THE High Court on Monday delivered yet another crushing blow to the government when it ordered the Ministry of Agriculture and Food Security to issue permits to wool and mohair farmers to enable them to export their produce to destinations of their choice.
The latest order by Justice Semapo Peete follows last month’s verdict by the same court which struck down as illegal the Agricultural Marketing (Wool and Mohair Licensing) (Amendment) Regulations No. 65 of 2018, which prohibits farmers from selling their wool and mohair from South Africa.
Justice Peete issued the Monday order after one of the wool and mohair associations, Mahloenyeng Trading, petitioned the High Court to declare as unlawful, the ministry’s decision to reject their application for the export permits.
They filed the case on 2 April 2019. The Ministry of Agriculture, the Minister of Agriculture, the Director of Veterinary Services and the Attorney General were the respondents in the matter.
“The first, second and third respondents’ failure to issue the applicants with export permits is hereby declared unlawful,” Justice Peete ruled.
“Their failure to advance the applicant with reasons why the applicant’s export permit application was declined is hereby declared unlawful. The decision of the first, second and third respondents to decline the applicant’s application for export permit is reviewed, corrected and set aside. The second and third respondents are hereby ordered to issue export permits to the applicant in accordance with its application.”
The latest court victory by the wool and mohair farmers is a slap to the face of the Minister of Small Businesses, Cooperatives and Marketing, Chalane Phori, who had vowed to defy the High Court’s April 2019 nullification of the Agricultural Marketing (Wool and Mohair Licensing) (Amendment) Regulations No. 65 of 2018 which made it illegal for the farmers to sell their produce in South Africa through their preferred brokers, BKB.
On 4 April 2019, Acting Judge, Justice Moroke Mokhesi dismissed as “null and void and of no force and no effect” the regulations which came into effect last year and made it illegal for the farmers to sell their produce in South Africa through BKB.
Justice Mokhesi ruled that the May 2018 regulations were in contravention of the Agricultural Marketing Act of 1967 which allowed framers to sell their wool and mohair from wherever they chose and through the brokers of their choice. The Ministry of Small Businesses, Cooperatives and Marketing were the respondents in the case and they were ordered to pay the costs of the lawsuit.
“It is declared that the Agricultural Marketing (Wool and Mohair Licensing) (Amendment) Regulations No. 65 of 2018 are null and void and of no force and effect to the extent that they are ultra vires (in contravention of or outside the powers stated in the) Agricultural Marketing Act of 1967,” Justice Mokhesi ruled.
The net effect of the ruling was to restore the status quo as it existed before the promulgation of the 2018 regulations where farmers could sell their wool and mohair from South Africa or any other place of their choice.
Justice Mokhesi delivered the verdict in the long-drawn-out case which was brought to the High Court by the Lesotho National Wool and Mohair Growers Association (LNWMGA).
The High Court decision was immediately welcomed by the LNWMGA who however, said their joy would only be complete if the government obeyed the court decision.
However, a defiant Mr Phori subsequently told the Lesotho Times that that he would rely on the Agricultural Marketing Act of 1967 which he said gave him the right as the minister in charge, to choose the best market for Lesotho’s wool and mohair. He said he had therefore decided that the Lesotho Wool Centre in Thaba Bosiu remained the ideal place for the local farmers to sell their wool and mohair from.
He however, did not say where or how the 1967 regulations gave him the right to ban the sale of wool and mohair from outside Lesotho especially as Justice Mokhesi had ruled that he was in contravention of the same act of 1967.
“The act (Agricultural Marketing Act of 1967) is clear that the minister in charge should administer and find the right market for Lesotho’s wool and mohair and through the 2018 regulations (that were nullified by the High Court) we only sought to tighten the loose ends in the 1976 act.
“What the High Court did was to nullify the (2018) regulations but we are not content with that decision and that is why we launched an appeal in the Court of Appeal. But the High Court ruling does not say that we should give people permits to export wool or mohair therefore Thaba Bosiu will remain the only place to sell from.
“We will continue to use the 1967 Act which also requires one to have a licence to sell or broker wool and mohair. And if we lose the appeal it will prove that there are mistakes in the regulations which need to be rectified and we will rectify them to ensure that wool and mohair continues to be sold from Lesotho. Selling from within our borders maximises profits and we will ensure that the country benefits from its fibre,” Mr Phori said.
For more than 40 years up to last year, Basotho farmers sold their wool and mohair from South Africa through Port Elizabeth-based brokers, BKB.
But on 4 May 2018, the Agriculture Minister, Mahala Molapo, torched a storm when he gazetted the Agricultural Marketing (Wool and Mohair Licensing) Regulations of 2018. Mr Phori made further amendments on 30 August to include associations and cooperatives among those who were barred from trading in wool and mohair without a licence from the Ministry of Small Businesses, Cooperatives and Marketing.
The regulations further state that “the holder of an export licence shall not export wool and mohair unless it is prepared, brokered, traded and auctioned in Lesotho”.
Any person found guilty of brokering, testing, processing, trading and auctioning wool and mohair without a licence would be liable to a fine of M50 000 or a maximum of five years imprisonment.
Anyone found to be in the business of shearing wool and mohair or exporting without a licence will be fined M20 000 or be imprisoned for two years.
Wool and mohair is currently auctioned locally by the Lesotho Wool Centre (LWC).
The 2018 regulations sparked strong protests from the wool and mohair farmers and this led to LNWMGA filing a High Court application in September 2018 seeking the nullification of the regulations on the grounds that they violated the farmers’ rights to sell their product to whoever they wished and from wherever they chose.
When delivering his verdict on 4 April 2019, Justice Mokhesi said the 2018 regulations could not stand the test of legality and the regulations were not clear.
“It is uncontroverted (undeniable) that the applicant (LNWMGA) has been exporting wool and mohair for its members for over 40 years and has in the process established relationships with the broking company, BKB, to the extent of owning shares in the latter company. In my opinion, this clearly establishes that their right to export wool and mohair had indeed vested.
“The Minister (of Small Business) may only make regulations prohibiting any person from dealing in the course of trade with a product in Lesotho unless such a person has been licenced. It simply cannot be reasonably justified why a facility which if found outside the country can be regulated as the minister sought to do.
“It needs no elaboration that in prescribing punishments, the Minister (Phori) exceeded the powers conferred on him by the act. It follows therefore that the (2018) regulations are beyond powers of the (1976) act and have to be struck out,” Justice Mokhesi ruled.