SWAZILAND
HIGH COURT
EAGLES
NEST (PTY) LIMITED
Applicant
v
MINISTER
OF AGRICULTURE & COOPERATIVES
1st
Respondent
PRINCIPAL
SECRETARY MINISTRY OF AGRICULTURE
2nd
Respondent
DIRECTOR
OF VETERINARY SERVICES FOR THE KING OF
SWAZILAND
3rd
Respondent
ATTORNEY
GENERAL OF THE KINGDOM OF SWAZILAND
4th
Respondent
Civ.
Case No. 2465/2002
Coram SAPIRE,
CJ
For
Applicant
For
Respondents
JUDGMENT
(14/08/2002)
2
This
is an application for an order for a permit issue permitting the
applicant to import poultry into the Kingdom. The permit is required
in terms of legislation, to which I will later refer.
The
problem appears to be that a certificate on affidavit, sworn to by a
person representing the South African supplier cannot be made to
accompany the application to import the poultry, that the birds come
from a flock which has been tested within the past twelve months for
pullorum disease, fowl typhoid and mycoplasma. It is the applicant's
case that to insist on compliance with such requirement in the form
stipulated by Third respondent is unreasonable.
I
have had the advantage of argument from counsel on both sides, which
has assisted me in coming to a conclusion in this matter.
The
founding affidavit is attested to by Frederick Johnson Chester. He is
an adult male businessman of Malkerns and the Managing Director of
the applicant, Eagles Nest (Pty) Limited.
The
respondents are the Minister of Agriculture & Cooperatives;
Principal Secretary of the Ministry of Agriculture &
Cooperatives; The Director of Veterinary Services for the Kingdom of
Swaziland. The Attorney General is cited in a representative
capacity.
The
applicant is a mass producer of eggs within the Kingdom of Swaziland
and runs its operations from Malkerns. The affidavit informs the
court that the applicant has approximately one hundred and sixty
thousand egg-producing chickens that produce an average of
approximately four million eggs per month. The applicant grades and
distributes the eggs from its operations in Malkerns to various
outlets and retailers within the Kingdom of Swaziland including most
of the well-known supermarkets. The business is substantial and we
are told that there is an investment of approximately E24 000 000.00
in its operations. It currently employs approximately forty Swazi
workers and the applicant's business represents approximately 80% of
the total egg industry in Swaziland.
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For
the continued operations of the applicant's business, the applicant
needs on a regular basis; to replenish its stock of egg-producing
chickens called "point of lays" (POL). The applicant's
sources of these birds in an amount of approximately thirty thousand
chickens at any given time and at intervals of approximately two
months or at an average of six times per year. These "point of
lays" are imported, by the applicant, from two firms in South
Africa. One is known as Avi Chick and the other one is Bergvlei Chick
both of which are massive producers of POL within the republic of
South Africa.
To
bring the POLs into Swaziland, in order to comply with the specific
provisions of THE ANIMAL DISEASES ACT, 19651 the applicant requires a
permit for the import of such POLs. Section 3 provides
3. (1) The
Minister may, by notice published in the Gazette, make such
regulations as appear to him to be necessary in order to prevent the
introduction or spread of diseases amongst stock and other animals.
(2) Without
prejudice to the generality of the foregoing, the regulations may
provide for the following matters -
(a) the
definition of diseases and other expressions for the purposes of this
Act;
(b) the
notification of outbreaks, or suspected outbreaks, of diseases;
(c) the
restriction and prohibition of the importation, exportation and
movement of-
(i) animals,
animal products or any other thing likely to introduce or spread
disease among stock and other animals; and
(ii) containers
and vehicles used for the conveyance of animals, animal products or
any other thing likely to spread disease amongst stock and other
animals;
the
restriction and prohibition being effected by any necessary means,
including the establishment of sanitary cordons by an officer guarded
by or composed of officers who, in addition to other officers, may -
(iii) stop
and search persons, containers and vehicles; and
(iv) examine
and detain animals, animal products or any other thing likely to
introduce or spread disease amongst stock and other animals and
disinfect or destroy them or do both, with or without compensation;
(cc)
the restriction and prohibition of:
(i) the
importation, exportation and movement of live virus or other
pathogenic agent capable of causing disease in animals or of serum,
vaccine or other biological or chemical products intended for the
treatment of animals; or
(ii) the
use of biological or chemical products for the treatment of animals;
Importation
of stock.
6. (1) On
and after the date of publication of these regulations, no stock
shall be imported into Swaziland except as provided in these
regulations.
(2) Anyone
desirous of importing stock into Swaziland shall first make
application to the Director of Veterinary Services for a permit
stating therein -
(a) the
number and kind of stock which it is desired to introduce; 1 Act 7
/65
4
(b) the
country, or province, and the particular district thereof from which
they come;
(c) the
route by which they will travel;
(d) the
ultimate destination of each animal;
and,
if required, shall produce a certificate from a Government veterinary
surgeon or some duly authorised officer stating that the stock is
free from disease and have not come from an infected area.
(3) On
receipt of these particulars the Director of Veterinary Services may
grant a permit for the importation of the stock provided such
importation is not prohibited by any special regulation and subject
to such conditions as he may consider desirable to impose in order to
protect Swaziland against the introduction and spread of disease.
The
third respondent, whilst not specifically refusing to issue the
import permit to the first respondent, has indicated his willingness
to issue such permit on a condition which the applicant contends is
unreasonable and in fact frustrates the whole point of the
importation. The requirement of the Third Respondent is that
"the
application to import be accompanied by a sworn affidavit by the
exporter that the flock from which the birds originated has been
tested within the past 12 months for Pullorum Disease, Fowl Typhoid
and Mycoplasma and found to be free of infection "
There
is much debate whether the condition which is sought to be applied
accords with modern scientific practice and whether there is in fact
some agreement in the SADCC region in regard to the form and
considerations which should apply in the importation and transport of
chicken.
That
in itself, however, is not vital in this case. What I have to
consider is the terms of the act itself and the regulations, which
have been framed in terms of the legislation. I must determine
consider whether its implementation is in this particular case is
reasonable or not.
My
attention was drawn by Mr. Dlamini who appeared for the respondents
to the terms of the regulation and the Section of the Act which
applies to the Minister may by notice published in the gazette make
such regulation which may appear to him to be necessary in order to
prevent the introduction or spread of disease amongst stock and other
animals and without prejudice to the generality of the foregoing. The
regulations may provide for the restriction and prohibition of
importation, exportation
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and
movement of animals, animal products or other things likely to
introduce or spread disease among the stock and other animals.
The
regulations which are made, are for this specific purpose and that is
to prevent the introduction or spread of disease among stock and
other animals which it is common cause includes the live stock or the
poultry which are the subject matter of this application.
One
of the regulations that have been formulated in terms of this
legislation is Regulation 6 which limits the importation of live
stock to such importation as is in accordance with the Regulation,
which I have quoted above
I
am given to understand that an application complying with these terms
was made.
On
receipt of these particulars the Director of Veterinary Services may
grant a permit for the importation of the stock provided such
importation is not prohibited by any special regulation and subject
to such condition as he may consider desirable to impose in order to
protect Swaziland against the introduction and spread of disease. We
are told that in order to give effect to the above provisions, and in
exercise of the power vested on him, the Director of Veterinary and
live stock Service, that is the 3rd respondent, has adopted the
practice that chickens will only be allowed to be imported if such
consignment is accompanied by a sworn affidavit by the exporter that
the flock from which the birds originated has been tested within the
past 12 months for pullorum disease, fowl typhoid and mycoplasma and
found to be free of infection. The notice of this requirement is not
one which emanates from the regulations itself but is a standard
which has been adopted by the 3rd respondent and is the requirement
to which he presently adheres and grounds upon which the permit has
not been issued. The problem arises in what should be said. If one
bears in mind and there has been evidence that the particular disease
which we are concerned in this application is already affecting not
only the African stock which as we have seen constitutes a large
proportion of the birds in Swaziland. If that disease is already
present, how is it going to help by insisting on an affidavit in the
terms in which the 3rd respondent is insisting? If indeed the birds
when they arrive at Oshoek or whatever the point of
6
import
is, are taken straight to the farm and there exposed to birds which
already are infected the disease would be capitulated if not spread
in any case. The point about this is that by insisting on this
particular condition the purpose of the regulations will not be
advanced. It is true that more birds or it is possible that birds
that have this particular disease will be brought into the country
but that is not introducing the disease into the country. The spread
of the disease in the ways which are contemplated in the argument
advanced by the respondents will in no way be affected by insisting
on an affidavit in the form in which we have. On the other hand to
insist on such an affidavit can have the most destructive effect on
the whole industry or a large portion of the industry in the country.
It is this balance which has to be considered because if insisting on
the affidavit will not advance the purpose of the act and the
regulation but on the other hand will result in great harm then the
application on which the 3r respondent insist could be unreasonable.
The unreasonableness also relates to a rule of thumb method of
determining what should be required in the affidavit. What has to be
taken into account also is the presence or non-presence of the
disease in Swaziland; to what extent does insistence on the
stipulation in the affidavit prevent the introduction or spread of
the disease if the disease is already present. Clearly the
eradication of the disease is not going to be achieved thereby. Even
if completely healthy birds are introduced once they come into
Swaziland where this disease is endemic they will soon be infected.
On the other hand we have the situation that disallowing the
importation is going to have very deleterious effects. These are
considerations that the respondent should take into account rather
than adhering to a rule of thumb formulation of an affidavit.
Prevailing conditions must be taken into consideration. It may be
that on further consideration and further investigation permits are
issued in the future on different requirements and the whole question
of confinement and eradication of this particular disease if possible
will have to be considered in consultation between the interested
parties. There has been evidence of a well experienced veterinarian
who knows the local conditions and who is in fact a consultant not
only to the applicant but to other business enterprises in the field
and it is his considered opinion that these birds can be safely
admitted to the country on the terms which are proposed by the
applicant in the draft order which was placed before me. To insist on
a condition for importation, which does not materially further the
objects of the Act, is unreasonable.
7
My
attention was drawn to the publicity, which the matter was given over
the weekend. The papers before me disclose nothing to establish any
justification for the suggestion that any private interest, which the
Minister may have, is the reason for refusal of the permit. That is a
conclusion, which could not be supported on the evidence. It is
perhaps generally speaking undesirable that a Minister should himself
be engaged in a matter where there is private interest, which he has
as a competitor to a particular applicant for a permit. The correct
course in this regard should be investigated and the perception
should be avoided that there is any irregularity in the matter at
all. As it stands there is no basis for any finding of any
irregularity in this sense.
I
have therefore decided that the particular consignments, for which
application has been made, should all be admitted to the country on
the terms of a draft order that was suggested to me.
I
order that
a) The
1st and 3rd respondents are required and directed to issue to the
applicant an import permit for 63 000 chickens in pursuant to the
application which has been made in terms of Animal Diseases Act of
1965 in accordance with the permit which is to be found at page 54 of
the book of pleadings save that paragraph l(b) thereof shall have the
following words inserted at the end thereof:
"would
have been vaccinated. "
b) the
dispute as to whether the qualification or conditions contained in
clause l(b) of the veterinary import permit at page 54 of the book of
pleading is reasonable, justified or necessary is referred in the
hearing of oral evidence. Evidence, which may be led, shall be that
of all the deponents in the present proceedings and further witnesses
may be called to provided that a summary of the evidence of such
witnesses is supplied at lease 14 days before the hearing. For the
purposes of such hearing, discovery can be called for in terms of the
High Court Rules and the rules covering discovery shall be
applicable.
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c) The
costs of the application are reserved.
SAPIRE,
CJ
