Company gets nod to cultivate Cannabis
Withdrawal of the exemption is improper and unlawful - Justice Gabanagae
Fresh Standard ( Pty) Ltd has won a reprieve from the court to grow cannabis Sativa and hemp plants and to produce and process products from their dominant strains for industrial and medical purposes in Botswana.
This comes after High Court Judge Christopher Gabanagae ruled in favour of Fresh Standard ( Pty) Ltd and set aside a decision of the Permanent Secretary of the Ministry of Agriculture, alternatively the Minister of Agricultural Development and Food Security purportedly communicated in the letter dated 29 March 2019 to ‘ set aside earlier correspondences’ and in effect, to purport to withdraw the exemption granted by the Minister in terms of Section 28 of the Plant Protection Act.
Fresh Standard ( Pty) Ltd owned by Barend Daniel de Beer was granted the exemption by then Agriculture Minister Patrick Ralotsia, which was later in 2019 withdrawn by Permanent Secretary Jimmy Opelo.
The government withdrew the exemption certificate at the time when there was heated debate over the production of Cannabis which at the time was one of the opposition Umbrella for Democratic Change ( UDC)’ s core campaign subjects for job creation.
In April last year Justice Gabanagae directed the company to have filed its court papers, and later challenged the decision of the Ministry of Agricultural Development and Food Security to withdraw the exemption it had granted the company earlier.
The judge stated in his ruling last year that Fresh Standard has a reasonably arguable case. He said 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.
According to the background of the case, Fresh Standard was granted exemption in writing on the 18th of October 2018 by the Minister of Agricultural Development and Food Security in terms of Section 28 of the Plant Protection Act.
The exemption permitted Fresh Standard ( Pty) Ltd 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.
Fresh Standard says that following the granting of the exemption, it invested millions of Pula in establishing its business in Botswana with the full knowledge and blessing of the Minister, the Ministry, and its Permanent Secretary.
Justice Gabanagae has concurred with Fresh Standard in the current application, that the purported withdrawal of the exemption by the Permanent Secretary in terms of the letter dated the 29th of March 2019 and the decision to ‘ set aside earlier correspondences’ and whose effect was to purport to withdraw the exemption is improper and unlawful. He said it is thus liable to be reviewed and set aside.
“Having concluded that the Minister never withdrew the exemption, the question now is who could have done so? Could the Permanent Secretary withdraw the exemption? The answer is a big ‘ No’.
“The Permanent Secretary does not have the power or authority to withdraw the exemption. The letter of the 29th March 2019, purporting to withdraw the exemption could not and is not a valid withdrawal of the exemption.
“In any event, the Permanent Secretary never engaged with the Applicant prior to issuing his letter of the 29th March 2019 and never afforded the Applicant a hearing at all let alone a fair hearing,” explained Justice Gabanagae.
The judge stated that the evidence shows clearly and indisputably, that the minister granted the exemption to Fresh Standards in respect of the cultivation and processing of hemp and its products along the entire value chain.
“I take the view that the Minister made a candid, full and fair disclosure required of him and that same cannot be said about the Permanent Secretary.
“I have no doubt that the facts as presented by the Minister are true, correct and accurate in every respect. If that were not so, it is reasonable to expect that the Permanent Secretary would have commented or presented a counter narrative. He did not,” the Judge said.