08 Nov 2022

The Court of Appeal has set aside a ruling by the Gaborone High Court which restored Fresh Standard exemption to cultivate cannabis sativa and industrial hemp.

The state had approached the Court of Appeal on grounds that the Gaborone High Court Judge, Justice Mokwadi Gabanagae erred when he ruled in favour of Fresh Standard, endorsing the company’s exemption to cultivate hemp.

The State further argued that the High Court had erred in finding it proper and competent for Fresh Standard to seek leave to file a review application out of time, simultaneously with the filing of the review application itself.

Regarding the issue relating to failure to seek leave by Fresh Standard before the filing of the review of the application, the state contention was that Fresh Standard should have sought leave to file the review out of the four months period prescribed for the filing of review applications.

The Appellant argued that the bringing of an application for judicial review after the four months period had elapsed was dependent upon the grant of leave.

The Respondent had argued that the appeal was filed out of time without first seeking to appeal out of time in terms of rule 19 of the Court of Appeal rules.

It was also its contention that the ruling that was appealed against was interlocutory and the Appellant should have sought leave of the court in terms of the High Court Appeal rules.

Delivering judgment, Judge President of the CoA, Justice Tebogo Tau declared the argument by the Respondent to be ill-conceived.

“Firstly, the decision which led to this appeal was delivered on January 21, 2022 and the appeal was noted on February 16, 2022, which is within six weeks of the delivery of the judgment, therefore the appeal was reckoned from the date of the final judgment and thus within time,” Justice Tau said.

She therefore said the issues raised by the Respondent had no merit and were accordingly dismissed since a combined application for both review and leave to file review out of time was made.

Given the circumstances, Justice Tau thus said the appeal succeeded with costs and set aside the High Court judgment of April 7, 2021.

Giving a background of the matter, Justice Tau said the Respondent had approached the then Minister of Agricultural Development and Food Security in August 2018, with a proposal to grow, produce and process products of Cannabis Sativa and Hemp dominant strains for medical and industrial purposes in Botswana.

She said following that proposal, the Permanent Secretary of the Ministry of Agriculture at the time communicated to the Respondent approval granting him exemption in terms of section 28 of the Plant and Protection Act to produce and process products of Cannabis Sativa.

The Respondent proceeded to obtain suitable land for the process of production, only for members of the Botswana Police Narcotics to remove all the plants that had been planted.

Fresh Standard approached the ministry as to the reason for the uprooting of the plants and disruption of its business.

The ministry would, in May 2019, give the respondent a letter revoking the exemption granted. ENDS