Prevail against gov’t
Subsequently, it was the applicants’ case that while waiting for the last course of vaccination they were then told, to their shock and dismay, that the last course of vaccination would not be done and that all the animals in Zone 6, would be slaughtered to depopulate the area. The applicants said their cattle were then seized by the Department of Veterinary Services and they were then made to sign affidavits signifying their assent to their dispossession of their livestock.
Regarding the compensation amount to be paid, they maintained that the amount of P1, 700 was never agreed on nor were they ever consulted on it and according to them, the amount was inadequate and far below the market prices of around P4, 000 prevailing at the time.
In conclusion, it was the applicants’ case that the decision to slaughter their cattle and on the compensation amounts were irrational as to warrant being reviewed and set side.
They sought the following reliefs
Reviewing and setting aside the respondent’s decision taken on third or about August 2011, to carry out a wholesale slaughter of cattle uninfected with Foot and Mouth Disease in and around Tonota and east of the A1, Gaborone-Francistown Road, more specifically in and around Mmabobowe, Tshetihae and the surrounding areas
Declaring that the decision to carry out the wholesale slaughter of the applicants’ cattle and the manner in which it is being enforced and implemented by the respondent amounts to unlawful expropriation and is unconstitutional.
Declaring that the decision by the respondent to pay an amount of P 1, 700 per beast to the applicants for their slaughtered cattle, the conditions attached to said payment and the entire manner of the determination of compensation to the applicants is unconstitutional and violates, among others, Section 3, 4, and 8 of the Constitution of Botswana
Declaring the whole approach and measures taken by the respondent to the treatment and containment of Foot and Mouth in Zone 6 to be unreasonable, irrational, overboard, disproportionate in impact, and mala fide.
Declaring that the respondent in its handling of the Foot and Mouth Disease in 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 vires the provisions of the Diseases of Animals Act and therefore unlawful.
Ordering such further and alternative relief as the court deems meet and appropriate
Directing that the respondent pay the costs of this application on the scale as between attorney and client.
Respondent’s case
The respondent denied that the decision to slaughter the applicants’ cattle was unlawful or irrational and stated as follows,
That FMD is a highly contagious and communicable disease which can lead to horrendous consequences for the country and the nation at large and jeopardise the country’s beef and allied products and its hard earned reputation as a leading beef exporting country.
That Botswana has a large animal population which finds its home in communal grazing areas and openly shared environments which greatly pre-dispose them to Foot and Mouth Disease infection
That there was a duty to notify the international community once the disease was discovered.
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. 27.5 That the compensation amount of P1, 700 was adequate and that the applicants were trying to hold the nation at ransom.
That in terms of the Diseases of Animals Act, the decision of the Director of Veterinary Services could not be challenged. The above in a nutshell, represents the parties’ respective positions. I now proceed to consider the merits of the respective submissions.
The facts of the Case
The background of the case is that sometime in early 2011, Botswana encountered an outbreak of the FMD and on or around July 8, 2011, the government, through the Department
of Veterinary Services published an order declaring the whole of Zone 6 and 7 as infected with FMD.
The court papers indicated that the order published under Statutory Instrument No. 55 of 2011 also declared that movement of cloven hoofed animals and their products into and out of Zone 6 and 7 was prohibited except under and in accordance with a permit issued by a veterinary officer.
By the time the Statutory Instrument was published in July 2011, Cabinet had a month earlier, that is, on the 6th June, 2011, already approved the vaccination, slaughter and burial of all cattle in Zone 6 and a cash compensation of P1, 700 per beast.
The applicants, whose farms were located within the Zone 6 area, had their cattle seized and slaughtered and it was the decision to slaughter their cattle that has brought them to court.
Appearing for the applicants is Phemelo Mosweunyane whilst Senior Counsel Diba Diba appeared for the State.