REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: c., kJb CASE NO.: 2026-047152
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED: '-
?~- '2 ' ').A> J.4
DATE (
In the matter between:
SAKELIGA NPC
SUIDER-AFRIKA AGRI INISIATIEF NPC
FREE STA TE AGRICULTURE
and
MINISTER OF AGRICULTURE
DIRECTOR-GENERAL
AGRICULTURE
DEPARTMENT OF
DIRECTOR OF THE DI RECTO RA TE OF ANIMAL
HEALTH OF THE DEPARTMENT OF
AG RIC UL TURE
MINISTER OF HEAL TH
SOUTH AFRICAN HEAL TH PRODUCTS
REGULA TORY AUTHORITY
DESIGN BIOLOGIX CC
First Applicant
Second Applicant
Third Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
2
DUN EV AX (PTY) LTD Seventh Respondent
AGRICULTURAL RESEARCH COUNCIL Eighth Respondent
ONDERSTEPOORT BIOLOGICAL SOC LTD Ninth Respondent
MINISTER OF COOPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS Tenth Respondent
HEAD OF NATIONAL DISASTER MANAGEMENT Eleventh Respondent
CENTRE
PRESIDENT OF THE REPUBLIC OF SOUTH Twelfth Respondent
AFRICA
JUDGMENT
VAN DER WESTHUIZEN, J
[1] The applicants launched an application relating to the outbreak of the
Foot-and-Mouth Disease (FMD) in the Republic of South that led to the
declaration of a National Declaration of Emergency. The application
commenced as an urgent application. The applicants seek relief on an
interim basis pending the institution of proceedings for a declarator to be
instituted within a specified period.
[2] The interim relief sought relates to an interdict to the private procurement
and self-administering of FMD vaccines.
[3] The application is vehemently opposed by the first, second and third
respondents. The sixth, seventh, tenth eleventh and twelfth respondents
filed notices to abide. Initially the eighth and ninth respondents filed
notices of provisional opposition and explanatory affidavits. Subsequent
to the applicants filing a with prejudice tender, the eighth and ninth
respondents gave notice to abide.
3
[4] After the matter was enrolled for the hearing of the application, the matter
stood down by agreement between the parties in an endeavour to follow
a mediation process. The latter was unsuccessful, however, the
applicant then made the with prejudice tender.
[5] When the matter was called on the agreed date for hearing the
application , lead counsel for the first, second and third respondents
indicated that a hastily drafted scheme was to be Gazetted during that
week. For that reason, the matter stood down and time limits were set
for the publishing of the proposed scheme, and leave was granted to the
parties to supplement their papers. Those arrangements were contained
in an order of court. A new date was determined for the hearing of the
application. On the new arranged date, new lead counsel for the first,
second and third respondents requested a lengthy postponement of the
matter. It was submitted by lead counsel that publication of the scheme
had taken place, but that the said respondents required time to consider
comments received on the published scheme to finalise the scheme and
republish it. The applicants were unwilling to agree to the postponement.
In view of the fact that the matter was of National concern, and that
comments were received from the public that required consideration and
inclusion in the to be Gazetted Scheme, I deemed it fit to grant a limited
postponement and directed new dates for publication and the hearing of
the matter. This was recorded in an order that was granted.
[6] The matter was then heard on the new date set and argument on behalf
of the parties was received. Although the eighth and ninth respondents
earlier indicated their abiding by the court's decision , it was emphatically
submitted during the oral submissions on their behalf that they accepted
the applicants' with prejudice tender and supported it. It was submitted
that the said tender was the result of the failed mediation proceedings,
that the said tender was the result of the failed mediation proceedings,
which then led to them indicating to abide by the court's decision.
[7] At this point, it is to be noted that the first second and third respondents
had not set out a defence in their answering affidavits , hence the belated
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request for an indulgence to publish the proposed scheme referred to
earlier. No other defence was pied other than that the newly Gazetted
scheme constituted a defence.
[8] The applicants' resort to this application emanated from the first, second
and third respondents' adamant stance that it was in the government's
realm to contain the FMD outbreak and that only government could
attend to the vaccinations of the livestock affected thereby. Those
respondents were hard pressed to show a basis for that contention in
the Animal Diseases Act or in the Regulations promulgated thereunder.
Hence the haste to Gazette a prohibition for privately administered
vaccination of livestock.
[9] The applicants contended that the government's stance was an
egregious clinging to "control" the administering of vaccines to affected
livestock, which highlighted the clear misconception of the legal position
that was irrational, particularly in view of the fast spreading of the FMD.
[1 O] Although the applicants acknowledge the role to be played by the
government in controlling the spread of FMD, it required assistance in
that endeavour, which the applicants were eager to provide. The
applicants' intention was not to usurp that role, but to supplement it.
[11] Further in this regard, the applicants indicated that there is an unlimited
supply of suitable vaccines available for lawful import and sale to private
livestock owners. The applicants do not intend to bypass the stipulated
requirements for registration of the vaccines so available. They do not
intend to become importers or manufacturers of said vaccines
themselves. They would purchase such from role-players who have
followed the ordinary and lawful route to import and manufacture the
vaccines, in line with the prerequisite procedures.
[12] On behalf of the applicants, it was submitted that the fear on the part of
the respondents to allow privately administered vaccination of FMD,
5
would result in a lack of record-keeping and reporting, was unfounded.
The applicants submitted that the legislative framework in that regard
was already in place. In that regard, regulation 18 of the Animal Diseases
Regulations require such recording and reporting. It was contended on
behalf of the applicants that the said tender codified those requirements.
[13] It is trite that any private person may do anything that is not prohibited
by law.1 The said respondents were required to indicate a prohibition
with the force of law, such as an Act, or Regulation or any validly
proclaimed control measure in terms of section 9 of the Animal Diseases
Act. Section 9 does not in itself provide a prohibition. That section in
subsection 1 (a) provides as follows:
"The Minister may for any controlled purpose prescribe general
control measures, or particular control measures in respect of
particular animal diseases and parasites."
[14] The applicants contend that the Minister had not proclaimed any such
general measure.2 The said respondents did not point to any such
general proclaimed measures. This omission is glaring. The only
reference that the said respondents seek to rely upon is contained in an
annexure "AA2." to their answering affidavit. That document is at best a
proposal to the Cabinet in support of the declaration of a National
Disaster. It has not found its way to a publication in the Government
Gazette and it is clearly endorsed as a "secret" document. From the
wording it is gleaned that it is not a "control measure" as contended for.
Neither does the document proffer for any prohibition.
[15] The said respondents attempted to contend that section 20 of the Animal
Diseases Act contains a prohibition of some sort. That section relates to
1 Minister of Water and Sanitation et al v U>tter N. 0. and two other similar cases 2023(4) SA
434 (CC) at [36]; cf. SCA judgment in this matter; Minister of Finance v Oakbay Investments
(Pty) Ltd et al 2018(3) SA 515 (GP) (54]
(Pty) Ltd et al 2018(3) SA 515 (GP) (54]
2 See Interpretation Act, 35 of 1957, sec 16
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"limitations on investigations, experiments and research with, and
manufacture and evaluation of, certain products." In terms, that section
does not apply in casu. Furthermore, that section does not find
application in instances where such substances are controlled under the
Medicines and Related Substances Control Act, 101 of 1965. The FMD
vaccines currently manufactured or imported are imported or
manufactured under section 21 of that Act.
[16) It is to be noted that a policy or a practice to not permit privately
administered vaccinations does not qualify as a law.
[17] The applicants contended that the published Animal Diseases
Regulations3 do not prohibit privately administered vaccination. They
further contended that those Regulations envisaged privately
administered vaccinations in respect of FMD. The applicants referenced
the provisions of regulation 11 (1) where duties are imposed upon
owners and managers regarding the health of animals and their clear
obligations in that regard. They further referred to Table 2 of the
Regulations. That Table only refers to controlled areas. What happens
in uncontrolled areas is not stipulated, nor can it be inferred. Thus, the
applicants submitted that privately administered vaccinations outside
proclaimed control areas are not prohibited. The applicants further
contended that the Table only refers to cattle, sheep and goats. No
mention is made of pigs. Hence privately administered vaccination of
pigs is not prohibited.
[18] Following from the aforesaid, the applicants contend that there is no
general prohibition to privately administered vaccinations.
[19] In respect of the said respondents' apparent relying on the provisions of
the newly Gazetted scheme, the applicants contended that the said
scheme does not outright prohibit privately administered vaccinations.
3 GN R2026, Government Gazette R10469 of 26 September 1986
7
At best it provided for voluntary participation in the scheme. Where such
participation was voluntary, those participants were obliged to comply
with the stipulated requirements. It is to be noted that, as recorded
earlier, where there is no specific promulgated law against privately
administered vaccinations, such privately vaccinations may be
undertaken.
[20) Furthermore, the newly Gazetted Scheme was made in terms of the
provisions of regulation 10. That regulation provides in sub-regulation
(1) as follows:
"The Minister may by notice in the Gazette establish a scheme in
respect of any controlled purpose or for the improvement of
animal health."
[21) The vexed new scheme so Gazetted, does not provide for "any
controlled purpose or for the improvement of animal health." At best it
provides for voluntary participation in the Gazetted Scheme.
[22] The appropriate regulation for any control measures, including any
prohibition, would be regulation 9, as recorded earlier.
[23] No substantive argument was provided on behalf of the said
respondents to indicate clearly where such prohibition was Gazetted into
law, and no convincing argument was presented on the said
respondents' behalf. Lead counsel for the said respondents was
hampered in his argument in view of the lack of evidence in that regard.
[24] The applicants only seek interim relief as foreshadowed in their tender.
In that regard they are obliged to indicate a prima facie right, prospects
of success in the intended declarator to be sought in due course,
alternatively in any applicable review proceedings, reasonable
apprehension of irreparable harm or actual harm suffered, and where
the balance of convenience would best lie.
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[25] From the discussion earlier in respect of the absence of a lawful
prohibition to privately administered vaccination of the FMD vaccine, it
is apparent that the applicants have proven a prima facie right to interim
relief. The prospects of success in respect of a declarator or review
appears to be prima facie established. The apprehension of irreparable
harm follows where the FMD is spreading rapidly outside of the
proclaimed controlled areas. In my view, the applicants have shown that
the balance of convenience clearly lies with them. The interim relief
would not impact negatively upon the said respondents' exercising of
their obligations in curtailing the FMD. To the contrary, it would assist
them in the fight against FMD.
[26] There remains the issue of costs. There is no reason why the costs
should not follow the event. The applicants, in their notice of motion,
sought a costs order against such party that opposes the application.
Only the first, second and third respondents opposed the application.
The eighth and ninth respondents did not formally oppose the application
as recorded earlier. No relief was sought by them against the applicants
in their explanatory affidavits. As recorded, at the first appearance, the
eighth and ninth respondents indicated their intention to abide the court's
decision. Despite the indication to abide by the court's decision, the
eighth and ninth respondents were represented by counsel and all
subsequent appearances. Such appearances were voluntarily
undertaken. At the conclusion of the hearing of the application, lead
counsel for the eighth and ninth respondents prayed for a cost order in
favour of the eighth and ninth respondents. There is no merit in that
request. The representation at the hearings of the eighth and ninth
respondents were voluntary and no obligation existed upon them to be
so represented. It is apparent from all the above, that the first, second
and third respondents failed to indicate any substantive defence to the
and third respondents failed to indicate any substantive defence to the
application and engineered delays in having the matter heard and
adjudicated upon. The eventual scheme that was Gazetted did not
supply any substantive defence as recorded earlier. Such conduct calls
9
for some sanction from the court. Nevertheless, the applicants do not
seek any punitive costs order against the first, second and third
respondent. In respect of the reserved costs order granted on 24 March
2026 no order stands to be made in view of what is recorded in this
paragraph.
(27] At the concluding of the argument on behalf of the applicants, a
proposed order in terms of the tender was presented. I intend to grant
that order.
I grant the following order:
1. The order set out in the document marked XYZ appended to this
judgment is granted.
PRETORIA
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On behalf of Applicants: J G C Hamman
H Scholtz
Instructed by: KI/W INC
On behalf of First, Second and Third Respondents: (Initially) J de Beer SC
Instructed by:
On behalf of Eighth and Ninth Respondents:
Instructed by:
Date of hearing:
Date of Judgment:
K Manthe
(Later) T F Mathibedi
SC
K Manthe
State Attorney. Pretoria
L J van Tonder SC
M Heystek SC
Kisch Africa Inc
11 May 2026
25 May 2026