Mohalenyane Phakela
ACTING High Court judge, Moroke Mokhesi, has reserved judgement in the case in which the Lesotho National Wool and Mohair Growers Association (LNWGA) is seeking the nullification of the Agricultural Marketing (Wool and Mohair Licencing) (Amendment) Regulations No. 65 of 2018.
The LNWGA wants the regulations nullified because they prohibit farmers from selling their wool and mohair from the country of their choice and through the broker of their choice.
The defendants are the Ministry of Small Business, Cooperatives and Marketing which implemented the regulations.
After listening arguments from the applicants and defendants’ lawyers, Justice Mokhesi yesterday reserved judgement to an unspecified date to allow the applicants’ lawyer, Advocate Qhalehang Letsika to file supplementary heads of arguments by the 8th of March 2019.
“The applicants are to file the supplementary heads of arguments by 8 March 2019 and judgement is reserved until a day to be announced,” Justice Mokhesi ordered.
Prior to the adjournment of the case, Adv Letsika argued that the regulations which violated the wool and mohair farmers’ rights were issued by the wrong ministry which allegedly did not have the authority to do so.
“The first respondent (Ministry of Small Businesses) has no authority to enact Agricultural Marketing Regulations as that is solely the duty of the Minister of Agriculture. Therefore, the lack of authority nullifies the regulations. Each minister is given a portfolio by law and therefore the minister of agriculture has such powers vested in him to issue the regulations because he has a team of agricultural experts.
“The applicant has been exporting wool and mohair to South Africa on behalf of local farmers for over 40 years without being required to have a licence. The regulations are unreasonable in that they deprive farmers their right of exporting freely. They interfere with their rights without justification in that applicants are not given the freedom to choose whether they want to sell locally or export.
“Furthermore, the regulations order that testing (of wool and mohair quality) be done in the country whereas there is no have a testing facility (in Lesotho) and the nearest testing facility is in Port Elizabeth (South Africa). This means applicants are being forced to use facilities which do not exist. The intention of the ministry to sell locally was good but the criteria used was wrong which deprived farmers their right to sell wherever they want,” Adv Letsika said.
Adv Thejane countered by arguing that the mere fact that farmers had been exporting without a licence for several decades did not mean they were acting lawfully. He further argued that the Minister of Small Businesses was vested with the powers to market agricultural products.
“Before the enactment of these regulations, one was required to have a conglomerate licence to do all activities but these new regulations seek to categorise the operations so that a person can have a licence for a specific purpose.
“The fact that the farmers had been acting against the law does not mean they do not stand to be corrected. All the farmers have to do is comply with the regulations. They fail to show how they are being prejudiced by the regulations other than being deprived a right which is against the law.
“The Ministry of Small Businesses is a new government portfolio which has three divisions. One of them is for marketing national products which is why it has powers to market agricultural products,” Adv Thejane argued.
For the past 44 years, Basotho farmers have been selling their fibre from South Africa through 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. The regulations forbid anyone to trade in wool and mohair without a licence obtained from the Ministry of Small Businesses.
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 is 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.
