Govt. loses first round in industrial hemp cultivation case

Justitce Gabanagae rules in favour of Fresh Standard for late filing of papers

Fresh Standard ( Pty) Ltd has won the first round of its legal battle against government on the exemption to cultivate and process cannabis and industrial hemp.

High court Judge Mokwadi Christopher Gabanagae ruled in favour of the company to have filed its court papers later challenging the decision of the Ministry of Agricultural Development and Food Security to withdraw the exemption it earlier granted the company.

The judge stated in his ruling that the Applicant ( Fresh Standard) has established that it has a reasonably arguable case. He said that the case is also 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.

“It 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. In the circumstances condonation is granted for the late filing of the review application,” Judge Gabanagae said.

The company filed the application against the Ministry of Agricultural Development and Food Security, the Minister of Agricultural Development and Food Security and the Permanent Secretary of the Ministry of Agriculture. They pointed out that according to the background of the case the Applicant was granted exemption in writing by the Minister of Agricultural Development and Food Security in terms of Section 28 of the Plant Protection Act.

The exemption permitted Fresh Standard to cultivate and grow Cannabis Sativa and Hemp plants, produce and process products from Cannabis Sativa and Hemp dominant strains for industrial and medical purposes in Botswana.

“The exemption was granted on 18th October 2018. The Applicant avers that, consequent upon the granting of the exemption, it invested millions of Pula in establishing its business in Botswana and that this was with the full knowledge and blessing of the Minister, the Ministry of Agriculture and its Permanent Secretary.

“The Applicant proceeded to obtain suitable land for the purposes of cultivating and growing Cannabis Sativa and Hemp. The Applicant developed the land and constructed greenhouse tunnels and other infrastructure as was necessary to operate its business,” the judge said.

On or about the 7th May 2019, members of the Narcotics Squad of the Botswana Police came to the farm and removed all the plants the Applicant had planted.

The Applicant then inquired with the Ministry of Agriculture and other relevant authorities as to the reason for the removal of the plants and disruption of its business.

Judge Gabanagae said that on 22nd May 2019, the Applicant received a letter from the Ministry dated 29th March 2019, signed by the Permanent Secretary in the Ministry of Agriculture.

“The letter purported to withdraw, among other things, the exemption granted to the Applicant on 18th October 2018. The Applicant avers that the letter of the 29th March 2019 was only served on the Applicant on the 22nd May 2019.

“The letter was received whilst the Applicant had, following the removal of its plants and disruption of its operations on 7th May 2019 by the Narcotic Squad of the Botswana Police, commenced inquiries and engagements on the disruption,” Gabanagae pointed out. He indicated that on the 11th June 2019, the Applicant issued and served a letter on the Minister, addressed to his Permanent Secretary, challenging the purported withdrawal or cancellation of the exemption granted to the Applicant.

The Applicant demanded the Minister to rescind and vacate the purported cancellation and accordingly reinstate the exemption at the peril of legal proceedings if that was not done within seven days of the date of the letter from the Applicant’s attorneys.

The judge said upon receipt of the letter, the Permanent Secretary requested the Applicant for a meeting to address the issue. The meeting was scheduled for 21st June 2019. The meeting took place with the Ministry represented by its attorney Thamsanqa Silitshena. The judge stated that the Applicant avers that Silitshena clarified the contents of the letter of the 29th March 2019 and indicated that the letter had not, as the Applicant understood it, cancelled or withdrew the exemption of the 18th October 2019.

“In this case, the Applicant throughout was in constant touch and engagement with the Ministry and participated in meetings intended to resolve the matter and obviate the need for any protracted litigation.

“The Ministry continued to engage with the Applicant and proffered an explanation for its letter of the 29th March 2019. The explanation caused the Applicant to await further communication and direction as promised and undertaken by the Ministry”.

Gabanagae explained that in the course of such engagements, the applicant was asked not to litigate as the understanding and assurances from the Ministry were that there was no dispute warranting such cause of action as the exemption had neither been withdrawn nor cancelled. “I agree with the Applicant’s submission that it has set out a reasonable explanation for the delay of 22 days. The Applicant argued that it has reasonable prospects of success in its application.

“It says it has set out all the facts grounding its review application and placed the court in a position to directly engage with the facts and assess the prospects of success of the review application,” Judge Gabanagae said.