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KANDU AND OTHERS v. DIRECTOR OF VETERINARY SERVICES AND ANOTHER
1996 BLR 618 (HC)
Citation: 1996 BLR 618 (HC)
Court: High Court, Francistown
Case No:
Judge: Gyeke-Dako J.
Judgement Date: June 28, 1996
Counsel: Lamont, with him P.L. Gabaake, for the applicants. I.S. Kirby, with him L.Z. Ngcongco
for the respondents.
Flynote
Practice and proceedings - Proceedings against State - Interdict - Interlocutory application - Relief
by way of interdict or specific performance asked against public officer - Such relief not available
under Act - Declaration of rights asked as alternative - Whether interim declaration could be made
as alternative to interim interdict or specific performance - State C Proceedings Act (Cap. 10:01),
section 9.
Agriculture - Animal diseases - Powers of Minister - Slaughter of cattle - Outbreak of cattle lung
disease - Minister ordered all cattle in disease affected area to be slaughtered - Whether Minister's
powers under regulation 24 properly exercised - Diseases of Animal Act (Cap. 37:01). D
Agriculture - Animal diseases - Powers of Ministers - Slaughter of cattle - Outbreak of cattle lung
disease - Minister ordered all cattle in disease affected area to be slaughtered - Whether Minister's
decision and mode of its execution could be reasonably justified in democratic society under
Constitution - Constitution of Botswana, s.5.
Headnote
Two applicants applied as a matter of urgency for themselves and on behalf of 198 other cattle
farmers for E interim orders against the respondents, pending the final determination of an action
to be instituted. The relief sought was, inter alia, an interdict restraining the respondents from
executing the decision by the first respondent to annihilate and destroy all cattle within the
Ngamiland District. It was determined at the hearing that the first applicant should stand as the only
applicant in the application. The interlocutory application was brought under the F State
Proceedings (Civil Actions by or against Government or Public Officers) Act (Cap. 10:01) and the
interim relief sought was in the nature of a medley of interdict and specific performance. Section 9
of the Act provided that relief by way of interdict or specific performance against the Government
could not be granted, but in lieu thereof the court could make an order declaratory of the rights of
the parties. It further provided that an interdict G would not be granted, or an order made, against a
public officer if the effect thereof would be to give any relief against the Government which could
not have been obtained in an action against the Government. Both counsel conceded that the court
therefore could not grant relief by way of either interim interdict or specific performance as asked
for in the notice of motion. The court held that this would have settled the matter, but for the
contention H by applicant's counsel that in the light of section 9 of the Act, the applicant would be
asking for the alternative form of relief, namely an interim declaration. No such relief had been
sought in the alternative, nor was any further relief as the court should deem meet sought in the
notice of motion. The court held that the reference to making a declaration of rights in section 9 of
the State Proceedings Act meant a declaration at the end of the trial of the main cause, as distinct
from a declaration on some interlocutory application. Therefore, just as an A interim interdict
could not be granted against the respondents, even if all the aspects of a prima facie case were made
out, an interim declaration could not be made as an alternative. The court had no jurisdiction under
section 9 of the Act to make something in the nature of an interim declaration of rights which would
have no legal effect, and which, might be the very opposite of the final declaration of right made at
the end of the action contemplated. B
Due to the importance of the matter and the urgency attached thereto, coupled with the allegations
made against the respondents for having acted ultra vires their statutory powers and with mala fides,
the court allowed arguments to proceed on the merits of the application. It appeared that there had
been an outbreak of deadly cattle lung disease, known to be airborne. The first respondent, upon
learning of the outbreak, travelled to the C area and put immediate preventive and remedial
measures in place, by declaring the area as a Diseases of Animals Infected Area, and prohibiting
movement of cattle into or out of the specified area without a requisite permit. The court remarked
that it appeared from the reading of the Diseases of Animals Act and the regulations made
thereunder, that the ultimate responsibility for ensuring the efficacious implementation of the Act
rested with the Minister of Agriculture who, on account of collective responsibility, was accountable
to the Government D via Cabinet. The first respondent prepared a Cabinet memorandum for
presentation by the Minister for approval by the Cabinet, putting forward three options and the costs
thereof. Cabinet decided that all cattle in the area be vaccinated and tested, and those testing positive
to be slaughtered and compensation paid. The first respondent was then directed to carry out the
Government directive. In implementing the decision, kgotla meetings were held E explaining to
farmers the rationale behind the Government's decision. The disease assumed epidemic proportions
and to safeguard the future of the cattle industry, the Minister submitted another memorandum to
Cabinet and Cabinet approved the slaughter of all cattle in Ngamiland. Implementation of the
decision as set out by the Minister had to be consonant with the powers conferred on him under the
Diseases of Animals Act (Cap. F 37:01) and regulations made thereunder. It was conceded by both
counsel that upon the facts as deposed to by the respondents, it was beyond dispute that it was the
exercise of the Minister's powers under the Act which was called in question and that all allegations
of mala fides and excess of jurisdiction therefore had to be determined within the parameters of the
powers conferred on the Minister by the Act and regulations made thereunder, and G not those
conferred on the first respondent. There was no dispute about the fact that the Minister's act towards
the eradication of cattle lung disease was founded under regulation 24 of the Diseases of Stock
Regulations (Cap. 37:01) made under the Diseases of Animals Act. There was equally no dispute
that cattle lung disease was one of the diseases specified in regulation 3 of the enactment. Most of
the points raised on behalf of the applicant in support of the allegation of the first respondent having
acted ultra vires the powers conferred on him under the H Act and regulations made thereunder,
had to be abandoned when it became clear in the course of the hearing that the first respondent was
only executing such of the Minister's powers as delegated to him. The issue before the court was
therefore whether the Minister had acted ultra vires the powers conferred on him under regulation
24(1), especially subregulation (b) and an interpretation of this subregulation was required. The
subsection made it lawful for the Minister to cause to be A destroyed any stock that had been in
contact with any stock infected with disease or had been in any infected area or place. This
application was brought on the erroneous impression that the slaughter of cattle in Ngamiland was
on the orders of the first respondent. With the correction of this impression, all the arguments
directed at the conduct of the first respondent in the whole scenario had to fall away. What was left
to decide was whether the Minister's decision and mode of its execution could be reasonably
justified in a democratic society as required B under section 5 of the Constitution.
Held: (1) Upon reading the legislation in its entirety, and applying the ut res magis veleat quam
pereat canon of interpretation to the facts of the case, the Minister's powers under regulation 24,
wide as they were, extended to all cattle in the affected area or place, and there was no breach of the
ultra vires doctrine in the exercise of such powers. C
(2) The applicant's allegations of both ultra vires and mala fides were baseless and without
foundation. The Minister would have been within his rights to proceed with the implementation of
his decision without prior consultation with anyone and could have had whomsoever obstructed or
hindered him in the discharge of his powers or duties, prosecuted under regulation 72. So far as the
balance of convenience was concerned, the matter was clear. The uncontradicted averments
contained in the respondents' affidavits demanded that the D programme for the eradication of the
epidemic should not be halted. The applicant had not shown any cause for grant of the interim relief
sought.
Case Information
Cases referred to:
(1) L.F. Boshoff Investments (Pty.) Ltd. v. Cape Town Municipality; Cape Town Municipality v.
L.F. Boshoff Investments (Pty.) Ltd 1969 (2) S.A. 256 (C) E
(2) Olympic Passenger Services (Pty.) Ltd. v. Ramlagan 1957 (2) S.A. 382 (D)
(3) National Union of Textile Workers and Others v. Stag Packings (Pty.) Ltd. and Another 1981
(4) S.A. 932 F
(4) R. v. Peters (1886) 16 Q.B.D. 636
(5) Nairne v. Stephen Smith and Co. Ltd. [1948] 1 K.B. 17
(6) Cozens v. Brutus [1973] A.C. 854
(7) Seay v. Eastwood [1976] 1 W.L.R. 1117
(8) Attorney-General v. Prince Augustus of Hanover [1957] A.C. 436
(9) Noke v. Doncaster Almalgamated Collieries Ltd. [1940] A.C. 1014 G
(10) Bourne v. Norwich Crematorium Ltd. [1967] 1 W.L.R. 691
(11) Magor and St. Mellons Rural District Council v. Newport Corporation [1950] 2 All E.R. 1226
(12) Seaford Court Estates Ltd. v. Asher [1949] 2 K.B. 481
(13) Momoniat v. Minister of Law and Order and Others; Naidoo and Others v. Minister of Law
and Order and Others 1986 (2) S.A. 264 (W) H
APPLICATION for an interdict to prevent the respondents from destroying livestock. The facts are
sufficiently stated in the judgment.
Lamont, with him P.L. Gabaake, for the applicants.
I.S. Kirby, with him L.Z. Ngcongco for the respondents.
Judgement
Gyeke-Dako J.: A
By notice of motion dated 9 May 1996 and filed in the Francistown High Court Registry on 10 May
1996, the two applicants, Kaarungana Kunda and Nicky Masheko (hereinafter referred to
respectively as the first and second applicants), as a matter of urgency, applied for themselves and
on behalf of about 198 others (presumably cattle owners in the Ngamiland district of Botswana), for
interim orders against the director of veterinary services B (undoubtedly, of the Department of
Veterinary Services of the Government of Botswana and as such, a public officer) and the AttorneyGeneral, in his representative or nominal capacity as provided for under section 3(1) of the State
Proceedings (Civil Actions by or against Government or Public Officers) Act (Cap. 10:01). The
order is sought pending the final determination of an action to be instituted. The relief sought for is,
and I quote from the C motion paper:
"(a) That this matter should be entertained by this Honourable Court as a matter of urgency.
(b) Interdicting and restraining the respondents, pending final determination of an action to be
brought by the applicants against the respondents from: D
(i) Executing the decision of the Director of Veterinary Services to annihilate and destroy all cattle
within the Ngamiland District.
(c) Interdicting and restraining the respondents from destroying, taking steps to destroy any animals
prior to the relevant steps having been taken to ascertain whether or not the particular animal to be
destroyed has the disease to test E and the results of the test to be known.
(d) Interdicting and restraining the respondents form preventing the applicants from dealing in such
animals as are not infected as they deem fit.
(e) Directing the Veterinary Officer or person authorised by the Director paramount to the
provisions of the Diseases of Animals Act (Cap. 37:01) section 51 to perform the necessary
examination or state in order to ascertain precisely F which animals are infected with the disease
and to issue permits in respect of such animals as are not infected to enable the applicants to deal in
such animals.
(f) Directing that the aforesaid order act as an interim interdict and order with immediate effect. G
(g) Directing the respondents to pay the costs of this application."
(The emphasis is mine).
Included in the motion paper also is the statutory notice of one month previous to the institution of
the action contemplated against the respondents as required under section 4 of the State Proceedings
Act mentioned H supra. The relief to be sought against the respondents, as defendants in the action
contemplated, is as follows:
"1. An order reviewing the decision of the Director of the order published in the Gazette detailing
the area to be an area infected area as regards the disease named in the order. 2. An order reviewing
the decision of the Director that all animals within the said area be slaughtered. A
3. An order interdicting and restraining the respondents from slaughtering any animals within the
said area other than animals which have been tested for the disease and the test be made known and
shown that the particular animal has the particular disease.
4. An order declaring that the acts performed by the respondents in so far as they relate to a decision
to slaughter all B as opposed to only infected animals within the area is taken in bad faith.
5. An order that the compensation tendered by the respondents is insufficient and that the provisions
of the Act are not being followed in that, slaughtered animals are not being tested for the disease and
accordingly unaffected animal are not being identified."(The emphasis is mine.) C
The last three paragraphs of the motion paper contain the following notices to the respondents:
"1. That the affidavits of Kaarungana (1st Applicant) and Nicky Masheko (2nd Applicant) shall be
used in support hereof D and that the respondents may answer the affidavit.
2. That the applicant has appointed the offices of P. L. Gabaake and Associates P/Bag 256, Maun as
the address at which they shall accept all services in the matter.
3. That the application shall be made on Tuesday 14 May, at Francistown High Court at 9.30 am. or
so soon hereafter E as counsel may be heard."
The motion paper with an annexed founding affidavit sworn to by the first applicant (Kaarungana
Kandu): an affidavit of the second applicant (Nicky Masheko) purporting to subscribe to the
contents of the first applicant's F founding affidavit, together with a schedule (marked A)
containing about 198 signatures, were served on the respondents. Whereupon, the second respondent
(The Attorney-General) gave notice of intention to oppose and indicated in the notice of opposition
that the annexed affidavits of M. V. Raborokgwe (first respondent) and R. W. Blackbeard (the
Minister of Agriculture) will be used in support of the opposition to the order sought on
the G application.
It could be discerned from both the order sought in this application and the relief to be sought, in
futuro, in the main action, that though predominantly in the nature of an interdict, they are however,
a medley of an interdict and specific performance.
The application was beset with initial difficulties. The hearing commenced with arguments
regarding the H sufficiency of the power of attorney produced from the Bar by Mr. Gabaake, the
applicant's attorney, and the locus standi of the second applicant. I do not think it necessary to go in
detail into counsel's submissions on the issue. It is sufficient to say that as a result of concessions
made by Advocate Lamont, leading counsel for the applicants, to the points raised by Mr. Kirby, the
Deputy Attorney-General, who appeared with Mr. Ngcongco, Principal State Counsel for the
respondents, the first applicant (Kaarungana A Kandu) stands as the only applicant in this
application.
Bearing in mind that this interlocutory application is brought under the State Proceedings (Civil
Actions by or against Government or Public Officers) Act (Cap. 10:01) mentioned supra, and having
regard to the fact that the interim relief sought is in the nature of a medley of interdict and specific
performance, I asked for arguments on B whether in the teeth of the provisions of section 9 of the
Act, supra, this court has jurisdiction to grant an interim interdict (or an interlocutory injunction as it
is known under the English law), or, an interim order for specific performance against the
respondents. Both counsel, just as I am of the opinion, conceded that I cannot grant relief by way
of either interim interdict or specific performance asked for in the notice of motion. This
answer C would have settled the fate of the motion currently before me, but for Advocate Lamont's
ipse dixit, from the Bar, that in the light of the provisions of section 9 of the Act (ibid), the applicant
would be asking for the alternative form of relief, namely, an interim declaration, instead of an
interdict and/or specific performance. It is to be noted that no such relief was sought as an
alternative; nor was any further relief as the court shall deem meet sought, in the D notice of
motion. Leave was also not sought to amend the notice of motion. Be that as it may, due to the
importance and urgency attached to the matter, coupled with allegations made against the
respondents for having acted ultra vires their statutory powers and with mala fides, I allowed
arguments to proceed on the merits of the application. I shall deal with this aspect of the matter at a
later stage. E
I must say at once that this court has no jurisdiction to make a kind of interim declaration in
substitution for an interim interdict or specific performance which clearly it has no power to grant.
Section 9 of the State Proceedings Act under consideration states:
"9(1) Nothing in this Act shall be construed as authorising the grant of relief by way of interdict or
specific performance F against the Government, but in lieu thereof the court may make an order
declaratory of the rights of the parties.
(2) The court shall not in any action grant any interdict or make any order against a public officer if
the effect of granting the interdict or making the order would be to give any relief against the
Government which could not have been G obtained in any action against the Government."
Except perhaps, in phraseology, our section 9 above is similar, especially, in spirit and intent to the
proviso to section 21 of the English Crown Proceedings Act, 1947 which provides that: H
"(1) In any proceedings by or against the Crown the court shall, subject to the provisions of the Act,
have power to make all such orders as it has power to make in proceedings between subjects, and
otherwise to give such appropriate relief as the case may require:
Provided that: (a) where in any proceedings against the Crown any such relief is sought as might in
proceedings between A subjects be granted by way of injunction or specific performance, the court
shall not grant an injunction or make an order for specific performance, but may in lieu thereof
make an order declaratory of the rights of the parties. . .
(2) The court shall not in any civil proceedings grant any injunction or make any order against an
officer of the Crown if B the effect of granting the injunction or making the order would be to give
any relief against the Crown which could not have been obtained in proceedings against the Crown."
The position however, appears to be different in South Africa. This is borne out by the provisions of
section 35 of C Act 62 of 1955 (South Africa) which deal with interim interdicts against the
Government and other entities specified therein. The section reads:
"No court shall issue any rule nisi operating as an interim interdict against the Government of the
Republic, including South African Railways and Harbours Administration or the Administrator of
any province, or any Minister, Administrator or other D officer of the Government or
Administration in his capacity as such unless notice of intention to apply for such a rule,
accompanied by copies of the petition and affidavits intended to be used in support of the
application, was served upon the said Government, Administration, Minister, Administrator or
officer at least 72 hours, or such lesser period as the court may in all the circumstances of the case
consider reasonable, before the time mentioned in the notice for the hearing of the E application.
This section does not prevent an urgent application for an interim interdict against the Government
or any Government official being made on oral evidence where prior verbal notice had been
given." F
In this respect therefore, our section 9 appears to have been imported form the English law. The
plain implication of the State Proceedings Act (Cap. 10:01) as I see it, is that the Government of
Botswana should, so far as possible, be treated like other litigants and that its immunity from grant
of relief in the form of an interdict of specific performance forms an exception to the general and
fundamental rule that the court will only grant an G interdict at the suit of a private individual to
support a legal right. It is to be noted that this immunity operates in favour of the Government and
its servants only. It is one-sided, in the sense that, the provisions of the Act do not preclude the
Government from seeking an interdict or specific performance, interim or absolute, against an
individual litigant. The object of extending the immunity to cover public officers therefore, is to
prevent the H Government's immunity being stultified by substituting an individual official as a
defendant or respondent, since the rationale behind the immunity is that the machinery of the central
Government should not be brought to a halt by an interdict. Otherwise, applying the principle that
wrongs done by a public officer render the servant liable personally, an interdict might be sought
against the particular public officer liable thus, in effect, a specific remedy would be A obtained
against the Government instead of the declaratory order which is the more seemingly remedy.
In my view, when section 9 of the State Proceedings Act refers to "the court making a declaration",
it refers to a final declaration. It is a judgment or final order which conclusively declares the preexisting rights of the litigants without the appendage of any coercive decree. It would be a novel,
and indeed, unheard of suggestion, that an B interlocutory or interim declaration should be made
which might be in precisely the opposite sense of the final declaration made at the trial. For, what is
usually done on the hearing of an interlocutory application is to grant some form of temporary
remedy which will keep matters in status quo until the rights of the parties are finally found and
declared. It appears to me therefore, that reference to making a declaration of rights means
a C declaration at the end of the trial of the main cause, as distinct from a declaration on some
interlocutory application. Therefore, just as I cannot grant an interim interdict against the
respondents, even if all aspects of a prima facie case have been made out, I cannot, as an alternative,
make an interim declaration either.
In my judgment, I do not think that this court has jurisdiction under section 9 of the Act to make
something in the D nature of an interim declaration of rights which would have no legal effect, and
which, as pointed out earlier, might be the very opposite of the final declaration of right made at the
end of the action contemplated, after examining all the evidence and all the matters had been gone
into to the fullest extent.
The application could have been disposed of by the court's jurisdictional incompetence through
ouster, to grant E the relief sought. But, as I said earlier, in view of the elaborate arguments ably
advanced by counsel on both sides on the allegation of ultra vires and mala fides levelled by the
applicant in his founding affidavit against the respondents, some further observations are called for.
The synopsis of the facts as can be distilled from the lengthy affidavits cum copious annexures filed
by the F parties are as follows: Somewhere during the month of February 1995, there was an
outbreak of contagious bovine pleuro-pneumonia disease (C.B.P.P.), otherwise known as cattle lung
disease, among the cattle at Xaudum Valley, a comparatively small area, west of Shakawe in
Ngamiland, in the extreme north-west part of Botswana. The affected area borders Angola on the
north and Namibia on the west. The disease is medically G certified as highly dangerous with fatal
consequences, if not eradicated. It is known to be airborne and spreads with rapidity through aerosol
infection i.e. through sneezing and coughing by cattle infected in the area of contact. According to
the expert veterinarian opinion, there is as yet no cure for the disease. It is one of the animal diseases
specified under the Diseases of Animals Act (Cap. 37:01) and regulations made thereunder
see: H Regulation 3(i) of Diseases of Stock Regulations. According to the first respondent's
affidavit, the last known outbreak of the deadly disease in Botswana was in 1939. This was in the
Chobe area and all cattle in the area had to be slaughtered to prevent the disease spreading to other
parts of the country. The first respondent, upon learning of the outbreak of the disease, virtute
officio, travelled to the affected area and in exercise of the powers conferred on him, qua, Director
of Veterinary Services, put immediate A preventive and remedial measures in place. Acting in
terms of section 4 of the Diseases of Animals Act (hereinafter referred to as "the Act") the first
respondent, by Statutory Instrument No. 10 of 1995, dated 28 February 1995 and published in
Supplement C of the Botswana Government Extraordinary Gazette of 1 March 1995 declared the
area as "diseases of animals infected area", and prohibited movement of cattle into or out of B the
specified area without a requisite permit.
It appears to me from the reading of the Act and the regulations made thereunder, that the ultimate
responsibility of ensuring the efficacious implementation of the Act rests with the Minister of
Agriculture, who on account of collective responsibility, is accountable to the Government, via
Cabinet. It could be discerned from the answering C affidavits of both the first respondent and the
Minister of Agriculture that beef export forms a vital financial back-bone of the country's economy
and that the Government has entered into international contracts to supply beef to foreign countries
and institutions. These facts have neither been gainsaid nor traversed in any way by the applicant. D
According to the deposition of the first respondent, any preventive or curative measure in the fight
against this unexpected contingency would not only entail public expenditure but would also require
mobilisation of all available resources form not only the Department of Veterinary Services, but also
from other Government departments falling outside the portfolio of the Minister of Agriculture. It
was on account of this that he prepared a E Cabinet memorandum for presentation by the Minister
for approval by the Cabinet. Three options were put forward to the Government in this
memorandum for the control of the C.B.P.P.: (1) Vaccination at the initial cost of P4,832,929.00; (2)
test and slaughter at the cost of P10,5 million; and (3) stamping out with ring vaccination at the cost
of P12,369,579.00. Cabinet opted for the first and second strategies and directed that all cattle in
the F infected area should be tested. Those which tested positive or suspicious should be
slaughtered and compensation paid. Those which tested negative to be vaccinated. The first
respondent was directed by the Minister to carry out the Government directive. In the
implementation of this decision, kgotla meetings were held at which the first respondent and his
staff explained the rationale behind the Government's decision to the G farmers in the affected area
who understandably were troubled by the outbreak of the disease; but co-operated in the effective
implementation of the Government's decision. I need not go into the modalities employed by the
first respondent in the implementation of the scheme, except perhaps, to say that some unscrupulous
farmers either failed to submit their cattle for testing or filtered their untested animals through the
surveillance cordon thrown H around the infected area into other parts of Ngamiland then
unaffected by the disease. By November 1995, the disease had spread like wild-fire through a
greater part of Ngamiland and assumed epidemic proportions and claimed the lives of a considerable
number of cattle. It had become obvious that the vaccination strategy had failed. Panic among the
cattle farmers in Ngamiland was intensified. The inappropriateness and inefficacy of the known
vaccine had been made known by expert veterinarians from the Food and
Agriculture A Organisation (F.A.O.) of the United Nations and countries placing reliance on its use
advised to discontinue until further notice. The Government was in a quandary and had become
even more troubled at the imminent prospects of the disease spreading through the country. A task
force, made up of permanent secretaries of related ministries and departments of Government, the
police force, the special support group and the Botswana B Defence Force to patrol and picket the
fence boundaries was put in place to work out the logistical requirements and measures to alleviate
the hardships of cattle farmers in Ngamiland. External expert opinions sought from veterinarians
and epidemiologists of world-wide fame were conclusive that the only effective way of stamping
out the disease, once and for all, and to safeguard the future of cattle industry in the country, was
to C slaughter all cattle in Ngamiland. The estimated cost of the exercise, including compensation
to affected farmers and re-stocking, after successful eradication of the disease was over P240
million. It was in the light of the above that the Minister, on 2 April 1996, submitted a memorandum
to Cabinet for approval of measures intended to be taken, and allocation of funds for the projected
exercise. Cabinet approval of measures intended to be taken was D given on 4 April 1996.
Measures approved by Cabinet were:
"1. Ngamiland district be blockaded by using the Police, Special Support Group and Botswana
Defence Force personnel to patrol and picket the fence boundaries. E
2. All cattle in Ngamiland be immediately destroyed except those in fenced farms testing negative.
3. Farmers be compensated at the rate of P500 in cash per animal killed (irrespective of size or age)
for 70 per cent of their animals and the other 30 per cent compensated in kind to facilitate restocking
in preference to the payment of 100 per cent cash for all animals killed as full and final settlement F
That other salvage mechanism be sought:
4. Immediate and urgent relief measures be instituted for the district to alleviate hardships;
5. Government programmes like A.L.D.E.P., S.L.O.C.A. and P.A. be intensified in Ngamiland and
where possible tailor made to suit the conditions arising out of C.B.P.P. eradication. G
6. Dispensation be given to all the moratorium on supplementing internal travelling votes and
virements into such votes to be lifted to enable the use of private vehicles for disease control
operations as a last resort where Central Transport Organisation is unable to provide vehicles from
the government pool." H
These were the decisions the Minister set out to implement. And, of course, such implementation
must be consonant with the powers conferred on him under the Disease of Animals Act (Cap. 37:01)
and regulations made thereunder. Both counsel concede, and in my view, rightly, that upon the facts
as deposed to by the respondents, it is beyond dispute that it is the exercise of the Minister's powers
under the Act which is called in question. That being the case, all allegations of A mala fides and
excess of jurisdiction must be determined within the parameters of the powers conferred on the
Minister by the Act and regulations made thereunder and not those conferred on the first respondent.
Assuming I am wrong on the jurisdictional competence to make an interim declaration in the
application, and I am sure I am not, I shall briefly state the requisites for grant of the interim relief
which the applicant herein must B satisfy:
(a) That the right which is the subject-matter of the main action (which in this case is yet to be
instituted) and which the applicant seeks to protect by means of interim relief is clear or if not clear,
is prima facie established, though open to some doubt; C
(b) That if the right is only prima facie established, there is a well grounded apprehension of
irreparable harm to the applicant if interim relief is not granted and he ultimately succeeds in
establishing his right;
(c) That the balance of convenience favours the granting of interim relief and that; D
(d) The applicant has no other satisfactory remedy.
See: L.F. Boshoff Investments (Pty.) Ltd. v. Cape Town Municipality; Cape Town Municipality v.
L. F. Boshoff Investments (Pty.) Ltd. 1969 (2) S.A. 256 (C) per Corbett J. (as then was) at p. 267;
Olympic Passenger Service E (Pty.) Ltd. v. Ramlagan 1957 (2) S.A. 382 (D); National Union of
Textile Workers & Others v. Stag Packings (Pty.) Ltd. & Another 1981 (4) S.A. 932 at 938.
There is no dispute about the fact that the Minister's act towards the eradication of the cattle lung
disease (C.B.P.P.) was founded under regulation 24 of the Disease of Stock Regulations (Cap.
37:01) made under F Diseases of Animals Act (ibid). There is equally no dispute that cattle lung
disease (C.B.P.P.) is one of the diseases specified in regulation 3 of the enactment. Regulation 24
stipulates:
"24(1) It shall be lawful for the Minister to cause to be destroyed any stock - G
(a) which are found to be infested with disease;
(b) which have been in contact with any stock infected with disease or have been in any infected
area or place;
(c) which are found in any stock-free zone,
or to prohibit the removal from any place of any forage, grass, hay, grass rushes or any article or
living thing likely to convey or spread any disease. H
(2) Except as mentioned in these Regulations no compensation shall be payable in respect of any
loss or damage caused by the exercise of the powers of these Regulations.
(3) The Minister may, by notice published in the Gazette, delegate any person by name, or the
person for the time being holding the office designated by him, to exercise any of the powers vested
in him under subregulation (1) hereof, for a period not exceeding three months at any one time
subject to such conditions, A exceptions and qualifications as he may prescribe; and thereupon the
person so delegated shall have and exercise such powers, subject as aforesaid.
(4) Any delegation made under subregulation (3) shall be revocable by the Minister at any time by
notice published in the Gazette, and no such delegation shall prevent the exercise of any power by
the Minister." (The emphasis is B mine.)
It is pertinent to note that most of the points raised in the heads of argument filed with the court on
13 May 1996 by counsel for the applicant, in support of the allegation of the first respondent
(Director of Veterinary Services) having acted ultra vires the powers conferred on him under the Act
and regulations made thereunder had to be C abandoned, when it became clear in the course of the
hearing that the first respondent was only executing such of the Minister's powers as delegated to
him.
The issue before me therefore, is whether the Minister acted ultra vires the powers conferred on him
under regulation 24(1), especially, subregulation (b) reproduced supra. The interpretation of this
subregulation is called D for. Advocate Lamont, with all vehemence, advanced the following
points in support of the applicant's contention that the Minister acted ultra vires his powers in
ordering all cattle in Ngamiland to be slaughtered; and I quote from the heads of argument alluded
to supra:
"(i) Regulation 24 which is of application and which defines the stock which has to be destroyed
limits the right of E destruction to stock actually infected or stock which has been in contact with
any stock infected with disease or has been in any infected area or places.
(ii) That section 24 of the regulations in so far as they relate to stock in an infected area relate to
stock which at one time was in an infected area the regulation uses the words 'have been' not 'are'. F
(iii) In these circumstances it is a prerequisite before the minister may destroy: that the stock
actually infected or be shown to have been in contact with infected stock or be shown to have been
in an infected area.
(iv) The use of the word 'any' as opposed to 'every' indicates that the regulations are directed to the
right to slaughter any particular animal which has as a necessary concomitant that the question of
slaughter of each particular animal be G considered not that there be a general consideration
relating to all animals.
(v) 'Any' is defined in the Concise Oxford Dictionary as meaning 'A1. no matter which, of several.
B. some no matter how much or of what sort. C. whichever is chosen'. H
(vi) From the aforegoing, the statute contemplates a process or selection of each particular animal to
be slaughtered not a general right of destruction of every one or all. See Arprint Limited v. Gerber
Goldschmidt S.A. Limited 1983 (1) S.A. 254 at 261. See: Hayne and Company v. Kaffrarian Steam
Mill Co. Ltd. 1914 A.D 371.
(vii) The regulations constitute subordinate legislation. Where such legislation interferes with the
existing rights, it is invalid unless the enabling statue expressly or impliedly authorises A the
interference. A power to abolish a fundamental right would require the clearest language. The right
of destruction is a most drastic and serious inroad into the fundamental common law rights of
persons subjected thereto and further is a substantial and fundamental inroad to the rights to property
conferred upon citizens of Botswana by the Constitution (section 3C and section 8). B
See: Molefe v. State President and Others 1987 (4) S.A. 745 at 751-3.
(viii) The right to make the decision has coupled to it an obligation to comply with the mechanism
set out in the regulation. The regulations may not prescribe a power greater than that stated in the
section. As the regulation is subordinate legislation, it is limited to providing the method and means
to be employed for the achievement of the C purposes stated in this section. See: Molefe supra.
(ix) The section is in any event express and limits the powers to those set out in the regulations (in
section 5)."
Regarding Advocate Lamont's arguments on reference to dictionaries as intrinsic or grammatical
aids to D interpretation, it behoves to make some general observations. Even though I am quite
aware that dictionaries are not to be taken as authoritative exponents of the meaning of words used
in Acts of Parliament and other documents, yet it is a well-known rule of the courts of law that
words should be taken to be used in their ordinary sense, and we are therefore sent for instruction to
these books: See: R. v. Peters (1886) 16 Q.B.D. 636 per Lord E Coleridge. One of the drawbacks
in the use of dictionaries is that there is no "authoritative" dictionary, and therefore, a court is free to
consult whichever it pleases: (cf. Nairne v. Stephen Smith and Co. Ltd. [1948] 1 K.B.17 where a
judge and counsel cited different dictionaries).
In my opinion, the use of a dictionary to assist in the understanding of words used in an Act must
not however, F result in the words of an Act being abandoned in favour of synonymous
expressions. This is because the legislature will have chosen a particular word and it follows that
other words must have been considered and rejected. It is true that a dictionary will enable the
common use and the ordinary meaning of a word to be ascertained or identified and that it will do
this by describing the meaning through other words. However, it is a G misuse of the dictionary
then to explore the meaning of these other words and interpret the Act in the light of the meaning so
discovered: See Cozens v. Brutus [1973] A.C. 854. In my view, words take their meaning from the
context in which they appear. Therefore a dictionary meaning of a word that is clearly not applicable
in the context in which the word is used in the legislation under consideration is of no assistance. In
this regard, I consider H myself a beneficiary of the admonition of the House of Lords to courts to
beware of subjecting words in legislation that have an ordinary, everyday meaning to intensive
analysis, and that common sense, experience of the world and local knowledge should guide the
interpretation of such provisions: See: Seay v. Eastwood [1976] 1 W.L.R. 1117 at 1121; Cozens v.
Brutus supra. The proper approach, in my view, is to interpret the phrase as used in its context,
assisted as it may be, but not necessarily bound by one of a A variety of dictionary definitions.
On the issue of interpretation of documents, it is trite learning that the starting point to the
understanding of any document, including of course, an Act of Parliament and subordinate
legislation made thereunder, is that it must be read in its entirety. In other words, every passage in
the document must be read, not as if it were entirely divorced from its context, but as part of the
whole instrument: See Attorney-General v. Prince Augustus of B Hanover [1957] A.C. 436 per
Viscount Simonds at p. 461.
Under our laws, the combined effect of sections 26 and 27 of the Interpretation Act (Cap. 01:04)
directs our courts to adopt an interpretation which will ensure the validity and attainment of the
object of the legislation called in question. Such tool for interpretation carries the Latin tag: ut res
magis valeat quam pereat. C
The sections read:
"26. Every enactment shall be deemed remedial and for the public good and shall receive such fair
and liberal construction as will best attain its object according to its true intent and spirit. D
27. In the construction of an enactment, an interpretation which would render the enactment
ineffective shall be disregarded in favour of an interpretation which will enable it to have effect."
A fortiori, in cases where more than one interpretation is possible, the courts will endeavour to adopt
that interpretation which will ensure the validity of the Act: See Noke v. Doncaster Amalgamated
Collieries Ltd. [1940] E A.C. 1014 per Lord Simon at p. 1022.
Reference should also be made to section 2 of the Interpretation Act (Cap. 01:04) which provides
that each of its provisions shall apply to every enactment, including the Constitution and all other
statutes, except in so far as the contrary intention appears. F
I shall proceed to make use of this canon of interpretation in an endeavour to discover what the
legislature intends to achieve by the provisions of regulation 24 of the Disease of Stock Regulations
(ibid) under which the Minister purports to act. I shall start my enquiry with an excursion into
section 8, subsections (1) and (5)(a)(v) of the Constitution of Botswana. G
Section 8(1) stipulates that:
"8(1) No property of any description shall be compulsorily taken possession of, and no interest in or
right over property of any description shall be compulsorily acquired, except where the following
conditions are satisfied, that is to say - H
(a) the taking of possession or acquisition is necessary or expedient (i) in the interest of defence, public safety, public order, public morality, public health, town and
country planning or land settlement;
(ii) in order to secure the development or utilization of that, or other, property for a purpose
beneficial to the community; or (iii) in order to secure the development or utilization of the mineral
resources of Botswana; and A
(b) provision is made by a law applicable to that taking of possession or acquisition (i) for the prompt payment of adequate compensation; and
(ii) securing to any person having an interest in or right over the property a right of access to the
High Court, either direct or on appeal from any other authority, for the determination of his interest
or right, the legality of the B taking of possession or acquisition of the property, interest or right,
and the amount of any compensation to which he is entitled, and for the purpose of obtaining prompt
payment of that compensation." C
Section 8(5)(a)(v) provides:
"5. Nothing contained in or done under the authority of any law shall be held to be inconsistent with
or in contravention of subsection (1) of this section - D
(a) to the extent that the law in question makes provision for the taking possession or acquisition of
any property - . . .
(v) in circumstances where it is reasonably necessary to do so because the property is in a
dangerous state or injurious to the health of human beings, animals or plants
and except so far as the provision or, as the case may be, the thing done under the authority thereof
is shown not to E be reasonably justifiable in a democratic society . . . "
It is obvious to me that regulation 24 (supra) under which the Minister is acting to give protection to
cattle outside Ngamiland (declared to be cattle lung disease area), is that "any law" mentioned in the
Constitution. It is equally F clear that the powers granted to the Minister under regulation 24 to
destroy or cause to be destroyed any stock which fall under any of the three categories set out in
regulation 24, are unlike those powers conferred on the Director (first respondent) or any veterinary
officer, which are predicted on the fulfilment of conditions precedent to their exercise. For instance,
under regulation 82(a) of the same regulations, G
"it shall [only] be lawful for the Director, Government veterinary officer, or any stock inspector to
destroy or cause to be destroyed any animal found suffering from the disease of lung-sickness or
which has reasonable grounds fro suspecting to be suffering form lung-sickness . . .". H
Furthermore, the power of the Director (first respondent) and other veterinary officers, as can be
seen from regulation 82(d) to deal with any animal susceptible to the disease of lung-sickness which
has been in contact with any animal infected with lung-sickness, is to isolate, or cause to be isolated,
such animals for a period of eight weeks or such longer period as the Director (first respondent),
Government veterinary officer, or any stock inspector may by notice in writing determine. There is
no such duty imposed on the Minister in the exercise of his A powers under regulation 24 (supra).
I have already pointed out that it is the exercise of the Minister's powers under regulation 24 which
is being examined under the legal lens. I take note of the fact that the applicant's heads of argument,
filed with the court and vigorously argued before me, derive their support form dictionary meanings
of words and phrases like "any" and "have been" used in the Act (including the regulations).
Furthermore, until it became clear from the first B respondent's (director's) answering affidavit,
that he was only carrying out the Minister's directive, and not exercising his powers under the Act,
the projected arguments were focused on the exercise of his powers and not that of the Minister. I
believe that it is this late realisation which threw Advocate Lamont's arguments based on the
dictionary meaning of words and phrases completely out of tune with the wording of regulation 24.
There is a C plethora of judicial authority to support the view that sentences are not mere
collections of words to be taken out of the sentence, defined separately by reference to dictionary or
decided cases, and then put back again into the sentence with the meaning which one has assigned to
them as separate words, so as to give the sentence or phrase it cannot bear without distortion of the
English language: See e.g. Bourne v. Norwich Crematorium Ltd. D [1967] 1 W.L.R. 691 at 696. I
can see no justification from the context of the subject of the statute for controlling the meaning of
the general expression of "any stock" or "have been", by reference to the dictionary. To do so
appears to me mere conjuncture as to the intention of the Legislature. I do not propose to enter into
either grammatical or syntactical analysis of the English language as used in regulation 24. Suffice it
to say that the word "stock" is a class noun used to define the class of animals (including "cattle")
destined for destruction on E the orders of the Minister in exercise of his powers under regulation
24. To restrict the expression "any stock" to an individual bull or cow or calf would, in my view, be
doing violence to the language of the Act.
Furthermore, on the facts of this case, since the lung-sickness (pleuro-pneumonia) is not only
contagious but F also infectious, in the sense that it is airborne and spreads by aerosol infection
(through sneezing and coughing by cattle infected in the area of contact), it would be a complete
deviation and indeed a distortion of the legislative intention to use the dictionary meaning or the
word "contagion" and to insist that the Minister's powers should be G limited to only cattle which
have had physical bodily contact with stock infected with disease in the infected area. So also does it
appear to me illogical to say that the participial expression "have been" applies to cattle which have
been in the infected area or place, but found outside it and not those found inside it.
Me judice, reading the legislation in its entirely, and applying the ut res magis veleat quam pereat
canon of H interpretation to the facts of this case, I have no difficulty in finding that the Minister's
powers, under regulation 24, wide as they are, extend to every cattle in the affected area or place,
and that there has been no breach of the ultra vires doctrine in the exercise of such powers.
Before leaving this issue on the interpretation of regulation 24, I shall, with respect, advert to the
following statement made by Denning L.J. in Magor and St. Mellons Rural District Council v.
Newport Corporation [1950] 2 All E.R. 1226 at 1236: A
"We [Judges] do not sit here to pull the language of Parliament and Ministers to pieces and make
nonsense if it. That is an easy thing to do, and it is a thing to which lawyers are too often prone. We
sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better
by making sense of the enactment than by opening it up to destructive analysis." B
See also: Seaford Court Estates Ltd. v. Asher [1949] 2 K.B. 481 at 499.
I now return to consider the applicant's allegation of mala fides. Here, I would want to refer to the
case of Momoniat v. Minister of Law and Order and Others; Naidoo and Others v. Minister of Law
and Order and Others 1986 (2) S.A. 264 (W) where Goldstone J., delivering a Full Bench decision
said, inter alia: C
"I would draw attention to the two different formulations which have been adopted by our Courts of
the test to be applied for the purpose of deciding whether the exercise of such a wide discretionary
power may be set aside: D
(1) that the person or body exercising the power acted 'otherwise than bona fide' eg R. v. Scheepers
1942 T.P.D. 122...
(2) that the Legislature could 'never have contemplated that such a measure be countenanced'." E
I have already pointed out that this application was brought on the erroneous impression that the
slaughter of cattle in Ngamiland was on the orders of the first respondent (Director of Veterinary
Services). With the correction of this impression, all the vituperative and emotional words used by
the applicant in his founding affidavit, and directed at the conduct of the first respondent in the
whole scenario, must fall away. F
I think what is left for me to decide is whether the Minister's decision and mode of its execution can
be reasonably justified in a democratic society as required under section 5 of the Constitution. From
the Minister's supporting affidavit which I shall immediately reproduce hereunder, it is quite clear
that the Cabinet decision to cause the slaughter of cattle in Ngamiland (as the only way to stamp out
the disease and pave the way for restocking) was G taken in the national interest. Perhaps I should
note that in the practice of every democracy, there comes a time when individual interests should be
subordinated to those of the society as a whole. This is more so where there is a national crisis such
as the one before us. The affidavit of the Minister is, inter alia, in the following terms: H
"1. I am the Minister of Agriculture in the Government of the Republic of Botswana, and the facts
averred to herein are within my knowledge.
2. I have read the affidavit of Notshudi Vincent Raborokwe and I confirm its contents insofar as
they relate to me. 3. In particular I confirm that following the decision of Cabinet that all the cattle
in Ngamiland should be slaughtered in A order to eradicate the disease of Contagious Bovine
Pleuro-Pneumonia I instructed the Director of Veterinary Services to see to the carrying out of that
directive.
4. We are a nation of farmers and the debate in Cabinet before reaching this decision was deep and
soul searching. All the options available were exhaustively debated before what we concluded was
the wise and proper decision was B taken.
5. Cabinet was fully aware of the consequences of the decision on individual farmers, including
parliamentarians, civil servants, and people from every level of society. However, we also had to
weigh the wider effects of any decision we made on the cattle industry nation-wide and on the future
of the industry in Ngamiland itself. I believe that any other C decision would have meant that the
disease would ultimately spread beyond Ngamiland and lead to the closure of the country's other
two abattoirs as well as the Maun. This way Botswana's international status in disease control will
be maintained, and in due course the Ngamiland cattle industry should be fully restored.
6. However, Cabinet has also been done all it can to ensure that farmers affected by the programme
will be D compensated, and that measures will be taken to alleviate social disruption caused by the
eradication programme.
7. I have been closely involved with the monitoring of the spread of this epidemic, and I am
satisfied that it would be disastrous to delay in any way the implementation of the eradication." E
Even though neither the Constitution nor Act 24 cast an obligation on the Minister, when acting
under regulation 24, to seek acquiescence from cattle owners to be affected by his action before
setting out to implement his decision, the respondents' affidavits show that the Cabinet, spearheaded by the President, by radio and Kgotla F meetings, kept the nation informed of the reasons
behind the drastic steps taken by Cabinet and the provisions made to alleviate the hardship of those
who may be affected by the implementation of the decision.
It also appears to me that upon proper interpretation of regulation 24(2), once the Minister is
adjudged to be acting lawfully, no compensation is payable for any animal destroyed. It can safely
be said therefore, that the G Government's offer of P500.00 per beast is no more than an ex-gratia
award based on affordability. In any event, the Government's offer of compensation provides an
alternative remedy to the applicant. The adequacy or otherwise of the mode of payment of such
compensation cannot, in my view, found or even support an application for an interim order sought
by the applicant. I find the applicant's allegations of both ultra vires and H mala fides, baseless and
without foundation. Indeed, the Minister would have been within his rights to proceed with the
implementation of his decision without prior consultation with anyone and have whomsoever
obstructs or hinder him in the discharge of his powers or duties prosecuted under regulation 72 of
the regulations. So far as the balance of convenience is concerned, the matter is very clear. The
uncontradicted averments A contained in the respondents' affidavits demand that the eradication of
the epidemic programme should not be halted. The applicant, in my view, has not shown any cause
for grant of the interim relief sought, and it is in the light of all the above that I refuse his application
with costs against him and in favour of the respondents.
Application dismissed. B