Volcano Agroscience (Pty) Ltd v The Minister of Agriculture

Volcano Agroscience imported two consignments of Aldicarb pesticide from China in early 2003. Aldicarb is an agricultural remedy as defined in the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947. The pesticide had not been registered under section 3 of the Act prior to importation, rendering the importation illegal under section 16(1). The Department of Agriculture, acting under delegation of the registrar, seized both consignments which remained in a warehouse under the Department's control. It was undisputed that at least the first consignment had been sold by Volcano to a distributor in Polokwane in contravention of section 7 of the Act, and part of it was resold to a farming operation for illegal use. Criminal charges were brought against the distributor but not against Volcano. About two years after seizure, Volcano applied to the Durban High Court for return of the consignments or alternatively to be allowed to export them to Zimbabwe under section 16(6)(a) of the Act. The High Court dismissed the application with costs.

• Whether an illegal importer who contravened section 16(1) of the Act could exercise the option under section 16(6)(a) to export the agricultural remedy, despite also contravening sections 3 and 7 of the Act
• Whether the registrar had an automatic right to forfeit or destroy agricultural remedies imported in contravention of sections 16(1) and 7 of the Act
• Whether Volcano could lawfully possess the Aldicarb for purposes of export despite the contraventions

The appeal was upheld with costs, including costs for two counsel. The High Court's order 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 pesticide in terms of section 16(6)(a)(i) of the Act. The Minister of Agriculture was ordered to pay Volcano's costs, including those for two counsel.

Where an agricultural remedy has been imported in contravention of section 16(1) of Act 36 of 1947, the illegal importer is entitled to exercise the option under section 16(6)(a)(i) to export the remedy at their own expense, regardless of whether other provisions of the Act (such as sections 3 or 7) have also been contravened. The registrar only obtains power to forfeit or destroy such remedies under section 16(6)(a) if the importer fails to exercise the export option or is unable to do so. Forfeiture based on contraventions of section 7 can only occur through prosecution, conviction, and a court order under section 18(2), not through automatic administrative action. The jurisdictional fact triggering section 16(6)(a) is solely that importation occurred contrary to section 16(1); no additional contraventions of the Act exclude the importer from exercising this option.

The court observed that if the Department wished to rely on pending criminal proceedings to justify retention of seized goods, there must be some indication of serious intent to prosecute, and prosecution must follow within a reasonable time. The court noted that prima facie, two years is not a reasonable time, citing Choonara v Minister of Law and Order 1992 (2) SACR 239 (W) and Hiemstra's Suid-Afrikaanse Strafprosesreg. Brand JA also noted in passing that the purpose of section 16(6)(a) is clearly not to penalize, but to ensure that unregistered substances are not allowed into the Republic, and once in the Republic, to ensure they are safely and expeditiously removed or destroyed.

This case provides important guidance on the interpretation of section 16(6)(a) of the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947. It clarifies that the option afforded to illegal importers to export unregistered agricultural remedies is not defeated by additional contraventions of the Act. The judgment reinforces that administrative forfeiture powers are limited and that criminal prosecution and court-ordered forfeiture under section 18(2) are necessary where the State seeks to permanently deprive an illegal importer of goods beyond the remedies in section 16(6)(a). The case also emphasizes the need for timely prosecution where the State relies on pending criminal proceedings to justify retention of seized goods.