THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

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)

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
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Case number:  641/06
In the matter between

VOLCANO AGROSCIENCE (PTY) LTD
APPELLANT

and

THE MINISTER OF AGRICULTURE

FIRST RESPONDENT
ERNEST MOKANTLA NO

SECOND RESPONDENT

From:
The Registrar, Supreme Court of Appeal
Date:
2007-11-26
Status:
Immediate

1.
On 26 November 2007 the SCA gave judgment in this appeal
which turned on the interpretation of s 16(6)(a) of the Fertilizers, Farm
Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947.
Broadly stated, the section affords an illegal importer of agricultural
pesticides and other substances controlled by the Act, the option to
remove the substance from the Republic or to have it forfeited to or
destroyed by the State.
2.
The appellant in this matter (Volcano) imported a controlled
pesticide called Aldicarb illegally and subsequently purported to sell it, in
further contravention of the Act, to a distributor in South Africa. In the
light of these contraventions, the Aldicarb was seized and retained by
the Department of Agriculture. Volcano then brought an application
based on s 16(6)(a) of the Act against the Minister responsible for that
Department in the Durban High Court for an order which would enable it
to export the Aldicarb to Zimbabwe.

3.
The Durban High Court concluded, however, that on a proper
interpretation of s 16(6)(a) the option afforded by the section is not
available to an illegal importer who contravened some other provision of
the Act as well. Since Volcano also sold the Aldicarb in contravention of
another provision of the Act, so the High Court concluded, it could not
rely on the section with the result that the Aldicarb automatically became
forfeited to the State.
4.
On appeal the SCA did not agree with this interpretation. The
purpose of s 16(6)(a), so the court held, is not to penalise the illegal
importer but to prevent the contravening substance from entering the
Republic. Consequently, the option afforded by the section is available
to every illegal importer in the position of Volcano and it matters not that
some other provision of the Act had been contravened as well. In the
result the Department of Agriculture was directed to do all things
necessary to enable Volcano to exercise its option in terms of s
16(6)(a)(i) of the Act by exporting the Aldicarb to another country.