The Gauteng High Court, Pretoria, has granted an order that Foot-and-Mouth Disease (FMD) vaccines may be procured and administered privately, without state veterinary involvement.
The Minister of Agriculture was also interdicted from interfering in private commercial relations of those who lawfully import FMD vaccines into South Africa.
The judgment, issued late on Monday by Judge Corrie van der Westhuizen, is an interim order, pending a review application to be brought by Sakeliga, SAAI, and the Free State Agriculture against the government’s prohibition of private FMD vaccine procurement and administration policy.
But for now, owners and managers of cloven-hooved livestock may independently procure and administer lawfully obtained FMD vaccines.
Judge Van der Westhuizen found that the Minister of Agriculture, John Steenhuisen, his director-general, and the director of animal health had “vehemently opposed” the application, yet “failed to indicate any substantive defence”, and “engineered delays in having the matter heard and adjudicated upon”.
The judge said their conduct “calls for some sanction from the court”. Describing the Minister’s Section 10 scheme as “vexed”, and the court found that it did not “provide for any controlled purpose or for the improvement of animal health”.
Sakeliga said thanks to the order, combating FMD with vaccination is now possible for both the private sector and the state simultaneously, rather than only on the State.
“Farmers, feedlots, dairy operations, and related agri-businesses now have a court-protected route to procure approved FMD vaccines from lawful importers, manufacturers, or their agents. No participation in the State’s Section 10 scheme is required,” it said.
The order further interdicts Steenhuisen from interfering in the commercial relations of those who lawfully import FMD vaccines and their international suppliers.
Existing measures pertaining to the movement of livestock and the reporting of suspected FMD incidents are left undisturbed, and the State retains its discretion to allocate vaccine that it has itself procured.
The State may avail FMD vaccine to the private sector for private administration, but is not obliged to do so, and “nothing in this order deprives any owner/manager of livestock from seeking assistance from the State or a private veterinarian,” the judge ruled.
Sakeliga, meanwhile, pointed out that no permission from the minister or other State officials is required for private FMD vaccination efforts, neither under the flawed Section 10 scheme nor otherwise.
Judge Van der Westhuizen rejected the State’s framing of private vaccination as something that would obstruct government efforts. He held that “interim relief would not impact negatively upon the (State parties) exercising their obligations in curtailing the FMD” but “would assist them in the fight against FMD”.
“The apprehension of irreparable harm follows where the FMD is spreading rapidly outside of the proclaimed control areas. In my view, the applicants have shown that the balance of convenience clearly lies with them.”
He added that the interim order will not impact negatively on the department’s exercising of its obligations in curtailing FMD.
In deciding on costs, the court noted the engineering of delays and the lack of substantive defence by the respondents. Judge Van der Westhuizen, in slapping the minister and his department with the highest cost scale in terms of the court rules, remarked: “Such conduct calls for some sanction from the court.”
In the wake of the minister asking for two postponements during the hearing, counsel for the applicants told the court “Rome is burning in the agricultural sector”.
The delays in the urgent application were to give the minister time to promulgate and publish the intended animal health scheme relating to FMD.
Zelda Venter
iol.co.za
