Author: Gary Moore

Date: 19 December 2016

The Agricultural Pests Act, 1983[1] says no person shall, except with a permit, import controlled goods[2] (“any plant”, pathogen, insect, etc.,[3] or anything determined by Ministerial notice[4]).

An executive officer[5] who ascertains or suspects on reasonable grounds that controlled goods have been imported contrary to the Act or conditions of a permit or exemption[6] may—

Order the person by or for whom they were imported, or person in possession or charge of them, to: Destroy them in the manner and period determined by the officer; or remove them from the Republic as so determined; or treat, dispose of or deal with them as so determined;[7] or

Destroy them himself, after giving that person seven days’ notice of the officer’s intent to do so unless in his opinion giving notice is impracticable or destruction is urgently required);[8] or

Destroy the goods if a person refuses or neglects to carry out an order to destroy them;[9] or

Order an owner or person in possession or charge of controlled goods “descended from” such controlled goods or produced or acquired by means of them (“acquired goods”) to destroy the acquired goods or treat, dispose of or deal with them as determined, irrespective of the degree of descent or relationship concerned or connection between the controlled and acquired goods.[10]

These provisions authorise the destroying of even harmless plants, on the mere ground they were imported contrary to their import permit’s conditions. This is too drastic a penalty and has no rational relationship to the legitimate purpose of combatting pests or to a defensible vision of the public good,[11] and the Act’s criminal penalties[12] should suffice. (And by envisaging destruction of harmless plants, particularly plants belonging to third parties, the provisions also authorise arbitrary deprivations of property contrary to the Bill of Rights.[13])

A court would probably be reluctant to read redeeming wording into the provisions, because this might entail engaging in the details of law-making (an activity assigned to legislatures) and require policy decisions to be made.[14]

[1] Agricultural Pests Act 36 of 1983.

[2] Agricultural Pests Act s 3(1)(a) and (b).

[3] Or any exotic animal, growth medium, infectious thing, honey, beeswax or used apiary equipment.

[4] Agricultural Pests Act s 1(1) sv “controlled goods”.

[5] An officer designated by the Minister. Agricultural Pests Act s 1(1) sv “executive officer” read with s 2(1).

[6] The Minister may by Gazette notice determine that any controlled goods may be imported without a permit on conditions. The Minister has determined an extensive list of plants etc that may be imported without a permit subject to conditions requiring certifications, declarations or confirmations: Govt Notice R1013 of 26 May 1989.

[7] Agricultural Pests Act s 4(1)(b)(i), (ii) and (iii).

[8] Agricultural Pests Act s 4(1)(c).

[9] Agricultural Pests Act s 4(1)(d).

[10] Agricultural Pests Act s 4(1)(f) read with (b)(i) and (iii).

[11] Union of Refugee Women v Director: Private Security Industry Regulatory Authority [2006] ZACC 23 (CC) para [36]; Law Society v Minister for Transport 2011 (2) BCLR 150 (CC) para [32].

[12] Agricultural Pests Act s 13(1)(a) and (aA).

[13] Constitution, Ch 2 (Bill of Rights) s 25(1). The courts have struck down a statutory provision that SARS could sell imported goods to recover the importer’s customs debt even if belonging to a third party, as unjustifiably authorising arbitrary deprivations of property in that there was no connection between the owner and the debt. Customs and Excise Act 91 of 1964 s 114.  First National Bank of SA Ltd t/a Wesbank v Commissioner for SARS; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (7) BCLR 702 (CC).

[14] Zondi v MEC for Traditional & Local Government Affairs 2005 (4) BCLR 347 (CC) para [123].

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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