24 Oct 2022

The High Court erred in ruling in favour of Fresh Standard Pty Ltd, which ruling subsequently restored the company’s exemption to cultivate cannabis sativa and hemp for industrial and medicinal purposes, Attorney Keikanetswe Moesi for the Directorate of Public Prosecutions said before the Court of Appeal on Thursday.

He said the High Court had erred in finding that it was proper and competent for the respondent to seek leave to file a review application out of time simultaneously with the filling of the review application itself.

“It is submitted that the respondent’s attempt to file review application that incorporated condonation without first seeking leave was improper and the purported application was irregular and should have been struck out,” the state submitted.

As such he said the hybrid application flawed the High Court rules.

Defendant attorney, Mr Charles MacErick said the appeal should not be entertained, as it was filed 10 months after the decision was made.

“It is respectfully submitted that the current Appeal is bad in law,” he said.

He added that the appeal was not rightfully and legally before the court, hence the court does not have jurisdiction over it.

He said the test used against the High Court decision was wrong, saying it was not automatically irregular to have hybrid applications.

Following the condonation for late filing of the review application, the High Court went into the merits of the case and granted Fresh Standard exemption to cultivate cannabis sativa and hemp for industrial and medicinal purposes.

In doing so, the court set aside the decision of the permanent secretary in the then Ministry of Agricultural Development and Food Security, to withdraw the exemption, after he had written a letter to the company revoking the decision of the minister to exempt Fresh Standard.

According to the court records, Fresh Standard was granted exemption in writing by the Minister of Agricultural Development and Food Security on October 18, 2018 and subsequently invested millions of pula in its business.

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

On enquiry, 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 October 18, which gave the company exemption. 

The Court of Appeal judgment will be delivered on November 4. Ends