Botswana: Court of Appeal

                                    Court of Appeal Civil Appeal No. 044 of 2005

In the matter between

JELLY MAKHUMALO KHAFULANE                          1^ST APPELLANT

& PRODUCTION                                                  1^ST RESPONDENT

McNALLY JA

1.       The appellants, who live in the North East of Botswana on the Zimbabwe border, owned, between the three of them, twenty-three (23) head of cattle. On 22 September 2003 cattle thieves from Zimbabwe cut the fence between the two countries and drove a number of cattle into Botswana. One of these cattle mingled with the cattle of the appellants as they were grazing in a field.

2.      

When this became known to the first respondent he ordered that the 23 cattle be slaughtered and their carcasses burned. He did this in pursuance of the provisions of section 12 of the Diseases of Animals Act, Cap 37:01 of the Laws of Botswana, on the ground that the animals had “come into contact with any animal suspected of harbouring a disease” and the order was so made “because Botswana considers Zimbabwe to be a FMD (Foot and Mouth Disease) infected area.” (Attorney General’s letter of 9 December 2003). The appellants were offered P400 per head by way of compensation which they rejected as completely inadequate, being less than the price of a goat. The figure of P400 per head was based on what was allegedly resolved by Cabinet as recorded in a minute dated 22 February 2002.

3.      

The appellants approached the High Court by way of Notice of Motion on 30 March 2004 seeking –
(1)     

A declaration of their right to adequate compensation;
(2)      An order that the respondents should tender 24 (this should have been 23) head of cattle to replace those destroyed;
(3)      Costs on the higher scale and further or alternative relief.

4.      

The High Court dismissed the applications, with no order as to costs, on 26 November 2004. The learned judge ruled that in so far as their case was founded in delict they failed to prove negligence on the part of the Director, but they had also failed to prove the quantum of damages. They had alleged no more than that the normal value of a head of cattle was between P1 500 and P2 000.

5.       In so far as the claim under the Act was concerned, they were entitled only to P400 per head, and this amount they had rejected. He said -

“In reality the applicants have lost this case because the relief available to them is that which the Director has offered them and which they rejected.”

6.      

It seems to me, with respect, that there is no question of delict here. It is not seriously suggested that what the Director did was negligent or wrongful. The claim is simply one for compensation under the Act, and we need to examine the Act and the Regulations made under it to determine the nature of the compensation.

“The Director or any person authorized by him in writing may cause to be slaughtered any animal infected or suspected of being infected with any disease, or any animal which has been in contact with a diseased animal, or has otherwise been exposed to the infection or contagion of disease.”

8.      

Although on the papers the Zimbabwean beast was not shown to have been a “diseased animal” but only one “suspected of being infected with a disease”, one must assume, since the Director purported to act under this section, that the Botswana cattle were destroyed on the ground that they had been “exposed to the infection or contagion of disease”. Accordingly we must look to section 14 of the Act.

“(1)      No action shall lie against the government, the Director, any departmental officer or any person authorized by the Director for any act done in good faith under this Act, or for any act done in good faith in connection with the diagnosis, control, prevention or treatment of disease (including the preparation of biological products).

(I mention in passing that this subsection is another obstacle to a claim in delict).

(2)     

No compensation shall be payable in respect of any animal slaughtered for the purpose of the control of disease except –

(a)     

in the case of an animal which, when slaughtered, is found not to be infected or likely to spread infection of any disease; and

(b)     

when animals which may be infected with disease are slaughtered in order to prevent the further spread of such disease.”

10.     

It has not been suggested that sub-section (1) of section 14 operates to prevent the appellants in this case from suing for compensation under the Act. They are not suing “for an act done….” They are suing for “compensation payable” under s 14 (2) (b).

11.     

The only question remaining is the quantum of that compensation. Here, I think with respect that the learned judge a quo has been led into error as to the meaning and status of what purports to be an extract from Cabinet minutes of 22 February 2002.

12.      At the beginning of the hearing we directed Mr. Gulubane’s attention to this document, which reads in material part as follows -

“CONTROL OF FOOT AND MOUTH DISEASE OUTBREAK IN THE MATSILOJE EXTENSION AREA

The compensation for owners of animals that are killed in order to eradicate the disease be increased from P500 to P650 per animal killed irrespective of size and condition;

(2)     

individuals who own ten (10) animals or less be given the option to choose between compensation in cash or the replacement of the number of the animals killed;

(3)     

the rate of compensation to owners of animals which cross the border into neighbouring countries and later return to Botswana and are killed be increased from P300 to P400.”

The document is signed by the Clerk of the Cabinet and marked “RESTRICTED”. It seems from the papers that the Matsiloje area referred to is not the area where the appellants’ cattle were. Nonetheless the respondents sought to assert that the document bound the appellants.

13.     

We asked two questions of Mr. Gulubane –
(a)     

On what basis do the respondents contend that clause 3 of this document applies in the present circumstances rather than clause 1?
(b)      Does the Act empower the relevant Minister or the Cabinet of Botswana to pre-estimate compensation in the way that is done here?

We should perhaps have asked a third question –
(c)     

Why does clause 2 not apply, given that none of the three appellants lost more than ten head?

14.     

Mr. Gulubane was unable to answer these two questions and it is a fair assumption that he would not have been able to answer the third. He was not prepared to make any concessions, however, and this attitude is understandable. It is necessary therefore to deal with these three questions one by one, as I now proceed to do.

15.      In deciding to apply clause 3 of the Cabinet Minute and to find that P400 per head was payable by way of compensation, the learned judge said -

“Although their cattle did not cross into Zimbabwe and later returned and were killed, that paragraph is the closest to cover their situation. It essentially addresses the issue of compensation by the authorities where Botswana cattle mingle with cattle from a neighbouring country.”

16.     

With great respect I am not persuaded that that reasoning is correct. Compensation under paragraph 3 is lower than under paragraph 1. We can only assume that that is so because there is an element of possible negligence on the part of a claimant where cattle have strayed into Zimbabwe. The appellants in this case were not negligent at all. Indeed, perfectly innocent. That is a reason for not aligning the appellants in this case with such claimants. And, secondly, the appellants fit readily into the category of owners described in paragraph 1. Then cattle were killed “in order to prevent the spread of the disease” which is not significantly different from the wording of paragraph 1 which says “in order to eradicate the disease”. In my view, if the Cabinet Minute governs the situation, the appellants were entitled to P650 per head, in terms of paragraph 1.

17.     

The second question is more fundamental, and one must be conscious of the separation of powers between the Legislature, the Executive and the Judiciary. Just as the judiciary must take care not to interfere with the rightful exercise of its power by the Executive, so must the Executive be mindful of the extent of the authority allotted to it by the Legislature in any particular case.

18.     

In this instance we asked Mr. Gulubane specifically whether he could point out to us where in the Act it is stated that the power to determine the extent of compensation under the Act is delegated either to the Minister or to the Cabinet. He was unable to do so. It is true that the Act provides, in section 19, that the Minister may make regulations. It is further true that section 23 (2) of the Disease of Stock Regulations, 1926, provide for a maximum compensation of P40 per an animal slaughtered so that a post-mortem examination may be carried out (which is not the case here). But beyond that there seems to be nothing.

19.     

Mr. Gulubane was unable to indicate any such empowering section, either in the Act or in the Regulations. Nor has this Court been able to find any section. In the particular circumstance of this case, I am able to come to a conclusion without relying upon this apparent exercise of powers ultra vires the legislation. It is nonetheless a matter to which the Attorney-General might wish to address her mind.

20.     

The third question, which we did not put to Mr. Gulubane, is one which answers itself as soon as the decision is made to apply paragraph 1 of the Cabinet Minute instead of paragraph 3. Once a person qualifies under paragraph 1 for compensation, he or she becomes entitled, in terms of paragraph 2 to opt for replacement of their animals in lieu of compensation.

21.     

By a fortunate coincidence, this has always been the first prize as far as the appellants are concerned. Paragraph 2 of the prayer in the Notice of Motion dated 30 March 2004 claims an order –

“Ordering the Respondents to tender to the Applicants 24 head of cattle as replacement (for) the head that were destroyed by the respondents”.

The figure “24” is simply an error of arithmetic. The first appellant lost 10 head, the second 7 and the third 6.

22.     

I say it is fortunate that we have been able to use the provisions of paragraph 2 of the Cabinet Minute, because if it had been necessary to calculate the figure of compensation, we would have been faced with disputed facts and might well have had to dismiss the appellants’ claims on the procedural grounds that they should have proceeded by way of action rather than by notice of motion. In so doing we would have been able to rely on the many well known decisions following Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd. 1949 (3) SA 1155 (T) at 1162. See also Shereni v Moyo 1989 (2) ZLR 148 at 150 A-B.

23.     

As it is, the problem resolves itself as soon as it is clear that paragraph 1 and 2 of the Cabinet Minute are to be applied rather than paragraph 3. I stress that the Cabinet Minute is applied not as a document binding on the parties, but as a clear indication of the attitude of the respondents.

24.     

In the circumstances the appellants must succeed in their claim for replacement of their slaughtered beasts. They are entitled to their costs, though I see no basis for an award on the higher scale. Nor do I think it appropriate to make a declaration of rights in the abstract, when a concrete award of compensation is made.

25.     

The order I would make is as follows:
(1)     

The appeal is allowed with costs.
(2)      The order of the court a quo is set aside and in its place the following order is made:
(a)     

The respondents are ordered to pay compensation to the applicants in the form of replacement of their cattle destroyed, namely ten (10) head to the first appellant, seven (7) head to the second appellant and six (6) head to the third appellant;
(b)      The respondents are to pay the appellants’ costs jointly and severally, the one paying the other to be absolved.