The Pretoria High Court has granted a landmark interim order that Foot-and-Mouth Disease (FMD) vaccines may be procured and administered privately, without State veterinary involvement.

The court also interdicted Agriculture Minister John Steenhuisen from interfering in private commercial relations of those who lawfully import FMD vaccines into South Africa.

The order, in favour of industry bodies Sakeliga, SAAI and Free State Agriculture, confirms that owners and managers of cloven-hooved livestock may independently procure and administer lawfully-obtained FMD vaccines.

The High Court found that Steenhuisen, the director-general (DG) of the Department of Agriculture (DoA) and the director of animal health at the DoA had "vehemently opposed" the application, yet “failed to indicate any substantive defence”, “engineered delays in having the matter heard and adjudicated upon”, and that their conduct “calls for some sanction from the court”.

In reference to government’s Section 10 scheme which involves voluntary FMD vaccination under State supervision, the High Court described the scheme as “vexed” and said it did not provide for any controlled purpose or for the improvement of animal health. 

Sakeliga explains that, thanks to the court order, combating FMD with vaccination is now possible for both the private sector and the State simultaneously, rather than only for the State.

Farmers, feedlots, dairy operations and related agri-businesses now have a court-protected route to procure approved FMD vaccines from lawful importers, manufacturers or their agents. No participation in the State’s Section 10 scheme is required.

They may also administer those vaccines to their livestock under the notification and reporting conditions set out in the order – written notice to the provincial director five days prior and 14 days after vaccination. 

Sakeliga affirms that there may be no commercial interference with vaccines. “The court order interdicts the Agriculture Minister, the DG and the director of animal health from interfering in the commercial relations of those who lawfully import FMD vaccines and their international suppliers.

“While no finding on alleged wrongdoing was made in the urgent proceedings, the interdict springs from evidence put forward by the applicants that the Minister or his associates had interfered in an importation agreement reached by a local animal vaccine importer and an Argentinian vaccines manufacturer,” Sakeliga explains.

Meanwhile, existing State FMD eradication efforts remain unhampered. Existing measures pertaining to the movement of livestock and the reporting of suspected FMD incidents are left undisturbed, and the State retains its discretion to allocate vaccine that it has itself procured.

As recorded by the court: “the State may avail FMD vaccine to the private sector for private administration in accordance with the terms herein, but is not obliged to do so”, and “nothing in this order deprives any owner/manager of livestock from seeking assistance from the State or a private veterinarian.”

Sakeliga says the judgment vindicates what the applicants have argued from the outset: that there is no lawful impediment to livestock owners and managers obtaining approved FMD vaccines and administering those to their animals. In fact, the order handed down is exactly the proposed order as tendered by the applicants during proceedings.

Importantly, no permission from the Minister or other State officials is required for private FMD vaccination efforts, neither under the “flawed” Section 10 scheme nor otherwise.

The court ultimately rejected the State's framing of private vaccination as something that would obstruct government efforts. In fact, the court held that “interim relief would not impact negatively upon the [State parties’] exercising of their obligations in curtailing the FMD" but "would assist them in the fight against FMD”.

In deciding on costs, the court noted the engineering of delays and the lack of substantive defence by the respondents:

“Such conduct calls for some sanction from the court. Nevertheless, the applicants do not seek any punitive cost order,” the court said.

In the circumstances, the court ordered Steenhuisen, the DG and the director of animal health to pay the costs of the application on a party-and-party scale, including the costs of two counsel on scale C (the highest scale in terms of the court rules) and the costs of the failed mediation.

Importantly, Sakeliga says, the order obtained today is interim relief, pending the filing of a full review application during the course of June.

Sakeliga, SAAI and Free State Agriculture will now proceed with this full review application to secure final relief that sets aside the Minister’s and other respondents’ attempted unlawful prohibition of private FMD vaccine procurement and administration.

“While the applicants will pursue the matter in court as far as necessary, it would be a welcome development if the Minister and other State parties took prudent steps to avoid such necessity,” Sakeliga concludes.

GOVERNMENT RESPONSE
Steenhuisen acknowledged the interim order handed down by the High Court, saying that it now largely overtakes the Section 10 scheme which “already provides a lawful framework for participation by private industry roleplayers in the national vaccination effort”.

He added that government has consistently supported a coordinated public-private effort to combatting FMD and remains committed to implementing the national FMD strategy through the Ministerial Task Team and the Industry Coordinating Committee on FMD.