COURT VICTORY: High Court blocks Agri Minister's foot-and-mouth vaccine prohibition

The Pretoria High Court has granted an order that Foot-and-Mouth Disease vaccines may be procured and administered privately, without state veterinary involvement. The Minister of Agriculture was also interdicted from interfering in private commercial relations of those who lawfully import FMD vaccines into South Africa.

The order, in favour of Sakeliga, SAAI, and Free State Agriculture, confirms that owners and managers of cloven-hooved livestock may independently procure and administer lawfully obtained FMD vaccines.

The court found that the Minister of Agriculture, his Director-General, and the Director of Animal Health had "vehemently opposed" the application, yet “failed to indicate any substantive defence,” “engineered delays in having the matter heard and adjudicated upon”, and that their conduct “calls for some sanction from the court.” Describing the Minister’s section 10 scheme as “vexed,” the court found that it did “not provide for any controlled purpose or for the improvement of animal health.”

Sakeliga expresses our appreciation for the collaboration of our partners in the litigation, as well as the support from other organised industry groups, individual farmers, and others who made the outcome possible.

What the order means

Thanks to the order, combating FMD with vaccination is now possible for both the private sector and the state simultaneously, rather than only for the state.

1. Procuring vaccines: Farmers, feedlots, dairy operations, and related agri-businesses now have a court-protected route to procure approved FMD vaccines from lawful importers, manufacturers, or their agents. No participation in the state’s section 10 scheme is required.
2. Administering vaccines: They may also administer those vaccines to their livestock under the notification and reporting conditions set out in the order (e.g., at least 5 days' prior written notice to the Provincial Director before vaccination, and notice within 14 days after vaccination). Again, no participation in the state’s section 10 scheme is required. 
3. No commercial interference with vaccines: The order further interdicts the Minister of Agriculture, the Director-General, and the Director of Animal Health from interfering in the commercial relations of those who lawfully import FMD vaccines and their international suppliers. (While no finding on alleged wrongdoing was made in the urgent proceedings, the interdict springs from evidence put forward by the applicants that the Minister or his associates had interfered in an importation agreement reached by a local animal vaccine importer and an Argentinian vaccines manufacturer.)
4. State FMD efforts unhampered: Existing measures pertaining to the movement of livestock and the reporting of suspected FMD incidents are left undisturbed, and the State retains its discretion to allocate vaccine that it has itself procured. As recorded by the court, “The State may avail FMD vaccine to the private sector for private administration in accordance with the terms herein, but is not obliged to do so, and “nothing in this order deprives any owner/manager of livestock from seeking assistance from the state or a private veterinarian.”

Litigation an appropriate response to unlawful state conduct

The judgment vindicates what the applicants have argued from the outset: that there is no lawful impediment to livestock owners and managers obtaining approved FMD vaccines and administering those to their animals. In fact, the order handed down is exactly the proposed order as tendered by the applicants during proceedings.

Notably, the court restated the foundational principle that anchored the application: "It is trite that any private person may do anything that is not prohibited by law." A policy or a practice, the court added, "does not qualify as a law."

Importantly, no permission from the Minister or other state officials is required for private FMD vaccination efforts, neither under the flawed section 10 scheme nor otherwise.

Court findings against the Minister of Agriculture

The judgment records that:

• The Minister and other respondents “were required to indicate a prohibition with the force of law,” such as under subsection 1(a) of the Animal Diseases Act for “general proclaimed measures.” However, “the respondents did not point to any such … measures. This omission is glaring.”
• The state respondents were "hard-pressed to show a basis" for their contention that only the government could attend to FMD vaccinations. “Hence,” the court found, referring to the Minister’s belated section 10 scheme, “the haste to Gazette a prohibition for privately administered vaccination of livestock." (Under the Minister’s section 10 scheme, livestock owners and veterinarians would have been prohibited from privately administering vaccines unless they first obtained state permission.)
  
• The court rejects the state's framing of private vaccination as something that would obstruct government efforts. In fact, the court held that “interim relief would not impact negatively upon the [State parties’] exercising of their obligations in curtailing the FMD" but "would assist them in the fight against FMD."

In deciding on costs, the court noted the engineering of delays and the lack of substantive defence by the respondents: “Such conduct calls for some sanction from the court. Nevertheless, the applicants do not seek any punitive cost order.” In the circumstances, the court ordered the Minister of Agriculture, the Director-General, and the Director of Animal Health to pay the costs of the application on a party-and-party scale, including the costs of two counsel on scale C (the highest scale in terms of the court rules) and the costs of the failed mediation.

Further litigation

The order obtained today is interim relief, pending the filing of a full review application during the course of June 2026. Sakeliga, SAAI, and Free State Agriculture will now proceed with this full review application to secure final relief that sets aside the Minister’s and other respondents’ attempted unlawful prohibition of private FMD vaccine procurement and administration.

While the applicants will pursue the matter in court as far as necessary, it would be a welcome development if the Minister and other state parties took prudent steps to avoid such necessity.

Resources

• Court Order