Free State Agriculture, working with Sakeliga and the Southern African Agri Initiative (SAAI), has won a major interim victory for farmers in the Pretoria High Court after the court found that there was no clear legal bar preventing owners and managers of livestock from privately procuring and administering foot and mouth disease (FMD) vaccines. Judge CJ van der Westhuizen found that government had failed to show where any such prohibition existed in law, warned that departmental policy is not comparable to the law, and later held that Minister of Agriculture and former leader of the Democratic Alliance (DA) John Steenhuisen through his department had failed to indicate any substantive defence and had “engineered delays” in having the matter heard.

The order now allows farmers to procure and administer lawfully imported or manufactured FMD vaccines and further warned government to “not interfere in relation to commercial relations of those who lawfully import FMD vaccines”.

It is a significant moment for Free State Agriculture, an AgriSA member organisation that broke from the posture of deference too often seen in organised agriculture, and that joined Sakeliga, a public-interest litigant on commercial matters, and SAAI in forcing the state back within the limits of the law.

AgriSA is the national umbrella body for organised commercial agriculture, a structure that brings together nine provincial affiliates, about 1 000 farmer associations, and roughly 14 000 fully paid-up individual farmer members, commodity bodies, and corporate agribusiness members.

AgriSA is meant to speak for commercial farming, yet when farmers needed urgent access to FMD vaccines, eight of AgriSA’s nine provincial affiliates appeared perfectly willing to stand by and sacrifice livelihoods in order to protect Steenhuisen’s “national herd”. Free State Agriculture did not. It broke ranks, joined Sakeliga and SAAI in court, and stood with farmers who refused to watch their herds, businesses, and futures be sacrificed by Steenhuisen to a broken bureaucratic theory of state control.

There is a deep contradiction in Steenhuisen’s position. The DA presents itself as the party of markets, private initiative, and limits on state power, yet  its former leader, now sitting in one of the country’s most visible economic ministries, has fought this case as though the first duty of agriculture policy is to preserve state control. This is the same contradiction The Common Sense has reported repeatedly in its coverage of the FMD crisis, from Steenhuisen’s rejection of what he called a vaccine “free-for-all” to his insistence on state-led control, to the wider criticism that his handling of FMD has placed him at odds with a core DA constituency. Rather than opening the way for farmers to act lawfully under rules, Steenhuisen’s department tried to hold the line for a vaccine ban that the court found had no legal weight.

Judge van der Westhuizen found that in any free society “any private person may do anything that is not prohibited by law”. Government, therefore, in order to uphold its ban on private procurement of FMD vaccines, had to point to an actual prohibition “with the force of law”. Van der Westhuizen found that the department could not point to a properly proclaimed control measure that banned private vaccination, stating, “A policy or a practice to not permit privately administered vaccinations does not qualify as a law.”

Free State Agriculture’s Vice-President Friedl von Maltitz, who spoke to The Common Sense, said, “We consider the judgement to be a victory for cattle and pig farmers, in particular, but all farmers in general. A victory for the right to protect our own animals and businesses and against inefficient centralised government control.

“We have been sitting on the sidelines waiting for the state to fight the virus without the necessary plan, equipment or people.

“Our plan for the Free State is to: demarcate zones and smaller compartments; start a coordinated and systematic vaccination drive in each zone; [and] register a lab with the necessary equipment to do tests compliant with WOAH standards to maintain FMD-free status with vaccination.

“We plan to work with our MEC and chief state vet to coordinate the commercial and communal vaccinations and reporting.

“The state and farmers must work together to fight this disease.”