Mohalenyane Phakela
WOOL and mohair farmers will have to wait for the Court of Appeal verdict which will be delivered on Friday as it will determine whether they will still be forced to sell their fabric from Thaba Bosiu or trade freely.
On Thursday, the apex court heard an appeal which was lodged by the Ministry of Small Businesses, Cooperatives and Marketing against the 4 April 2019 High Court ruling which nullified 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.
The case was initially brought to the High Court by the Lesotho National Wool and Mohair Growers Association (LNWMGA) last September pleading with the court to revoke the regulations.
The Court of Appeal bench which reserved judgement for 31 May 2019 was made up of Justices Petrus Damaseb (presiding) from Namibia and Zimbabweans Moses Chinhengo and Tafuma Mtshiya.
In its appeal, the government argued that the High Court’s Justice Moroke Mokhesi misdirected himself in nullifying the regulations on the basis of Regulation 11 of the Agricultural Marketing (Wool and Mohair Licensing) (Amendment) Regulations No. 65 of 2018 without which he said the entire regulations could not stand.
Regulation 11 states that, “a person who contravenes regulations of shearing and exporting commits an offence and is liable, on conviction, to a fine of M50 000 or to be imprisoned for a period not exceeding two years or both”.
The regulations further state that, “a person who brokers, tests, auctions or processes without a licence commits an offence and liable to a fine of M50 000 or to imprisonment for a period not exceeding five years or both”.
In April, Justice Mokhesi ruled that the 2018 regulations could not stand the test of legality and the regulations were not clear.
“It is uncontroverted (undeniable) that the applicant 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 under regulation 11, the Minister (Chalane Phori) exceeded the powers conferred on him by the act. It follows therefore that regulation 11 is beyond powers of the act and has to be struck out.
“The question is whether without regulation 11, Regulations N0. 65 of 2018 can stand on their own. My considered view is that they cannot stand on their own as without penal provisions the prohibitions contained in the regulations would merely be directory and not peremptory,” Justice Mokhesi said.
However, on Thursday the ministry’s lawyer, Advocate Taeke Thejane, argued before the three judges that even though the Small Business Minister (Phori) may have gone beyond his powers in Regulation 11, that does not mean the entire regulations can be declared null and void.
“The entire regulations were nullified because of Regulation 11 for the judge in the below court says they cannot stand on their own without the regulation in question but I beg to differ,” Adv Thejane said.
“We admit that in Regulation 11 the minister went beyond the scope of the principal act (Agricultural Marketing Act of 1967) when setting penalties, but that does not mean if penal provisions (Regulation 11) are declared ultra vires (beyond scope), the entire regulations cannot work without it. The penalties may be left to the discretion of the court.
“Furthermore, Regulation 6 states that a holder of a licence (attained from the ministry) cannot export wool or mohair unless it is prepared in Lesotho. The judge ruled that the term ‘prepared’ was vague.
We submit that he erred while interpreting prepared because he should have referred to the principal act which clearly describes preparation to include classing, testing, grading and packaging among others. The minister did not go that far in regulations because this is not a new industry and farmers are aware of the terms used because they have been in this trade for over 40 years.”
LNWMGA lawyer, Advocate Qhalehang Letsika’s argument was that the minister could not regulate things outside the country, specifically referring to the testing aspect which also requires one to have a licence.
“In his affidavit, the minister states that there are only four testing facilities in the world and the closest to Lesotho farmers is the one in Port Elizabeth in South Africa. We accept that the minister is entitled to regulating business in Lesotho but there are no testing facilities here.
“Furthermore, the farmers are not the ones who do the testing, so they cannot be expected to have testing licenses. It was unreasonable for the minister to prescribe testing in the regulations because that is done outside the country.
“The penalty provisions (Regulation 11) cannot be separated from the minister because he cannot achieve his objective if the penalisation is removed from the regulations. We submit that the minister was also obliged to clearly set out the guidelines of preparations in the regulations for farmers to clearly know the requirements.”
On Thursday Justice Damaseb then said “judgement is reserved for 31 May 2019” which is the date on which the Court of Appeal will deliver judgements for all cases which were before it.