handling of the Foot and Mouth Disease on 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 A1, Gaborone-Francistown Road, acted ultra virers the provisions of the Disease and Animals Act and therefore unlawful.
For its part, the government submitted that the review application must fall because of the none joinder of the Director of Veterinary Services and the Ministry of Agriculture to the proceedings while substantively, it denies that the decision to slaughter the farmers’ livestock was irrational or unlawful.
“It is trite that in terms of rules of the High Court, a person whose decision is being challenged must be joined in those proceedings. Both the Ministry of Agriculture and the Director of Veterinary Services of would be parties as they have a substantial interest in this matter,” said Kebonang.
He found that the farmers at one stage had had notified the Attorney General as the legal representative of the Government of their intention to bring legal proceedings against the Ministry of Agriculture. He said the Attorney General is the legal advisor to the Government.
Government ministries and departments cannot be sued except through the Attorney General. For this reason, the objection to the none joinder of the Ministry cannot succeed.
Turning to the failure to cite the Director of Veterinary Services, Kebonang said the answering affidavit file by the government in opposing the review application was deposed to by the Director of Veterinary Services. In this regard, he has been able to show why his decision should not be reviewed corrected or set aside as required by the provisions of or Order 61 of the rules of the High Court.
The judge said no application was filed by the government””” to set aside the review application on the basis of a failure to cite either the Director of Veterinary Services or the Ministry of Agriculture.
“In the absence of an Order 33 application to set aside the review application, the point about the failure to cite the Director of Veterinary Services and the Ministry of Agriculture has not been properly taken,” said Kebonang.
In any case, there has been no prejudice to the government as a result of the farmers’ failure to specifically cite Attorney General in these proceedings, with the Director disposing to various court documents filed on his behalf, said the judge.
The farmers argued that the compensation amount to be paid of P1700 was never agreed on nor were they ever consulted on it. According to them, the amount was inadequate and far below the market prices of around P4000 prevailing at the time.
In summary, it was the farmers’ case that the decision to slaughter their cattle and on the compensation amounts were irrational as to warrant being reviewed.
The government denied that its decision was to slaughter the cattle and on the compensation amounts were irrational as to warrant being reviewed and set aside.
The government argued that FMD is a highly contagious and communicable disease which can lead to horrendous consequences for the country and the nation at large and jeopardises the country’s beef and allied products and its hard earned reputation as a leading beef exporting country.
Government also argued 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.
In his judgement, Kebonang stated that that the amount of compensation for any loss or dispossession of property must be a fair amount. A fair amount, the judge said, in the context of the present case would be the fair market value of the animals destroyed, which would be simply be the price that a willing buyer would pay a willing seller in the open market.
“As between the parties in the instant case, it is common cause that both infected and uninfected animals were subjected to the same or uniform valuation of BW1700.00 per beast. There is no explanation from the Respondent why this was so,” said the judge.
According to Kebonang; “It is my view that valuation determined by the Government was irrational in that it placed the same value of for infected and uninfected animals. Common sense dictates that the valuations should have been different,” said Kebonang.
The judge said the amount of P4000.00 as sought by the farmers cannot be appropriate indicator of the fair market value because it is simply too remote in time when one has regard to the fact that the year now is 2023. For this reason, the question of what should constitute fair market value is referred to the Registrar for determination.”
sundaystandard
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