23 Jan 2022

The High Court has ruled in favour of Fresh Standard (Pty) LTD and restored its exemption to cultivate cannabis sativa and hemp for industrial and medical purposes.

Delivering judgment in a matter between Fresh Standard (Pty) LTD and Attorney General, on Friday in Gaborone Justice Mokwadi Gabanagae set aside the decision of the permanent secretary in the Ministry of Agricultural

Development and Food Security to withdraw the exemption.

The permanent secretary had written a letter to the company, revoking the decision of the minister of the same ministry to exempt Fresh Standard (Pty) LTD to cultivate cannabis sativa and hemp for industrial and medical purposes.

In his ruling, Justice Gabanagae said the exemption letter from the minister was valid and lawful in terms of section 28 of the Plant Protection Act.

He said the letter written by the permanent secretary purporting to withdraw the exemption was not valid and could not be valid.

Justice Gabanagae said the minister never withdrew the exemption, adding that the permanent secretary could not do so.  “I reiterate that permanent secretary simply does not have the authority to withdraw the exemption,” he stated.

In any event, he said, the permanent secretary never engaged with the applicant prior to issuing the purported withdrawal letter, hence never afforded the applicant a fair hearing.

“I agree with the applicant’s submission that the purported withdrawal of the exemption by the permanent secretary in terms of the latter dated 29 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.

He said the applicant had made his case and was entitled to the relief sought.

The applicant, Fresh Standard (Pty) LTD represented by attorney Charles McErick had approached the High Court seeking to set aside the decision of the permanent secretary in the Ministry of Agricultural Development and Food Security, which purported to withdraw the decision by the minister to Fresh Standard to cultivate cannabis sativa and hemp for industrial and medical purposes.

The applicant wanted the court to declare the letter from the minister as valid and lawful exemption in terms of section 28 of the Plant Protection Act as well as ordering the respondent to pay the costs of the application.

However, court records had shown that Fresh standard was granted exemption in writing by the minister on October 18, 2018 and upon granting of the exemption, the company invested millions of pula in its business in Botswana, with full knowledge and blessing of the minister and the permanent secretary.

It then proceeded to develop land and construct greenhouse tunnel and other infrastructure necessary for the project.

On or about May 7, 2019, members of the narcotics squad of the Botswana Police came to the farm and removed all the plants the applicant had planted.

And upon enquiry from the ministry, the applicant received a letter from the ministry dated March 19, 2019 signed by the permanent secretary purporting to withdraw earlier correspondences, including that of 18 October, which gave them exemption.  ENDS