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LETLHOGILE MPUANG
The state has decided to appeal reinstatement of Fresh Standard’s exemption licence for cultivation and production of industrial hemp in Botswana, The Botswana Gazette has established.
Although the Office of the Attorney General said it was not in a position to speak on the developments, the legal representatives of Fresh Standard have confirmed that the state has launched its appeal before the Court of Appeal. The matter is expected to be heard at the July sitting of the CoA.
“The High Court judgement was delivered in February and the appeal was made somewhere around March,” said private attorney Charles McErick. “A date for the hearing has not been allocated, but we expect it to be sometime in July.”
McErick added that they have since filed all their requested responding affidavits.
The state is arguing a technicality in the Fresh Standard condonation and the setting aside of the applications of the decision of the Permanent Secretary of the Ministry of Agriculture. Alternatively, the state will seek to have Minister of Agricultural Development and Food Security to withdraw their exemption license.
The application was filed on 14 October 2019 and High Court judge Christopher Gabanagae ruled in favour of Fresh Standard. The state believes that the High Court erred by deliberating over the matter as it was filed five months later and not in terms of Order 61 Rule 8 of High Court rules.
In his judgement in the Fresh Standard’s application for reinstatement of its exemption licence on 24 January 2022, Justice Gabanagae said the Permanent Secretary (PS) had no right to revoke the exemption letter and that only the minister had the power to do so.
In early May 2019, the then Permanent Secretary at the Ministry of Agriculture, Jimmy Opelo, withdraw Fresh Standard exemption licence without notice. This subsequently saw Botswana Police officers, acting on a tip-off that there was an ongoing dagga cultivation in the area, invading and raiding 32 industrial hemp plants at Kanngwe Farms that leased to Fresh Standard by former agriculture minister Patrick Ralotsia.
The judge said on top of the PS simply not having the 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 Fresh Standard 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,” Justice Gabanagae said.
He noted that the minister at the time had said he was exercising his powers when he give an exemption letter, thus constituting a valid and lawful exemption. The judge said the minister acted within the requirements of the law throughout and accorded due respect to the court and the law itself by making a candid disclosure without taking refuge in silence or seeking to cover up the reasoning behind the decisions that he took.
Meanwhile, Botswana remains one of few countries in the southern African region to prohibit cultivation and production of industrial hemp. The Kingdom of eSwatini, Lesotho, Malawi, South Africa, Zambia and Zimbabwe are reported to have legalised hemp cultivation.