SA farmers can independently vaccinate their livestock against FMD, court rules

Judge CJ van der Westhuizen of the Gauteng High Court in Pretoria handed down an order on 25 May confirming that farmers, feedlots and dairy operations can source and administer approved foot-and-mouth disease (FMD) vaccines privately and independently, without participating in the state’s vaccination scheme or needing ministerial permission.

The order, granted in favour of Sakeliga, Suider-Afrika Agri Inisiatief (Saai) and Free State Agriculture, offers interim relief and is pending a full review application to be filed within 20 days.

The minister of agriculture, John Steenhuisen, the department’s director-general, Mooketsa Ramasodi, and the director of animal health were also interdicted from interfering in commercial relationships between lawful FMD vaccine importers and their international suppliers, following evidence before the court that interference had occurred in a supply agreement between local importer Design Biologix CC and Argentine manufacturer Biogénesis Bagó.

At the heart of the ruling is a basic principle of South African law, that any private person may do anything not prohibited by law, and that a government policy or practice does not amount to a legal prohibition. The court found that when required to point to a statutory prohibition on private FMD vaccination, the respondents could not do so. “This omission is glaring,” wrote Van der Westhuizen.

How we got here

The case arose after the state maintained that containing the FMD outbreak was exclusively within the government’s domain. The applicants disputed this, arguing that private vaccination would supplement rather than undermine state efforts. The matter was twice stood down, first to allow a Section 10 scheme to be gazetted, then for public comments on that scheme to be processed.

When the matter was ultimately argued on 11 May, the court found that the gazetted scheme did not “provide for any controlled purpose or for the improvement of animal health” and offered no lawful prohibition on private vaccination.

The court found that the respondents had “engineered delays in having the matter heard and adjudicated upon” and that their conduct “calls for some sanction from the court”, wrote Van der Westhuizen. Costs were awarded against the minister, director-general and director of animal health on Scale C, the highest scale under the court rules, including the costs of two counsel and the failed mediation.

What farmers can now do

The owners and managers of cloven-hooved livestock can procure FMD vaccines from lawful importers, manufacturers, or their agents and administer them independently, subject to the conditions in the order.

At least five days before vaccinating, they must notify the relevant provincial director of veterinary services or state veterinarian in writing, providing details of the location, the animals involved, the person performing the vaccination, and cold chain protocols.

Within 14 days of vaccination, an affidavit must be submitted to the state veterinarian detailing compliance with the relevant animal disease regulations.

The state’s vaccination programme has been left entirely intact. Existing livestock movement restrictions and FMD reporting obligations are undisturbed, and the state retains full discretion over the allocation of the vaccines it has procured. Nothing in the order prevents farmers from seeking state or private veterinary assistance if they choose.

In a statement on 25 May, Sakeliga said the order meant that “combating FMD with vaccination is now possible for both the private sector and the state simultaneously, rather than only for the state”.

Saai welcomed the judgment but tempered its statement with an acknowledgement of the human cost of the prolonged outbreak.

“After more than a year of uncontrolled spread of this disease, it finally offers hope that the involvement and initiative of the private sector can provide the critical capacity needed to stop the disease,” the organisation said in a statement on Monday. “Our hearts go out to those for whom it came too late, and who have already suffered major losses or even lost everything.”

The scheme’s framework

Steenhuisen noted the order, in a statement on Monday, but said its practical effect “is now largely overtaken by the gazetted Section 10 animal health scheme, which already provides a lawful framework for participation by private industry role-players.”

He said approximately 13.5 million FMD vaccine doses had been procured since February, with allocations made to the Milk Producers’ Organisation, feedlots, stud breeders and commercial farmers.

“Our objective remains to vaccinate at least 80% of the national cattle population with two doses of vaccine as swiftly as possible as part of South Africa’s pathway toward achieving World Organisation for Animal Health-recognised ‘FMD-free with vaccination’ status. This would unlock significant export opportunities for South Africa’s red meat sector,” said Steenhuisen.

The legal fight is not over

The order is explicitly interim. Sakeliga, Saai and Free State Agriculture must file a full review application in June to permanently set aside the state’s attempted prohibition. On timelines and costs for farmers wishing to procure vaccines privately, Saai’s CEO, Francois Rossouw, said: “This is absolutely new territory. We will have to hear from Biogenesis and Dunevax about how they can assist farmers to get the vaccine into their hands”.

Sakeliga spokesperson Anton Meijer said the review application should not be regarded as a foregone conclusion. The state could still change course and advance new arguments, he said, but nothing before the court to date pointed to legal grounds for a different outcome.

“We have to wait and see whether the minister intends to oppose a further application at all,” said Rossouw. “If he does, he will have to find grounds somewhere, because, to date, he has been able to put nothing before the court.”

The Department of Agriculture spokesperson, Joylene van Wyk, confirmed awareness of the order, but noted: “As this matter involves active and ongoing litigation with further proceedings scheduled for June, we must thoroughly consult with our legal advisers before making any public statements.” DM