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[2007] ZASCA 146
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Volcano Agroscience (Pty) Ltd v Minister of Agriculture and Another (641/2006) [2007] ZASCA 146; [2007] SCA 146 (RSA); [2008] 2 All SA 507 (SCA); 2008 (3) SA 227 (SCA) (26 November 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number : 641/2006
In
the matter between :
VOLCANO
AGROSCIENCE (PTY) LTD
...........................
APPELLANT
and
THE MINISTER OF AGRICULTURE
...........................
FIRST RESPONDENT
ERNEST MOKANTLA NO
...........................
SECOND RESPONDENT
CORAM : HARMS ADP, BRAND, PONNAN, MAYA JJA
et
KGOMO AJA
DATE : 16 NOVEMBER 2007
DELIVERED : 26 NOVEMBER 2007
Summary
: Act 36 of 1947 –
‘agricultural remedy’ as defined imported in
contravention of s 16(1) – option contemplated
in
s 16(6)(a) available to illegal importer – despite the
additional contravention of s 7.
Neutral citation: This judgment may be referred to as
Volcano Agroscience (Pty) Ltd v Minister of
Agriculture
[2007] SCA 146 (RSA)
JUDGMENT
BRAND
JA
/
BRAND JA
:
[1] The first respondent is the Minister responsible for
the National Department of Agriculture (‘the Department’).
The
second respondent is the officer in the Department who was
appointed by the Minister as the ‘registrar’ in terms of
s 2
of the Fertilizers, Farm Feeds, Agricultural Remedies and
Stock Remedies Act 36 of 1947 (‘the Act’). During the
first
half of 2003, officials in the Department, acting under
delegation of the registrar, seized two consignments of pesticide
called
Aldicarb which had been imported by the appellant (Volcano)
from China. After that, both consignments remained in a warehouse
under
the control of the Department.
[2] About two years later, Volcano brought an
application in the Durban High Court against the Department for the
return of the two
consignments, essentially on the basis that it was
the owner and thus entitled to possession of the Aldicarb. In the
alternative,
it sought an order, based on s 16(6)(a)(i) of the
Act, that it be allowed to export the Aldicarb to another country.
Though
the second respondent was cited, in his official capacity, as
an interested party, no specific relief was sought against him. The
court
a quo,
Norman
AJ, found both Volcano’s claims wanting. Consequently she
dismissed the application with costs. The appeal against that
judgment is with her leave.
[3] Although the papers are surprisingly lengthy and
abound with immaterial squabbles, the salient facts are quite simple
and, for
the most part, common cause. So it appears that Aldicarb is
a pesticide destined for use in the control of soil pests. It
therefore
constitutes an ‘agricultural remedy’ as defined
in the Act. Hence it is required to be registered by the registrar in
terms of s 3. An agricultural remedy not so registered may not
be imported in terms of s 16(1) nor sold in terms of s 7(1).
In fact, both the importation and the sale of an unregistered
agricultural remedy are rendered criminal offences by s 18(1)(c).
It is common cause that the Aldicarb involved had not been registered
under s 3 prior to importation and that Volcano had therefore
contravened s 16(1) in respect of both consignments. It also
appears to be undisputed, at least as far as the first consignment
is
concerned, that it had been sold by Volcano in contravention of s 7
to a distributor in Polokwane who, in turn, resold part
of it to a
farming operation for illegal use in this country.
[4] Criminal charges under s 18(1)(c) – read
with s 7 – were brought against the distributor in
Polokwane, arising
from its sale to the farmer. Yet, in the two years
between the seizure and the present application, no charges have been
brought
against Volcano or any of its employees with regard to either
of the two consignments. In fact, I may add in passing, it is common
cause that even at this stage nothing further has happened in this
regard. In the absence of any criminal prosecution, Volcano demanded
the release of the consignments from the Department for the sole
purpose of exportation to Zimbabwe, pursuant to a request by a
prospective
purchaser in that country. These demands proved to be
fruitless. This led to Volcano’s application in the court
a
quo
which, as we now know, also met with no
success.
[5] The court
a quo
seems to have accepted – rightly in my view –
that, particularly in the absence of any evidence to the contrary,
Volcano
had established its ownership of the Aldicarb. Yet, the court
held, ownership in itself could not serve as a basis for the claim
that the substance be returned. The reason for this finding, as it
appears from the court’s judgment, was that, because ss 3,
7 and 16(1) of the Act had been contravened, Volcano could not be in
lawful possession of the Aldicarb. Hence it could not, despite
its
common-law ownership, seek the court’s assistance in attaining
what would amount to unlawful possession of the substance.
As to
Volcano’s alternative claim based on s 16(6)(a) of the
Act, the court
a quo
held
that Volcano is precluded from exercising the option afforded by the
section – to which I shall presently return –
because it
not only infringed s 16(1) by importing the Aldicarb illegally,
but also contravened s 7 of the Act by selling
it in this
country.
[6] Whilst s 16(6)(a) of the Act only constituted
an alternative basis for Volcano’s claim in the court
a
quo,
it somehow evolved into the mainstay of
its case on appeal. This appears,
inter alia
,
from the way in which the primary issue to be decided on appeal was
formulated, namely, whether Volcano, as an illegal importer
under
s 16(1) was precluded from exercising the option available to it
in terms of s 16(6)(a), in circumstances where it
had also
contravened ss 3 and 7 of the Act.
[7] Pivotal to this issue is, of course, the wording of
s 16(6)(a). It provides:
‘
(6)(a)
If any . . . agricultural remedy . . . has been imported contrary to
the provisions of this section, such . . . agricultural
remedy . . .
shall at the option of the importer thereof-
(i) at the expense of such importer be
removed by him from the Republic within such period as the registrar
may determine; or
(ii) be forfeited to the State and be
either destroyed or otherwise disposed of as the registrar may
direct,
and if such importer fails to remove such
. . . agricultural remedy . . . in terms of the provisions of
subparagraph (i) within the
period referred to in that subparagraph,
it shall be forfeited to the State, and be either destroyed or
otherwise disposed of as
the registrar may direct.’
[8] The court
a quo’s
reasoning as to why the option under s 16(6)(a) is
not available to an importer who, apart from s 16(1), also
contravened
some other provision of the Act, appears from the
following passage in its judgment:
‘
In
my view, s 16(6)(a) must be given its ordinary meaning and the
words “contrary to the provisions of this section”,
must
be confined to s 16 only and not be extended to include other
sections. Having said that, I am of the view that the option
is not
available to the applicant where there has been a contravention of ss
3 and 7 which are not part of s 16 of the Act.
In such
circumstances, the registrar is entitled to exercise the powers
conferred upon him by the Act which include destroying the
agricultural remedy or having it forfeited to the State.’
[9] I proceed to analyse this reasoning which,
essentially, also formed the basis of the Department’s argument
on appeal. As
to the court’s reliance on the phrase ‘contrary
to the provisions of this section’, it must, of course, be
borne
in mind that the phrase is introduced by the verb ‘imported’.
Read in this context, it seems to indicate no more than
the threshold
requirement for the option becoming available to the illegal
importer. Thus, the jurisdictional fact, as it were, on
which the
option depends is that the substance involved must have been imported
in contravention of s 16(1). Nothing more is
required. As I see
it, the plain wording of the section therefore indicates that if this
jurisdictional fact is present, the importer
can exercise the option
and it matters not that some other provision of the Act has also been
contravened.
[10] As to the court’s reference to contraventions
of ss 3 and 7, I find it convenient to deal with s 3 first
because the
reference to this section serves no other purpose than to
obfuscate. As I understand the position, a contravention of s 16(1)
presupposes a contravention of s 3. An exclusion of the
importer’s option under s 16(6)(a) whenever s 3 has
been contravened would thus render the option nugatory. This, I
think, makes any further consideration of s 3 in the present
context unnecessary.
[11] With regard to s 7, the court’s
perception appears to have been that an infringement of this section
– either
on its own, or in combination with an infringement of
s 16(1), which of the two, is not entirely clear – somehow
bestows
an automatic right on the registrar to have the substance
involved forfeited or destroyed. This is simply not so.
Section 16(6)(a)
itself certainly affords the registrar no such
automatic right. The registrar’s power to do so under this
section only becomes
available to him when the illegal importer
chooses not to remove the substance from the Republic or proves to be
unable to do so.
After all, the purpose of the section is clearly not
to penalise, but to ensure that unregistered substances are not
allowed into
the Republic. And once in the Republic to be safely and
expeditiously removed or destroyed. The only other reference to
forfeiture
in the Act, apart from s 16(6)(a), is to be found in
s 18(2). In so far as it is relevant, this section provides:
‘
The
court convicting any person of an offence under this Act, may, upon
the application of the prosecutor, declare any . . . agricultural
remedies . . . in respect of which the offence has been committed and
all . . . agricultural remedies . . . of a similar nature to
that in
respect of which such person has been convicted, and of which such
person is the owner, or which are in his possession, to
be forfeited
to the State.’
[12] In terms of s 18(2) a contravention of s 7
will therefore only lead to forfeiture if two requirements are
satisfied.
One, there must be a prosecution followed by a conviction.
Two, the court – and not the registrar – must declare the
substance involved, forfeited. And I do not believe that the position
is any different when both s 16(1) and s 7 are contravened.
Succinctly stated, the illegal importer in that situation is entitled
to exercise the option in terms of s 16(6)(a), unless
the
Department initiates a prosecution for the contravention of s 7
and then, upon conviction, obtains a forfeiture order from
the court
under s 18(2).
[13] To complete the picture: as the quoted passage from
the court
a quo
’
s
judgment shows, the sum total of the Department’s case in this
matter – which was upheld by the court – was that
the
Aldicarb had automatically become forfeited to the State. Though
raised as a theoretical possibility in argument on appeal, the
Department’s case on the papers was not that it should be
allowed to retain the Aldicarb pending a prosecution and conviction
of Volcano for contravening s 7, in which event it then intended
to seek a forfeiture order. If this were the Department’s
case,
there would be no basis upon which the court
a
quo
could, as it proposed to do, place the
Aldicarb at the disposal of the Department to be either forfeited or
destroyed. What is more,
that case would have required some
indication of a serious intent on the part of the Department to
proceed with criminal proceedings
against Volcano. Even an express
statement of such intention – which there was not – would
have raised the question why
no such steps had been taken during the
more than two years that had elapsed before Volcano’s
application was brought. It seems
virtually self-evident that, if the
Department seeks to employ this stratagem to retain contravening
goods, a prosecution must follow
within reasonable time which,
prima
facie
, two years is not (cf eg
Choonara
v Minister of Law and Order
1992 (2) SACR 239
(W) at 246a-d and Hiemstra,
Suid-Afrikaanse
Strafprosesreg
, 6 ed (by Kriegler and Kruger)
at 54).
[14] The conclusion I have come to on the first issue
renders it unnecessary to consider the second issue as formulated by
the parties,
namely, whether Volcano can lawfully possess the
Aldicarb in this country, even for purposes of export. Suffice it to
say that, because
the option afforded to an illegal importer by
s 16(6)(a) is available to Volcano, it can lawfully do whatever
is necessary to
exercise that option. Conversely, the Department and
the registrar are obliged to do what they normally do to enable an
illegal importer
to exercise that option.
[15] It is therefore ordered that:
(a) The appeal is upheld with costs, including those
consequent upon the employment of two counsel.
(b) The order of the court
a quo
is set aside and in its stead the following
order is made:
‘
(i) The respondents are
directed to do all things necessary to enable the applicant to export
the two consignments of Aldicarb pesticide
in terms of s 16(6)(a)(i)
of the Act.
(ii) The first respondent is ordered to pay the
applicant’s costs, including those consequent upon the
employment of two counsel.’
………………
.
F D J BRAND
JUDGE OF APPEAL
Concur
:
HARMS ADP
PONNAN JA
MAYA JA
KGOMO AJA