High Court in Botswana has dismissed with costs an application by AG Nutrition Botswana to allow it to sell its Malaysian products in the country.
“In the result, the application stands to be and is hereby dismissed with costs,” Justice Abednego Tafa ruled this week.
The networking company had sought court to interdict the Botswana Medicines Regulatory Authority (BOMRA) from refusing AG Cera products entry into the country.
The product is described as ‘Natures gifts for optimal health’ with high antioxidants, skin protection, anti-cancer, cardiovascular, supports bone and joint health, anti-inflammatory, lowers sugar levels and said to be improving general health.’
BOMRA had cautioned that since the product was food and not medicine, the distributors should avoid making medicinal claims in advertising the product.
This was after BOMRA officials had taken the product from the deponent saying they had tested it and established that it is food.
AG Nutrition also sought court to order and direct that BOMRA, or any person acting through it and/or in concert with it, be interdicted from refusing the AG Cera products entry into Botswana.
They also sought relief for court to order that the AG Cera product that is currently seized at the behest of BOMRA be forthwith released to AG Nutrition in Botswana.
They had also wanted court to rule that BOMRA pay costs of the application.
The applicant on the matter, AG Nutrition is anchored on the founding affidavit of one Mokganedi Ketlhoilwe, the Managing Director of AG Nutrition.
According to the deponent to the founding affidavit, AG Nutrition has, since October 2019, been importing the product subject matter hereof.
He alleges further that at some point upon arrival of the product at Sir Seretse Khama International Airport, he was invited by Ministry of Health and Wellness officials for product assessment.
The assessment said conclusion was the product “AG Cera” was food and BOMRA has no jurisdiction over it but no evidence has been proffered to prove the allegation.
According to AG Nutrition, BOMRA officials came across flyers of people who bought the product from AG Nutrition for reselling as the business is a networking business. The flyers purported that the product cures certain medical conditions.
BOMRA makes it clear that; “importation of the product by AG Nutrition was illegal and it should not have been allowed entry into the country. The officials at the point of entry are not employees of BOMRA but of BURS and Ministry of Health and Wellness. They have no power to assess and determine a product as food or medicine. Such powers are statutorily conferred on BOMRA only.”
BOMRA’s mandate is to ensure that all medicines and related substances used in Botswana are in conformity with established criteria of quality, safety and efficacy and uphold standards for the regulatory functions value chain and ensure adherence to best practice.
They also conduct tests and analysis of medicines and inspection of privately-owned laboratories to ensure good laboratory practice as the cornerstone of compliance as well as; ensuring the safety of cosmetics and medical devices that is, ascertaining that cosmetics and medical devices companies follow regulations to keep cosmetics and personal care products as safe as possible.
Justice Tafa highlighted in the judgement that it is common cause that AG Nutrition sells or distributes the product to the public and that the product is yet to be registered.
As a matter of fact he said that it is common cause that AG Nutrition has applied for registration of the product and BOMRA has made it abundantly clear to AG Nutrition that the product is not to be imported into the country pending the determination of the application for registration.
“It would be improper, in my view, for the court once it has found that the product falls within the definition of medicines, to order the release and further importation sale and/distribution of the product pending its registration,” he pointed out.
He also stated that he is fully cognisant of the financial harm that AG Nutrition is likely to suffer while the registration process is ongoing. “However, in all circumstances, any harm AG Nutrition might suffer as a result of the enforcement of the Act is outweighed by the public interest and interests of BOMRA.”
‘‘I say this knowing very well that AG Nutrition made an undertaking to not advertise the product as containing medicinal benefits and even toned down on its claims in subsequent flyers,’’ Justice Tafa observed.
The Judge said however the bottom line is that its earlier claims have not been retracted and the public out there still believes that the product can cure ailments such as cancer and fibroids.
In the matter, Uyapo Ndadi of Ndadi Law Firm represented AG Nutrition Botswana (Pty) Ltd while Daniel Swabi of Osei-Ofei Swabi and company stood in for Botswana Medicine Regulatory Authority (BOMRA).
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.
President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.
While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.