Volcano Agroscience (Pty) Ltd v Minister of Agriculture and Another

Volcano Agroscience (Pty) Ltd imported two consignments of Aldicarb pesticide from China in 2003. Aldicarb constitutes an ‘agricultural remedy’ under the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947 and must be registered before importation or sale. The consignments were unregistered and were seized by officials of the Department of Agriculture acting under the registrar. At least part of one consignment was sold in South Africa in contravention of the Act. No criminal charges were brought against Volcano for over two years after the seizure. Volcano applied to the Durban High Court for return of the consignments or, alternatively, permission to export them under s 16(6)(a) of the Act. The High Court dismissed the application, holding that Volcano could not rely on s 16(6)(a) because it had also contravened other provisions of the Act. Volcano appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order directing the respondents to do all things necessary to enable Volcano to export the two consignments of Aldicarb in terms of s 16(6)(a)(i) of Act 36 of 1947. The Minister of Agriculture was ordered to pay the applicant’s costs, including the costs of two counsel.

The case clarifies the proper interpretation of s 16(6)(a) of the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947. It confirms that illegal importers of unregistered agricultural remedies retain a statutory right to elect export rather than forfeiture or destruction, unless and until forfeiture is ordered by a court following conviction. The judgment limits administrative overreach by the registrar and reinforces the principle that forfeiture is not automatic but must be authorised by a court.