Kelp Blue Dawn Aquaculture (Pty) Ltd v Minister of Agriculture, Fisheries, Water and Land Reform and Others (HC-MD-CIV-MOT-GEN-2025/00181) [2025] NAHCMD 256 (16 May 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

 

JUDGMENT

 

Case no: HC-MD-CIV-MOT-GEN-2025/00181

 

In the matter between:

 

KELP BLUE DAWN AQUACULTURE (PTY) LTD APPLICANT

 

and

 

MINISTER OF AGRICULTURE, FISHERIES,

WATER AND LAND REFORM 1^ST RESPONDENT

 

THE REGISTRAR OF FERTILISERS, FARM FEEDS

AND AGRICULTURAL REMEDIES 2^ND RESPONDENT

 

THE EXECUTIVE DIRECTOR: MINISTRY OF AGRICULTURE,

FISHERIES, WATER AND LAND REFORM 3^RD RESPONDENT

 

Neutral citation: Kelp Blue Dawn Aquaculture (Pty) Ltd v Minister of Agriculture, Fisheries, Water and Land Reform (HC-MD-CIV-MOT-GEN-2025/00181) [2025] NAHCMD 256 (16 May 2025)

 

Coram: AMBUNDA AJ

Heard: 30 April 2025

Delivered: 16 May 2025

 

Flynote: Motion Proceedings – Urgent application – Requirements for urgency – Applicant to set out the twin requirements for urgency as stipulated in High Court Rule 73(4).

 

Summary: This is an urgent mandamus application brought by the applicant to have the respondents compelled to act in accordance with the enabling statutory provisions. The applicant’s case is based on non-compliance with s 6 of the Fertilisers, Farm Seeds and Agricultural Remedies and Stock Remedies Act 36 of 1947 and reg 9 of the regulations made under the Fertilisers, Farm Seeds and Agricultural Remedies and Stock Remedies Act 36 of 1947. The applicant applied to the second respondent to be registered as a fertiliser and such application was denied on 19 February 2025 by the second respondent. On 19 March 2025, the applicant appealed against the decision of the second respondent in terms of s 6 of the Act. Regulation 9 states that the minister must constitute an appeal board within seven days after receipt of an appeal. No appeal board has been constituted and the applicant seeks a mandamus against the minister to compel him to comply with the prescript of the Act.

 

Held that, the applicant was entitled to approach the court for a mandamus: the one effective remedy available to compel a public authority to perform his or her official duty is mandamus; a remedy used to prevent breach of duty and injustice.

 

Held that, where there is allegation of a violation of a fundamental right and freedom, such matter ought to be heard urgently,

 

Held further that the applicant, being a producer of a seaweed product with a lifespan of only two years would not be afforded substantial redress at a hearing in due course since the product would have expired by then.

 

Application heard as an urgent application and relief granted with costs.

 

 

 

 

ORDER

______________________________________________________________________

 

1. The applicant’s non-compliance with the ordinary rules of this court relating to procedure, forms, service and time periods is hereby condoned, and the application is heard as an urgent application in terms of the provisions of Rule 73 of the High Court Rules.

 

2. The first respondent is hereby ordered to comply, or cause compliance with the provisions of reg 9(4) of the Regulations on the Registration of fertilizers, Farm Feed, Sterilising Plants and Agricultural Remedies, 2007 (Government Notice 112 of 2007) by referring the Applicant’s appeal to the Appeal Board within five (5) days of this order.

 

3. The respondents must pay the costs of this application, including the costs of one instructing and one instructed counsel on a normal scale.

 

4. The matter is removed from the roll and regarded as finalized.

 

 

 

JUDGEMENT

 

 

AMBUNDA, AJ:

 

[1] This is an urgent application brought in terms of rule 73 of the Rules of Court. The application was set down to be heard at 9h00 on the 30 April 2025. The court was engaged in another urgent application at 9h00 on the same day and this matter could therefore only be heard at 11h30 on the same day.

 

[2] The application was unopposed. However, when court commenced at 11h30, a representative from the Government attorneys, Ms Da Silva, appeared on behalf of the respondents and standing in for the legal practitioner who is assigned to this matter, Mr Tibinyane. The court indicated that despite the amended notice of motion inviting the respondents to oppose the matter and to file their answering affidavits by 25 April 2025, no opposition was mounted to the application and no answering papers were filed. The court then adjourned for 5 minutes for Ms Da Silva to obtain further instructions on the matter. During the adjournment a notice of intention to oppose was filed on the e-justice system at 11:39 by Mr Tibinyane, without any answering affidavit.

 

[3] When court resumed, Ms Da Silva indicated to the Court that a notice to oppose was in the meantime filed and that the only instruction she had from Mr Tibinyane was that he is in a trial in Oshakati and that he is only back in Windhoek on Tuesday, 6 May 2025 after which he would then file a review record. It appears from the documents filed of record that the review record is sought to be filed under case number: HC-MD-CIV-MOT-REV-2025/00114. Ms Da Silva indicated that her instructions were to seek a postponement of the urgent application. Understandably so, she submitted that she could not take the matter further because the case was not assigned to her but to Mr Tibinyane.

 

[4] Counsel for the applicant, Mr Nekwaya, was surprised by the appearance of the Government attorneys who did not oppose the matter before the date of hearing but sought a postponement from the bar, without any reasonable reasons advance under oath by Mr Tibinyane. Counsel therefore submitted that it opposes any postponement because the matter is urgent and it is unacceptable that the matter is being opposed on the date of the hearing in this manner.

 

[5] The court indicated to Ms Da Silva that the conduct of the legal practitioners for the respondent is unacceptable. There is no reasons under oath to support an application for postponement, least a tender for wasted costs that will be occasioned with the postponement sought. It is not expected of legal practitioners to sit idle while being served with an urgent application setting out clearly the timelines within which the opposition and the answering papers should be filed. The application in this matter was served on the respondents on 24 April 2025, through the offices of the Government Attorney. The same application was emailed to Mr Tibinyane through his government email address.¹ Nothing was done by Mr Tibinyane, despite the service on him of the urgent application. The reaction to the urgent application came at the last moment. It is least expected of oppositions to be made on the date of the hearing of the matter without even putting in an effort to ensure that Mr Tibinyane appears in person to place on record relevant information which should be considered by this court for a postponement. Mr Tibinyane did not even have the courtesy to indicate to the court beforehand, that he will be engaged in another matter and to seek an indulgence for a postponement on the hearing date. This is unacceptable behavior which will not be tolerated by this court.

 

[6] The court then made a ruling that the matter will proceed in the absence of the respondents’ counsel and any answering papers.

 

The urgent application

 

[7] The applicant seeks the following relief from this court:

 

‘1. That the ordinary Rules of this Honourable Court relating to procedure, forms, service and time periods be dispensed with and the applicant’s noncompliance therewith be condoned, and that the application be enrolled as an urgent application in terms of the provisions of Rule 73.

 

2. That the first respondent be and is hereby ordered to comply, or cause compliance with the provisions of Regulation 9(4) of the Regulations on the Registration of fertilizers, Farm Feed, Sterilising Plants and Agricultural Remedies, 2007 (Government Notice 112 of 2007) within five (5) days of this order.

 

2. Costs of this application, including the costs of one instructing and one instructed counsel (where so engaged).

 

2. Further or alternative relief.’

 

 

 

[8] The applicant, Kelp Blue Dawn Aquaculture (Pty) Ltd, is a company with limited liability and operates in Luderitz by cultivating Macrocystic pyrifera, commonly known as Giant Kelp Seaweed (‘seaweed’). The final product produced by harvesting the Giant Kelp is a biostimulant, an organic fertilizer that boosts soil and plant health.

 

[9] The first respondent is the Ministry of Agriculture, Fisheries, Water and Land Reform (‘the Ministry’) which is responsible for administering the Fertilisers, Farm Seeds and Agricultural Remedies and Stock Remedies Act 36 of 1947 (hereinafter referred to as the ‘Act’). The second respondent is the Registrar appointed by the first respondent in terms of s 2 of the Act (‘the Registrar). The third respondent is the Executive Director (the ‘ED’) of the Ministry, appointed in terms of the Public Service Act 13 of 1995.

 

[10] On 20 May 2021, the applicant applied for the registration of liquid bio-stimulant Macrocystic Pyrifera as a fertilizer in terms of s 3(2) of the Act.² The Registrar, through the ED, on 19 February 2025 communicated to the applicant that the application was unsuccessful due to the reasons advanced in the letter received by the applicant attached as annexure FS 2(1) to the founding affidavit. These reasons were presumably furnished in terms of s 5 of the Act.³

 

[11] The applicant then on 19 March 2025 lodged an appeal against the decision of the Registrar refusing its application for registration, with the minister in terms of s 6 of the Act, read with reg 9 of the Regulations on the Registration of Fertilizers, Farm Feeds, Sterilizing Plants and Agricultural Remedies ( ‘the regulations’).⁴

 

[12] Section 6 of the Act reads:

 

‘Appeal against decisions of registrar

 

6. (1) A person who feels aggrieved by any decision referred to in section 5 may, within the period and in the manner prescribed and upon payment of the prescribed fees, appeal to the Minister against such decision.

 

(2) The Minister shall refer the appeal for consideration and decision to a board of which the members shall be appointed by him, and which shall consist of –

 

(a) one person designated as chairman on account of his knowledge of law; and

(b) two persons who in the opinion of the Minister command sufficient knowledge regarding the matters which will probably be in issue when the appeal is considered.

 

(3) Any appeal noted in terms of subsection (1) shall be heard on the date and at the time and place fixed by the chairman of the board and he shall advise the appellant and the registrar in writing thereof.’

 

[13] Regulation 9 of the regulations read as follows:

 

‘Appeals to the Minister

 

9. (1) An appeal referred to section 6 of the Act shall be made to the Minister within 30 days of receipt of the decision appealed against.

 

(2) The appeal shall be -

(a) in writing;

(b) contain the grounds for the appeal as well as any supporting documentation on which such an appeal is based; and

(c) accompanied by the fee specified in Table D of Annexure 2.

 

(3) The person appealing shall serve copies of the appeal on the person whose decision is being appealed against and on any other interested person and both shall have the right to reply to each ground of appeal raised and such reply shall also be served on the appellant.

 

(4) The Minister shall, within seven days of receiving an appeal, refer the appeal as well as the reply to the board of appeal as provided for in section 6(2) of the Act and thereafter the board of appeal shall deal with the appeal in the manner set out in that section.’

 

[14] The applicant states that it has complied with the statutory requirements in terms of reg 9 by lodging the appeal within 30 days after receiving the decision appealed against, by lodging the appeal in writing which contains the grounds on which the appeal is based and was further served on the respondents⁵ whose decision is the subject of the appeal. Despite the above, the applicant’s case is that the minister has not complied with the provisions of reg 9(4) which requires of him to refer the appeal to the Board within seven days of receiving the appeal.

 

[15] The applicant states that the obligations as contained in s 6, read with reg 9 are pre-emptory in that the minister has no discretion but to constitute the appeal board and to refer the appeal to the board for its consideration and decision within 7 days after receiving an appeal. The relief sought under prayer 2 of the notice of motion is therefore, to have the first respondent, the minister, ordered to comply, or cause compliance with the provisions of reg 9(4) of the Regulations on the Registration of fertilizers, Farm Feed, Sterilising Plants and Agricultural Remedies, 2007 (Government Notice 112 of 2007) by referring the applicant’s appeal to the appeal board within five (5) days of this order.

 

[16] It is the applicant’s case that the respondents did not communicate anything to the applicant since the appeal was lodged. The applicant identified the non-responsiveness of the respondents since the 19 March 2025 when the appeal was served on the respondents. Considering that the minister ought to have constituted the board and referred the appeal to the board within seven days, by 31 March 2025, no response was since received by the applicant.

 

[17] A letter dated 1 April 2025⁶ was sent to the minister enquiring whether the appeal was referred to the Appeal board for adjudication. No response came of this letter. Additional correspondence was forwarded on 2 April 2025 and 7 April 2025.⁷ On 9 April 2025, the above correspondences were sent to Mr Tibinyane as the responsible counsel appointed to deal with the matter in order to try and get the respondents’ position on the request by the applicant. In the correspondence of the 9 April 2025, the applicant insisted that the minister must constitute an appeal board in terms of reg 9(4) since the delay is adversely affecting the rights of the applicant. The applicant further indicated that failure to constitute an appeal board and to refer the appeal immediately will necessitate the bringing of an urgent application to compel the minister to constitute an appeal board. This letter was sent via email to Mr Tibinyane and read by him on 10 April 2025 at 23:23:36.⁸ On 16 April 2025, the applicant intimated the same position to Mr Tibinyane. This letter was received on email on16 April 2025 and read at 16:21:25.⁹ A final letter labelled ‘urgent’ was sent on 20 April 2025 to Mr Tibinyane, noting the absence of any response to all correspondences since 1 April 2025 and indicating to him that, an urgent application will be lodged to compel the minister to constitute an Appeal board in accordance with the provisions of s 6 of the Act, read with reg 9(4).

 

[18] This urgent application was then lodged on 22 April 2025 and set down for hearing on 30 April 2025, to afford the respondents an opportunity to oppose and respond to the urgent application. As indicated above, no opposing papers were filed within the time provided and no arguments were advanced on behalf of the respondents in response to the applicant’s urgent application.

 

The Applicant’s case and submissions

 

[19] Mr Nekwaya appeared on behalf of the applicant and submitted that the matter is inherently urgent as the minister’s conduct is an affront to the rule of law and a breach to the Constitution by failing to comply with its statutory duties. Counsel relied on the decision of Otjozondu Mining (Pty) Ltd v Minister of Mines and Energy and Another¹⁰ wherein the applicant sought the minister to consider its mining application as opposed to compelling the minister to grant the mining license. In this case, the minister halted the decision on the applicant’s application, pending the finalization of a review application. The court at para 6¹¹ stated that in terms of common law, where a duty lies on an administrative authority to perform some or other action, the authority cannot refuse or fail to do so and any such failure or refusal to act within a reasonable time, would allow the person affected to bring an application for a mandamus to force the authority to act.

 

[20] On the part of the application being heard urgently, counsel relied on the decision of Apleni v President of the Republic of South Africa¹² wherein it was held that where allegations made relate to abuse of power by a minister or other public official, which may impact on the rule of law and may have a detrimental impact upon the public purse, the relief sought should normally be urgently considered.

 

[21] Mr Nekwaya submitted that the minister’s failure to act disables the proper functioning of the statutory framework and creates a precedent for indefinite delay in the appeal process. Accordingly, if not remedied urgently, it opens the door for further administrative stagnation, harming not only the applicant but also the integrity of the regulatory framework. The delay by the minister accordingly blocks the remedy available to the applicant in terms of law and subsequently affects its right to a fair administrative process.

 

[22] In addition to the fundamental breach on fair administrative process, Mr Nekwaya submitted that the failure to constitute the appeal board to allow finalization of the appeal is causing irreparable material prejudice to the applicant’s rights, interest and commercial operations.

 

[23] Mr Fabian Shaanika, on behalf of the applicant, deposed that amongst other investments made by the applicant in anticipation of the registration as fertilizer, the applicant has invested in excess of 21 million in capital expenditure for the establishment of a production facility and the commissioning of specialized machinery necessary for the mechanical extraction process employed in the manufacture of the fertilizer product. Furthermore, he deposed that the applicant, in partnership with Kelp Blue Trading (Pty) Ltd, has harvested and processed in excess of 220 tons of raw seaweed extract since 2024, with an estimated value of N$20 500 000.00. Accordingly, this product has a limited shelf line of two years and in the absence of the requisite product registration, there exists a real and imminent risk that the inventory will expire and become commercially unsellable, thereby resulting in substantial financial prejudice. This prejudice is unrecoverable from any party.

 

Disposal: Principles on urgency

 

[24] Counsel for the applicant argued that the applicant was entitled to approach this court for a mandamus to force the minister to comply with its statutory duties. Added to this argument is the position that the respondents’ non-responsiveness since 1 April 2025 necessitated the lodging of this urgent application. I agree with this submission simply for this reason as aided by Parker AJ in Simana v Minister of Agriculture, Water and Land Reform ¹³: The rule of law and the principle of legality require that administrative bodies and administrative officials may only act in accordance with powers conferred on them by law – either by the Namibian Constitution itself or by any other law.¹⁴ Added to the aforesaid foundational principle is the remedy of mandamus in the judicial review of administrative action. The one effective remedy available to compel a public authority to perform his or her official duty is mandamus; a remedy used to prevent breach of duty and injustice.¹⁵

 

[25] The minister, as a creature of statute, derives its powers from the enabling Act and should carry out its powers as prescribed by law. This is the essence of the principles of the rule of law. Section 6 read with reg 9 makes it obligatory for the minister to firstly constitute the Appeal board and to refer the appeal to it within seven days after receiving the appeal. The legislature did not grant a discretion to the minister to extend the seven days. Therefore, based on the Otjozondu case, the minister had no option but to comply with the statutory prescripts and no such reasons have been placed before this court. The applicant was therefore, entitled to approach this honorable court to seek a mandamus against the minister and to have the continuing disregard of the statutory provisions by the minister stopped.

 

Should the application be heard as a matter of urgency?

 

[26] An urgent application is still subjected to the normal rules and court processes as if brought in the normal course. The only difference is that an applicant, in an urgent application must go a step further to comply with the requirements of rule 73(4) and must explicitly set out the circumstances which render this application urgent as well as why the applicant will not be afforded substantial redress at a hearing in due course.

 

[27] The first prayer in the notice of motion of the applicant is for an order condoning applicant’s non-compliance with the forms and service as contemplated for in the rules and authorising applicant to bring this application on an urgent basis. It is trite that the court’s power to dispense with the forms and service provided for in the rules of court in urgent applications is a discretionary one. The applicant bears the onus to satisfy the requirements of rule 73(4) before the court can exercise its discretion in favour of the applicant.¹⁶

 

[28] It is a well-established principle that for purposes of deciding urgency, the court’s approach is that the court accepts that the applicant’s case is a good one.¹⁷ Rule 73(4) stipulates that:

 

‘(4) In an affidavit filed in support of an application under subrule (1), the applicant must set out explicitly –

 

1. the circumstances which he or she avers render the matter urgent; and

 

2. the reasons why he or she claims he or she could not be afforded substantial redress at a hearing in due course.’

 

 

[29] In the matter of Stocks & Stocks Leisure (Namibia) (Pty) Ltd v Swakopmund Station Hotel (Pty) Ltd,¹⁸ a full bench of this court summarised the legal principles derived from judgments of our courts regarding the scope of rule 73 as follows:

 

‘(a) Failure to set out the circumstances upon which a party relies that it is an urgent matter or why he or she claims that he or she could not be afforded substantial redress at the hearing in due course may be fatal to the application and that 'mere lip service' is not enough.

 

(b) The fact that irreparable damages may be suffered is not enough to make out a case of urgency. Although it may be a ground for an interdict, it does not make the application urgent.

 

(c) An applicant has to show good cause why the times provided for in the rules must be abridged and why the applicant cannot be afforded substantial redress at the hearing in due course.

(d) In exercising its discretion, a court must keep in mind that there are varying degrees of urgency.

 

(e) Although Rule 73 allows a deviation from the prescribed procedures and time periods in urgent applications, parties and legal practitioners must, as far as practicable, give effect to the objective of procedural fairness when determining the procedure to be followed in such instances to afford a respondent reasonable time to oppose the application.’

 

[30] What is clear from rule 73 is that, the court has the discretion on whether to hear an application as one of urgency or not. In deciding whether or not to exercise this discretion and hear the matter as one of urgency in respect of commercial interest, Silungwe J held the following in Sheehama v Inspector-General, Namibian Police:¹⁹

 

‘I now return to the issue of urgency. Urgency does not only relate to a threat to life or to liberty but also to commercial interests … This is not to mention other interests that may justify the invocation of Rule 6(12) of the Rules of Court, such as an infringement or threatened infringement of a fundamental right. There are, of course, degrees of urgency ranging from extreme urgency to semi-urgency…’

 

[31] Silungwe, J continued by referring to Twentieth Century Fox Film Corporation and Another v Anthony Black Films (Pty) Ltd as follows:²⁰

 

‘… Goldstone J (as he then was) made the following comments, at 586F-G:

 

'In my opinion the urgency of commercial interests may justify the invocation of Uniform Rule of Court 6(12) no less than any other interests. Each case must depend upon its own circumstances. For the purpose of deciding upon the urgency of this matter I assumed, as I have to do, that the applicants' case was a good one and that the respondent was unlawfully infringing the applicants' copyright in the films in question.' (emphasis provided)

 

[32] In this matter, Silungwe J found that the applicant established urgency on the basis that a violation or infringement of a fundamental right or freedom to be heard justifies the invocation of rule 6(12).²¹ This is the equivalent to the new rule 73(4).

 

[33] The provisions of s 6 read with reg 9 are clear. The provisions grants a remedy in the form of an appeal against the decision of the Registrar. This is a right to appeal and be heard afforded to the applicant. It is unquestionable that the minister failed to afford that opportunity to the applicant in this matter. The minister’s inaction and silence constitutes a violation of the applicant’s fundamental right to be heard as guaranteed by the statutory framework. Ultimately, such inaction constitute a breach of article 18 of the Namibian Constitution which require administrative bodies to act fairly and reasonably and to comply with the requirements imposed by legislature. The court is therefore, convinced in this case that, a case for urgency is established.

 

[34] In establishing the twin requirement of rule 73(4)(b), the applicant’s case is that it will not be afforded substantial redress at a hearing in due course. This is because of the irreparable commercial prejudice that it will suffer having invested huge amounts of money into the processing plant in anticipation of its registration as a fertilizer. On this score alone, the applicant would not have established that it will not be afforded substantial redress at a hearing in due course considering the principles as summarized and followed by our courts that the fact that irreparable damages may be suffered is not enough to make out a case of urgency.²² There must be something more to persuade the court that the applicant will not be afforded substantial redress at a hearing in due course.

 

[35] The applicant in this case has established more than mere financial harm that it stands to suffer owing to the conduct of the minister.

 

[36] A right of a litigant to approach the court on an urgent basis is inextricably tied to a litigant’s right to a fair trial in terms of Article 12 of the Namibian constitution. A party should be able to approach a court of law for purposes of adjudicating legal disputes in the long run. If a party is unable to obtain substantial redress at a hearing in due course, ultimately, the right to access to court would consequently be affected. In Chung-Fung (Pty) Ltd and Another v Mayfair Residents Association and Others²³, the court provided guidance to the effect that:

 

‘[24] A court should be slow to refuse to hear a matter where a litigant will be deprived of substantial redress in due course. In deciding whether an applicant will be able to obtain redress at a hearing in due course, the delay between the hearing before the urgent court and a court in the ordinary course is a weighty consideration.

 

[37] Mr Fabian Shaanika deposed that the applicant has harvested and processed in excess of 220 tonnes of raw seaweed extracts since 2024, with an estimated value of over 20 million. Accordingly, this product has a limited shelf line of two years. Counsel during submission indicated that the above product would have perished in a years’ time considering that a hearing in due course would only be finalized in another 6 to 8 months or so. Accordingly, in the absence of the requisite product registration, there is a real and imminent risk that the product will expire and become commercially unsellable. This will in turn mean that, the investments made into the facility would be lost and the staff employed at the facility would have to be retrenched.

 

[38] The applicant deals with seaweed with a life span of only two years. Accepting that the applicant’s case is correct, the seaweed was harvested during 2024 and its lifespan would run out by 2026, rendering it unsellable. A hearing in due course will not be able to afford any redress to the applicant is relief is not granted on an urgent basis. What is disheartening is that the applicant is made to suffer such prejudice by the actions of the minister who merely ignores his statutory duties to constitute the Appeal board for purposes of considering the decision of the minister. The applicant is not even asking for the minister to approve its application for registration as fertilizer but to merely act in accordance with section 6 read with reg 9 of the Act. This is a legal duty on the minister which imposes a legal obligation to act in a specific way. There is no discretion on the minister to act in any other manner but as provided for by s 6 and reg 9. The minister did not act in accordance with the enabling Act and regulations and such inaction is causing massive harm to the applicant. Surely this court should come to the aid of an applicant who is deprived of its rights as established by law.

 

[39] I am therefore, convinced that a hearing in due course will not afford the applicant substantial redress. By then, the product, forming the subject of the application for registration, would have expired. That would make the application for registration as fertilizer moot and the appeal that needs to be heard by the minister of no use.

 

[40] The applicant has therefore, established that the matter is urgent and that the application should be heard urgently in terms of rule 73(4). The relief will be granted on that basis.

 

Costs

 

[41] It is settled law that a court has a discretion as to whether to award costs or not to a party, and if it has to make an award, to which of the parties to the proceedings. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award them. That discretion, however, has to be exercised judicially and not capriciously or arbitrarily, and in accordance with reason and justice, and the judge ought not to exercise it against the successful party except for some reason connected with the case.

 

[42] I see no justifiable grounds on which I should depart from the default position that costs should follow the event. The respondents sought to unreasonably delay the urgent application by filling a notice to oppose after the court has commenced with the case. This is despite the glaring silence afforded to the applicant since 1 April 2025 on whether or not the minister has complied with its statutory duties. If there was any sort of response from the respondents, maybe these proceedings would not have been necessary. It is just in these circumstances that the applicant be awarded its costs so that it is not out of pocket by the conduct of the respondents. Costs will therefore, be awarded on a normal scale.

Order

 

[43] In the circumstances, the following order is made:

 

1. The applicant’s non-compliance with the ordinary rules of this Honourable Court relating to procedure, forms, service and time periods is hereby condoned, and the application is heard as an urgent application in terms of the provisions of rule 73 of the High Court Rules.

 

2. The first respondent is hereby ordered to comply, or cause compliance with the provisions of reg 9(4) of the Regulations on the Registration of fertilizers, Farm Feed, Sterilising Plants and Agricultural Remedies, 2007 (Government Notice 112 of 2007) by referring the Applicant’s appeal to the Appeal Board within five (5) days of this order.

 

3. The respondents must pay the costs of this application, including the costs of one instructing and one instructed counsel on a normal scale.

 

4. The matter is removed from the roll and regarded as finalized.

 

 

______________________

L AMBUNDA

Acting Judge

 

 

APPEARANCES

 

APPLICANT: E Nekwaya

(Assisted by G. Paulse)

ENS I Namibia

Windhoek

 

 

 

RESPONDENT: F Da Silva

(Standing in for Mr Tibinyane)

Office of the Government Attorney

Windhoek