Matador Enterprises (Pty) Limited v Minister of Trade And Industry and Others; InRe: Clover Dairy Namibia (Pty) Ltd and Another v Minister of Trade And Industry and Others (A 352/2013) [2014] NAHCMD 156 (16 May 2014);

Group

Full judgment

REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: A 352/2013



DATE: 16 MAY 2014



In the matter between:

 

MATADOR ENTERPRISES (PTY) LIMITED..................................................................APPLICANT



And



MINISTER OF TRADE AND INDUSTRY............................................................1st RESPONDENT

DAIRY PRODUCERS ASSOCIATION OF NAMIBIA........................................2nd RESPONDENT

NAMIBIA DAIRIES (PTY) LIMITED...................................................................3rd RESPONDENT

THE MEAT BOARD OF NAMIBIA ….................................................................4th RESPONDENT

NAMIBIA COMPETITION COMMISSION.......................................................5th RESPONDENT

THE ATTORNEY-GENERAL OF NAMIBIA.......................................................6th RESPONDENT

THE MINISTER OF FINANCE...........................................................................7th RESPONDENT

THE PRESIDENT OF THE REPUBLIC OF NAMIBIA......................................8th RESPONDENT

 

 

AND

 

Case no: A 386/2013

 

In the matter between:

 

CLOVER DAIRY NAMIBIA (PTY) LTD.......................................................... 1st APPLICANT

PARMALAT SA (PTY) LTD............................................................................ 2nd APPLICANT



And



THE MINISTER OF TRADE AND INDUSTRY..........................................1st RESPONDENT

DAIRY PRODUCERS ASSOCIATION OF NAMIBIA..............................2nd RESPONDENT

NAMIBIA DAIRIES (PTY) LIMITED.........................................................3rd RESPONDENT

THE MEAT BOARD OF NAMIBIA...........................................................4th RESPONDENT

THE ATTORNEY-GENERAL OF NAMIBIA.............................................5th RESPONDENT

 

Neutral Citation: Matador Enterprises (Pty) Ltd (A 352/2013) and Clover Dairy Namibia (Pty) Ltd (A386/2013) v The Minister of Trade and Industry [2014] NACHMD 156 (16 May 2014)

 

Coram: SMUTS, J

Heard: 14 March 2014 and 25 March 2014

Delivered: 16 May 2014

 

Flynote: Application to review a notice issued in the name of the Minister of Trade and Industry under Act 30 of 1994 to restrict the importation of dairy products to Namibia and to challenge the constitutionality of s2 and s3 of Act 30 of 1994. The court found that earlier legislation, Act 5 of 1986, applied to the imposition of restrictions upon the importation of dairy products and that it was not competent to do so under Act 30 of 1994. The court also found that even if Act 30 of 1994 were applicable, the minister had in any event failed to apply his mind to relevant matter including his powers under that Act and other relevant matter. The court also found that the only decision on record was made by the cabinet, not vested with the power to do so and not the Minister and that this would also have vitiated the decision. The court also found that the process of decision making was flawed and that interested parties had not been properly accorded their right to be heard in the circumstances. Because the decision was to be set aside upon review grounds, it was not necessary for the court to pronounce upon the constitutionality of the impugned sections.

ORDER

 

1.            Government Notice 245 of 2013 is hereby set aside.

 

2.            Those respondents opposing the applications are to pay the costs of the applicant(s) in each matter, jointly and severally, the one paying the other(s) to be absolved. This does not include the costs in the Matador application with regard to the application for interim relief.

 

3.            The costs in these applications include those of two instructed and one instructing counsel.

 

JUDGMENT

SMUTS, J

[1]                On 16 September 2013, Government Notice No 245 of 2013 was published by the Minister of Trade and Industry (“the Minister”) entitled “Prohibition on importation of dairy products into Namibia: Import and export control, 1994”. In terms of this notice, the Minister, invoking the Import and Export Control Act, 1994[1] (“the Act”) placed quantitative restrictions upon the import of certain dairy products into Namibia. This notice forms the subject matter of two separate court applications heard together.

 

[2]                The applicant in Case No 352/13, Matador Enterprises (Pty) Ltd (“Matador”) not only challenges the notice on several review grounds, but in its main relief applies to strike down as unconstitutional sections 2 and 3 of the Act. Matador originally also applied for urgent interim relief pending the determination of the constitutional challenge upon those sections and its review of the decision embodied in the notice. Matador did not however proceed with the application for urgent interim relief and the matter was set down for hearing on 14 March 2014.

 

[3]                In the meantime the applicants in the other application, Clover Dairy Namibia (Pty) Ltd and Parmalat SA (Pty) Ltd (“Clover” and “Parmalat”) also brought an application challenging the notice.  The main relief sought in their application was to review the decision embodied in the notice. In the alternative, those applicants sought to strike down sections 2 and 3 as being unconstitutional.

 

[4]                Given the identical nature of the relief sought – albeit in a different sequence and in the alternative in the Clover matter – all the parties sensibly agreed that the two applications be heard together. There is also an overlap in respect of many review grounds raised in the two applications although each application also contained separate review grounds not raised in the other.

 

[5]                In both applications, the Dairy Producers Association and Namibia Dairies (Pty) Ltd – the beneficiaries of the notice – are cited as respondents. These entities have opposed both applications, as have the governmental respondents with the exception of the Meat Board cited in both applications and the Namibia Competitions Commission cited in the Matador application.

 

[6]                In this judgment, the factual background to the impugned notice is first set out. The statutory scheme for the notice is then referred to whereafter the constitutional challenge to sections 2 and 3 of the Act and the review grounds are then referred to together with the opposition to the applications including preliminary points raised in the Clover application. Certain of the review grounds are then discussed. In view of the conclusion reached in respect of the review, it does not become necessary to deal with the constitutional challenge to these sections.[2]

Factual background

 

[7]                Much of the factual background to the notice is not in issue, although further facts emerged from the record of the decision making disclosed under Rule 53 which both sets of applicants dealt with in supplementary affidavits under Rule 53(4).

[8]                Matador and Clover import dairy products into Namibia. Matador does so as an agent for various producers of dairy products in South Africa whilst Clover was established some 2 years ago to import dairy products for distribution from Clover South Africa which had, in the years before that, exported dairy products to Namibia. Parmalat is a South African concern which exports dairy products to Namibia. Its products are sold and distributed by Matador as its agent.

 

[9]                Prior to the year 2000, there were no restrictions upon the importation of dairy products from South Africa to Namibia. The dairy industry in Namibia then received certain protection. Government Notice No. 187 of 2000 was published. It imposed a levy of 42.5 cents per litre upon ultra high temperature (“UHT”) milk imported into Namibia. It is common cause that Namibia Dairies is the only processor of UHT dairy products in Namibia. The notice referred to (and took cognisance of) the Southern African Customs Union agreement (“SACU”).

 

[10]            This protection was subsequently extended under the 2002 SACU agreement. It was extended to include extended shelf life (“ESL”) milk under the Infant Industry Protection (“IIP”) provisions of the 2002 SACU agreement. A notice to this effect was published in 2007.[3] This notice explicitly refers to Article 26 of the SACU agreement which provides for IIP which would be in place for a maximum period of 8 years unless otherwise determined by the SACU Council. The protective tariffs in the 2007 notice continued until January 2012 when IIP expired.

 

[11]            The effect of this expiry was that dairy products became available at lower prices because they were no longer subject to the levies under the notices. Namibia Dairies was unable to compete with the lower prices of imported South African dairy products. This led to an application being made by the Dairy Producers’ Association of Namibia (“DPA”) and Namibia Dairies directed to the Ministry of Trade and Industry (“Ministry”) in April 2013 seeking urgent interim measures to secure the continuation of the Namibian dairy industry until the Meat Industry Act[4] could be amended to include dairy products as controlled products within the ambit of that Act for the purpose of controlling the importation of dairy products into Namibia.

 

[12]            The submission of the DPA to the Ministry was dated 3 April 2013. It referred to the imposition of restrictions by the meat industry on the basis of genetically modified fodder in order to comply with the requirements of the European Union and pointed out that these restrictions do not apply to the South African market. It stated that as a consequence, the latter could use cheaper (genetically modified) fodder to stimulate milk production and consequently deliver a larger quantity of milk per animal and hence produce cheaper milk. In the course of the submission, reference was made to “stringent EU Sanitary and Phyto-sanitary (SPS) requirements”. The submission also referred to the industry protection previously granted which had resulted in an increase in raw milk production and in additional investments in raw milk production capacity in Namibia. It also referred to the size of the market and referred to the share of Namibia Dairies as being about 50% of the commercial dairy product market in respect of UHT milk. The point was also made that because of the small size of the Namibian market that it would be “highly vulnerable to market diversification from South Africa” and that following the termination of the IIP, “the local dairy industry has been under constant pressure from cheaper dairy imports” (from South Africa).

 

[13]            Following receipt of this application, the Ministry, in an advertisement taken out in the local media, issued a notice entitled “Public notice on an application received from the Namibia Dairy Industry to implement restrictions on importation of dairy products into Namibia.” The notice referred to the application received from the dairy industry requesting the limitation of importation of dairy products such as fresh milk, ESL and UHT imported into Namibia. The notice then proceeded as follows:

 

All interested parties / importers are hereby requested to submit written comments if they are in support or have any objection to this application.’

 

A copy of the application could be obtained from the Ministry and comments were to be provided by no later than noon on 24 May 2013. The notice was published in the media on 14 May 2013.

 

[14]            Clover responded to the advertisement on 21 May 2013, objecting to the proposed restriction. It was further stated that it was not able to submit a detailed reply to the submission in the time period provided for and sought an extension of time to do so. But it stated in its interim response that there were certain inaccurate factual assertions contained in the dairy industry application, particularly regarding the usage of rBST and antibiotics to increase feed conversion ratios, the production cost of milk producers and cross-subsidisation of primary transport. Certain further issues were raised and Clover requested an opportunity to put forward its view verbally or in writing to the Ministry. Subsequent written representations were provided which expanded extensively upon the brief objection initially sent to the Ministry on 21 May 2013. The factual inaccuracies contained in the DPA application were further explained in some detail, especially in response to the statement contained in the application that foreign dairy producers applied synthetic hormones to their herds in order to induce milk production and antibiotics to increase feed conversion ratios and thus putting the Namibian dairy industry in a disadvantageous position.  It was stated by Clover that it periodically obtains “undertakings/confirmations” from its milk producers in which they are required to confirm that no raw milk supplied to Clover had originated from animals which had been treated with synthetic hormones such as recombinant bovine somatotropin (“rBST”). It was also stated that Clover disagreed with the cost comparison stated in the DPA application and sought the opportunity to further explain those inaccuracies.

 

[15]            The further submissions by Clover dealt at some length with competition principles and the SACU agreement. It relied particularly on Article 18 which stresses the free movement of domestic products in the common customs area and Article 25 which refers to import and export prohibitions and restrictions.

 

[16]            Article 25 of the SACU agreement provides as follows:

 

1.        Member States recognize the right of each Member State to prohibit or restrict the importation into or exportation from its area of any goods for economic, social, cultural or other reasons as may be agreed upon by the Council.

 

2.         Except in so far as may be agreed upon between the Member States from time to time, the provisions of this Agreement shall not be deemed to suspend or supersede the provisions of any law within any part of the Common Customs Area which prohibits or restricts the importation or exportation of goods.

 

3.         The provisions of paragraphs 1 and 2 shall not be so construed as to permit the prohibition or restriction of the importation by any Member State into its area of goods grown, produced or manufactured in other areas of the Common Customs Area for the purpose of protecting its own industries producing such goods.’

 

[17]            The point was thus taken that the measures proposed by the DPA application would be in violation of Article 25(3) which militates against the prohibition or restriction of imports except under circumstances specifically permitted under the SACU agreement.

 

[18]            Other issues were also raised including concerning Namibia’s membership of the World Trade Organisation (“WTO”) and its implications. The submission concluded by requesting the Minister to refrain from relying upon the factual inaccuracies contained in the dairy application when making his decision particularly regarding the costs, feed and transport factors of companies importing dairy products into Namibia.

 

[19]            In response to the notice, Matador also sought an extension to make submissions which was granted. Detailed representations were also provided to the Ministry by Matador.

 

[20]            Following the written submissions made by Clover and Matador, the Ministry issued another public invitation in the media by way of public notice which had as its heading “Invitation to a public consultation on quantitative restrictions on the importation of dairy products into Namibia”. The invitation referred to the application received for the imposition of quantitative restrictions on the importation into Namibia of ESL and UHT milk, buttermilk, curdled, yoghurt and other fermented milk under the provisions of the Act. It further stated:

 

The Ministry of Trade and Industry will hold a public consultation on the application and hereby invite any interested parties to attend and provide their views on the subject matter.’

 

[21]            Interested parties were then invited to a consultative meeting which was held on 18 July 2013. Representatives of the applicants in both applications attended and participated in that meeting with both Matador and Clover having provided detailed written representation setting out their respective positions in advance of the meeting.

 

[22]            The Permanent Secretary of the Ministry chaired the meeting. In his introduction, he referred to the fourth National Development Plan (“NDP4”) and the initiative taken by the Ministry known as “growth at home” which sought to accelerate economic growth in Namibia by increasing employment and reducing income and wealth disparity. The DPA and Namibia Dairies were also represented and made presentations to the meeting, as did several other interested parties. The applicants in both applications stated that the Permanent Secretary informed the meeting that the Ministry would collate and compile all the submissions made and forward them to all interested parties who participated in the meeting for further comment, thus permitting parties to reflect on other submissions made and to make further representations on issues raised in them. This did not however occur.

 

[23]            Shortly after the meeting and on 7 August 2013 a report in a daily newspaper stated that the Cabinet had approved quantitative restrictions in terms of the Act. This report elicited correspondence by the lawyers representing both sets of applicants.

 

[24]            Matador’s lawyer referred to the understanding on behalf of his client of an undertaking to circulate a summary of representations made at the meeting and the recommendation to the Minister and enquired as to how this could have occurred prior to a decision of Cabinet and prior to the completion of the consultation process. The Permanent Secretary responded by assuring Matador’s lawyer that:

 

The process is not yet concluded. We are preparing the record of the consultations – which has taken longer than anticipated due to other obligations – and as I mentioned at the meeting we will thereafter brief the Minister. I will in the meanwhile ask that the presentation/s made at the meeting be circulated right away.

 

[25]            Clover and Parmalat’s lawyer addressed a letter dated 15 August 2013 following the press report of 7 August 2013. The letter sought an urgent clarification as to the “actual state of affairs” in the light of the report. The letter further enquired:

 

On what basis the Cabinet was approached for approval, if this was indeed the case, as it is our understanding of section 2 of the statute . . . that it is the Minister . . . who must consider the application and, having done so fairly and reasonably and on that basis satisfied himself that it is necessary or expedient in the public interest, to then impose the restrictions contemplated by that section and to do so by notice in the Gazette.

 

[26]            When no response to this letter was forthcoming, a further letter was addressed requesting one. The Permanent Secretary reverted on 10 September 2013 to advise that the Government Attorney would respond. No response was made to this letter prior to Clover’s application launched at the end of October 2013.

 

[27]            The next development which confronted the applicants was the publication of the notice in the Government Gazette on 16 September 2013. The terms of the notice are as follows:

 

PROHIBITION ON IMPORTATION OF DAIRY PRODUCTS INTO NAMIBIA: IMPORT AND EXPORT CONTROL ACT, 1994

 

In terms of section 2(1)(b) of the Import and Export Control Act, 1994 (Act No. 30 of 1994), I –

 

(a)        Prohibit the importation into Namibia of dairy products specified in the Annexure to the Schedule, except -

 

(i)            under the authority of an import permit issued by the Minister or a person authorized by the Minister; and

 

(ii)           in accordance with conditions stated in the Schedule and the import permit;

 

(b)        prescribe a limit of 500 000 litres per month for importation into Namibia of milk and cream, not concentrated nor containing added sugar or other sweetening matter, specified in the Annexure to the Schedule;

 

(c)        prescribe a limit of 200 000 litres per month for importation into Namibia of buttermilk, curdled milk, and cream, yoghurt, kephir and other fermented or acidified milk and cream, whether or not concentrated or containing added sugar or other sweetening matter or flavoured or containing added fruit, nuts or cocoa, specified in the Annexure to the Schedule;

 

(d)        authorise the Import, Export and Trade Measures Office of the Ministry of Trade and Industry to direct a person who intends to import into Namibia dairy products specified in the Annexure to the Schedule to provide that office within a period specified by that office any information at his or her disposal in relation to the importation of the dairy products;

 

(e)        may increase the quota prescribed under paragraph (b) and (c) if there is a shortfall in the market; and

 

(f)        determine that this notice come into operation after 30 days from the date of its publication in the Gazette.

 

G. SCHLETTWEIN

MINISTER OF TRADE AND INDUSTRY                  Windhoek, 28 August 2013

 

[28]            The schedule to the notice provided for applications for import permits and their issue, presentation and period of validity. In the annexure to the schedule, the dairy products were specified and included UHT milk, other milk as well as buttermilk, curdled milk and cream, yoghurt, kephir and other fermented or acidified milk and cream.

 

[29]            Clover’s lawyers thereafter on 23 September 2013 requested the Minister in a letter to provide reasons or the grounds upon which the decision was taken as was reflected in the notice. It also enquired as to the basis for the prohibition and quantitative restrictions with reference to Namibia’s treaty obligations under the SACU agreement and pointed out that Clover enjoyed a legitimate and reasonable explanation to be able to pursue its business, trade and operations as a Namibian company on the basis of the Government of Namibia honouring and living up to its treaty obligations. Clarification was also sought as to the earlier enquiry made with regard to the media report on the Cabinet having made a decision. The Permanent Secretary responded in a letter dated 26 September 2013, stating that the Minister was abroad and that the issue would be addressed on his return. The Minister subsequently on 21 October 2013 informed Clover’s lawyers that their letter of 26 September 2013 had been handed to the Government Attorney for action. Clover thereafter launched its application together with Parmalat on 30 October 2013 without receiving the requested reasons or the clarification sought.

 

[30]            Matador in the meantime had launched its application on 8 October 2013.

 

[31]            After the applications were served, the record of the decision making was made available to both sets of applicants in terms of Rule 53. The record included two letters prepared in the name of the Minister addressed to Matador’s and Clover’s lawyers respectively. These letters were dated 20 October 2013. Neither of these letters was received by the lawyers in question. The signatory is not identified. But it is clear that it was not the Minister as they were both signed on his behalf, given the use of the lettering “pp”. These letters contained some justification for the Minister’s decision, but he did not sign them. Nor did he file any affidavit in these proceedings in either application confirming what was contained in these letters or anything else stated on his behalf.

 

[32]            It also emerged from the record provided under Rule 53 that the Minister had signed a memorandum to Cabinet on 27 June 2013 under the heading “Imposition of quantitative restrictions on imports of dairy products into Namibia”. The memorandum referred to “the serious challenges being faced by the Namibian Dairy Industry due to imports of dairy products” into Namibia. Its purpose was:

 

1.        To seek and obtain the approval of Cabinet for the Ministry of Trade and Industry to institute restrictions on the quantities of fresh, Extended Shelf Life, Ultra High Temperature milk, buttermilk, curdled, yoghurt and other fermented milk that are being imported into the country as an interim measure in terms of the relevant provisions of the Import and Export Act, 1994 (Act No. 30 of 1994) pending the introduction of relevant long term measures (Meat Industry Act No 12 of 1981) and

 

2.         To seek Cabinet approval for the imposition of import permit requirements for the imports of fresh, Extended Shelf Life (ESL), Ultra High Temperature (UHT) milk, buttermilk, curdled, yoghurt and other fermented milk which system will be administered by the Meat Board of Namibia.’

 

[33]            Those were the objectives of the Minister’s memorandum to Cabinet. The memorandum further referred to the submission from the DPA, citing difficulties faced by Namibian dairy producers (due to alleged unfair competition) from imports mainly from South Africa. The memorandum referred to the request contained in the submission by the DPA for interim measures to restrict fresh, ESL and UHT milk and other dairy products from being imported into Namibia. The memorandum then outlined the short term relief sought by the DPA which was to be in terms of the Act pending a permanent control measure instituted through an amendment to the Meat Industry Act. The memorandum referred to the SACU agreement and the fact that IIP was granted to the Namibian dairy industry until 2011.

 

[34]            The memorandum further referred to the DPA submission which was attached to it which said that a surplus of imported milk threatened the survival of the local milk producing farmers and dairy producers and that Namibia Dairies was unable to compete with the lower prices of the imported milk because its current costs and that potential closure of milking operations in Namibia may arise if protective measures were not instituted.

 

[35]            The memorandum also referred to matter contained in the submission by the DPA stating that synthetic hormones inducing milk production (like rBST14) were widely used in South Africa which gave those producers a cost and efficiency advantage. The memorandum also referred to the low transport costs of milk from South Africa and the fact that milk is VAT exempted in South Africa whereas milk is subject to a 15% VAT in Namibia. These were the reasons which were provided for the need for the imposition of restrictions.

 

[36]            The memorandum further referred to the provisions of ss 2 and 3 of the Act which empowered the Minister whenever necessary or expedient in the public interest to prohibit or limit the quantity or value of imports of specified goods by way of the notice in the Gazette. The memorandum accordingly advocated the restriction of the dairy products specified in it.

 

[37]            In paragraph 3 under the heading “Consultations” the memorandum stated:

 

This Ministry has:

1.         Consulted and will further consult with the Ministry of Agriculture, Water and Forestry and the Meat Board of Namibia; and 

 

2.         Already published a call for comments from interested parties in the local media and is now in the process of arranging a meeting of stakeholders in the dairy sector industry.’

 

[38]            The memorandum proceeded to make the following recommendations:

 

It is hereby recommended that Cabinet considers the content of the submission and grants an in principle approval:

 

1.         To the Ministry of Trade and Industry to proceed to institute interim quantitative restrictions on imports of fresh, extended shelf life (ESL), ultra high temperature (UHT) milk, buttermilk, curdled, yoghurt and other fermented milk through the introduction of an import permit system to be administered by the Meat Board of Namibia, and

 

2.         For the implementation of the quantitative restriction measures referred to above to be proceeded by consultations with stakeholders as stated in 2.16 and 3 herein.’

 

[39]            The consultations referred to in 3 are quoted above. Consultations in 2.16 were with what were termed “relevant stakeholders, namely Ministry of Agriculture, Water and Forestry, Office of the Attorney-General and the Meat Board.”

 

[40]            The memorandum concluded with paragraph 5 entitled “communication strategy” which provided as follows:

 

1.        The decision of the Cabinet will be communicated through the normal communication channels. 

 

 2.        The Ministry of Trade and Industry will also notify the public about the imposition of the quantitative import restriction measures through a Government Gazette notice.’

 

[41]            The memorandum was signed by the Minister.

 

[42]            The record also included the transcript of the Cabinet decision of 2 July 2013. Under the heading “Imposition of quantitative restrictions on imports of dairy products into Namibia”, it was stated:

 

RESOLVED

 

1.         The Cabinet direct the Ministry of Trade and Industry to institute interim quantitative restrictions on imports of fresh, extended shelf life (ESL), ultra high temperature (UHT) milk, buttermilk, curdled, yoghurt and other fermented milk through the introduction of an import permit system to be administered by the Meat Board of Namibia; and

 

2.         The Cabinet approved the implementation of quantitative restrictions measures referred to above to be proceeded by consultations with stakeholders.

 

Two further resolutions were reflected but are not directly pertinent to this matter.

 

[43]            The record also included a letter from the Permanent Secretary of the Ministry dated 20 September 2013 directed to the Chairperson of the Meat Board under the heading “The Meat Board of Namibia to administer the import quota system for dairy products”. In this letter, the Permanent Secretary of the Ministry stated the following:

 

Cabinet by its decision number 10th/02./07.13/004 directed that the Ministry of Trade and Industry institute two interim quantitative restrictions on imports of fresh, extended shelf life (ESL), ultra high temperature (UHT) milk, buttermilk, curdled, yoghurt and other fermented milk through the introduction of an import permit system to be administered by the Meat Board of Namibia.

 

In the light of the above you are hereby informed to administer the implementation of the quantitative restrictions of the import of dairy products.’

 

[44]            It was pointed out in both applications that, when stakeholders were invited to the consultative meeting on 18 July 2013, they had not been informed that a decision based upon the DPA’s submission, had already been made or taken by the Cabinet to impose import restrictions and that it appeared that the only aspect to be consulted upon related to the implementation of that decision. In both applications the point is squarely taken that the Cabinet decision was deliberately withheld from stakeholders. In response to an averment of this nature, the Permanent Secretary stated:

 

All that the first respondent was in law obliged to do was to consult the relevant stakeholders and consider their views and representations on the decision that was being considered by the first respondent following the application of the dairy industry. I dispute that the first respondent is, in law, obliged to disclose the existence or substance of his consultations with Cabinet to the applicants. The applicants were afforded ample opportunity to provide their views and in fact they took advantage of such an opportunity to the extent they deemed appropriate.’

 

[45]            A statement to a similar effect was made in the Matador application. As I have pointed out, the Minister did not file an answering affidavit in either matter. The Permanent Secretary filed affidavits in opposition to both applications. His affidavits differed slightly to address the legal contentions raised in the two matters. This may also be ascribed to different representation for the Governmental respondents in the two applications.

 

[46]            Before referring to the bases upon which the applications were made, the statutory scheme is briefly referred to.

 

Statutory scheme

 

[47]            Sections 2 and 3 of the Act provide as follows:

2         Powers of Minister in relation to import and export of goods

           

(1) The Minister may, whenever it is necessary or expedient in the public interest, by notice in the Gazette prohibit-

           

(a)        the import into or the export from Namibia; or

           

(b)        the import into or the export from Namibia, except under the authority of and in accordance with the conditions stated in a permit issued by the Minister or by a person authorised by him or her,

 

of any goods of a class or kind specified in such notice or of any goods other than goods of a class or kind specified in such notice.

           

(2) For the purposes of subsection (1) goods may be classified also according to the source or origin or the intermediate or final destination thereof or according to the channels along which or manner in which they are imported or exported or according to the purposes for which they are intended to be used.

           

(3) A permit issued under subsection (1) may prescribe the quantity or value of goods which may be imported or exported thereunder, the price at which, the period within which, the port through or from which, the country or territory from or to which and the manner in which the goods may be imported or exported, and such other conditions as the Minister may direct, including any condition relating to the possession, ownership or disposal of goods after the import thereof or to the use to which they may be put.

 

(4) The Minister or any person authorized by him or her, may cancel, amend or suspend any permit issued under subsection (1), if the Minister is satisfied that any condition of the permit has not been complied with, or if the holder of the permit has been convicted of an offence under this Act, or if it is necessary or expedient in the public interest.

           

(5) The Minister may by like notice withdraw or amend any notice issued under subsection (1).

 

3          Furnishing of information to Minister

           

The Minister or any person authorized by him or her, may in writing direct any person who imports, exports or manufactures any goods or trades in any goods or in the course of his or her business or trade handles or has under his or her control any goods, to furnish the Minister within a period specified in the direction with any information at his or her disposal in relation to the import, export, manufacture, supply or storage of the goods concerned.’

 

The applicants’ challenges

 

[48]            In both applications, the applicants complain that the provisions of ss 2 and 3 of the Act are unconstitutional. Matador in its application seeks the striking down of these two sections as its main relief. It complains that they infringe upon its rights under Art 21(1)(j) of the Constitution to trade and that s 3 infringes its rights under Art 13. The further complaint is made that the Act does not comply with the requirement of Art 22 because it does not specify the ascertainable extent of the limitation and identify the article or articles of the Constitution on what authority the limitation is claimed to rest. In both applications, the contention is advanced that the legislative power is vested in the National Assembly and that vesting the power to prohibit under s 2 is in conflict with the separation of powers contemplated by the Constitution by seeking to empower the Minister to legislate and not regulate.

[49]            As I have indicated, Clover in its application seeks to strike down s 2 in the alternative to its relief seeking to review and set aside the decision embodied in the notice. Mr Frank SC, assisted by Ms Bassingthwaighte, who represented Clover in this application, submitted that the constitutionality of the impugned provisions of the Act would only arise if the notice is not held to be invalid on some other non-constitutional ground. This submission was made with reference to Kauesa v Minister of Home Affairs and others.[5] That submission is sound. In view of the conclusion I reach in respect of the review grounds, it is not necessary to address the question of the constitutionality of ss 2 and 3 of the Act and I decline to do so.

 

[50]            A large number of review grounds are raised in both of the applications. There is an overlap in respect of most of them.

 

[51]            In amplifying and refining the review grounds in the supplementary affidavits in both applications, the point was squarely taken, disputing that the Minister had actually taken the decision based on the record and in any event disputing that he had applied his mind properly to relevant matter and the nature of his powers.

 

[52]            In the Matador application, it was expressly disputed that the Minister had actually taken the decision given the fact that there was no document reflecting any deliberation on his part contained in the record and what considerations were taken into account by him. This, it was said, was compounded by the failure to provide reasons. It was expressly raised in the Matador application that the record did not establish which documents had been placed in the Minister’s possession in respect of a review record which exceeded some 443 pages. It was pointed out that there was no note or summary or even some form of pointer provided to the Minister concerning those documents. It was also pointed out in the Matador application that the only documentation which would appear to involve the Minister had been his signed memorandum to Cabinet. The two letters prepared in his name had not been signed by him although he had signed a letter in which he had informed Clover’s lawyers that the matter was referred to Government legal advisors, in response to the request for reasons.

 

[53]            In response to these assertions, the Permanent Secretary (and not the Minister) denied that the record showed that the Minister did not apply his mind to relevant factors and asserted that he had considered the views of all interested parties prior to taking the decision contained in Government Notice 245 of 2013. It was further disputed that there was any rule of law requiring the first respondent to indicate the date upon which he took the decision because that appeared in the Government Notice or to include details of his thought process in reaching his decision. But it was not stated in his affidavit precisely what documentation the Minister had considered or served before him, bearing in mind that he had not been present during the public consultations.

 

[54]            The point is also raised in the Clover application that the Permanent Secretary had brought interested parties under the impression that, at the time of the public meeting on 19 July 2013, no decision had as yet been made. Reference is made to an email sent to Matador’s lawyer in which the Permanent Secretary stated that the purpose of the meeting was to provide an additional opportunity to all affected parties to express themselves in respect of the application as well as possible solutions to the problem which necessitated a request for import restrictive measures. Reference is also made to the Permanent Secretary’s statement in his introduction at the public meeting itself with reference to the DPA application in stating that everyone would have an opportunity to make contributions and ask for clarification on that application and that no decision will be taken that afternoon and that the discussions would be recorded and that the Minister would be briefed and thereafter decide as to how to take the matter forward.

 

[55]            The impression created by the express statements of the Permanent Secretary was that no decision had as yet been taken. There is no documentation in the record reflecting a briefing to the Minister on the respective positions of parties, except for a summary of what was said at the meeting which had been prepared and subsequently provided to the parties. That summary was, however, by no means complete and did not include the extensive references contained in Clover’s submission concerning the incorrect factual material contained in the DPA application. A transcript of the proceedings at the public meeting was prepared at the instance of Matador. This also included statements made by the Permanent Secretary to the effect that the Minister was mandated through the Act to take what was termed a “protective measure” (in respect of the Namibian dairy industry) and that an assessment would be made whether that would require prior consultation within SACU and notification to the WTO.

 

[56]            The point was made in both applications that all participants at the meeting were left under the distinct impression by the Permanent Secretary that a decision would still be taken as to whether quantitative restrictions would be imposed or not. That is after all the essence of the decision to be made by the decision-maker posited by s2. It was stated that this was confirmed by the Permanent Secretary in an email addressed to Matador’s lawyers on 8 August 2013 in which the assurance was given that the process had not been “concluded” and that the Minister was yet to be briefed.

 

[57]            In both applications the point was also taken – as a review ground – that the applicants had not been heard prior to the decision being made by the Cabinet on 2 July 2013 and that their rights to be heard had been breached by the failure on the part of the Ministry to inform interested parties that Cabinet had already made a decision on 2 July 2013.

 

[58]            In support of the review ground raised that the Minister had failed to consider the DPA application objectively and properly apply his mind, it was stated that he had not considered any of the submissions made by the applicants. These had included material pointing out factual inaccuracies raised in support of the primary supporting ground in the DPA application.

 

[59]            The review ground is also raised that the decision to impose import restrictions had either already been taken by Cabinet or had been dictated by Cabinet or had been under the direction of Cabinet, with reference to the Minister’s memorandum to Cabinet and the latter’s subsequent decision directing the Minister to impose restrictions under the Act. It was also suggested that it had been dictated by the DPA and Namibia Dairies.

 

[60]            The point was also raised that there was no evidence of any independent investigation conducted by the Minister to determine whether or not there was in fact a need for the restrictions to be implemented or whether the information provided by the DPA and Namibia Dairies was factually correct.

 

[61]            Clover also took the point that restrictions upon additional dairy products, referred to in paragraph (c) of the notice had not even been included in the DPA application made available to interested parties and upon which their views were sought. These additional dairy products had not been included in the initial invitation directed to interested parties for comment in May 2013. They were, however, included in the public invitation for the meeting of 19 July 2013. But no explanation was provided for this. It was contended on behalf of Clover that this component of the decision should be set aside on the basis of a failure to have afforded interest parties the opportunity to be heard in respect of a restriction of this nature, given the fact that it had not been sought or contained in the application by DPA which had been made available to interested parties for comment.

 

[62]            In both applications the point was also taken that the Minister could not have applied his mind to relevant considerations where there had been no investigation in respect of the DPA and Namibia Dairies’ application but that he instead had fettered his discretion by responding to it by directing his memorandum to Cabinet in which he had, without any investigation or consultation with interested parties on the issue, embraced the DPA application and recommended to Cabinet that quantitative restrictions be imposed under the Act. The point was taken that any subsequent consultation on the issue would have thus been with a closed mind, having strenuously expressing himself in favour of the application to Cabinet. Related to this question, Matador queried whether the first respondent had applied his mind as to whether Namibia Dairies was an efficient enterprise, particularly given the fact that the record revealed that a staff member of the Ministry had referred to Namibia Dairies being granted IIP for 8 years which had been “used to bleed the consumers to the bone for their own profit motives without reinvesting in the competitiveness of the industry which created a short lived lucrative but albeit inefficient dairy enterprise.”

 

[63]            In both applications, the review ground was also raised that the decision embodied in the notice was in conflict with the SACU agreement as there had been no agreement with other member states to impose restrictions, required by the 2002 SACU agreement. It was contended that the notice was as a consequence ultra vires the powers of the Minister, seeking by notice to amend the law of the land by reason of the fact that, so it was contended, the 2002 SACU agreement is part of the law of Namibia by virtue of Art 144 of the Constitution as it is an international agreement binding upon Namibia. It was also pointed out that the notice was not of a temporary duration and that this too would offend against the SACU agreement. The point was also taken that insofar as the SACU agreement is not self-executing, then its terms should at least have been taken into account by the Minister in his decision making but that he had failed to properly apply his mind to the terms of the SACU agreement in making his decision to publish the notice in question. Reference is also made to Art 99 of the Constitution which exhorts the State to foster respect for international law and treaty obligations. It was thus contended that the Minister had misapprehended the nature of his powers under the Act.

 

[64]            It was also contended that the decision to impose the restrictions contained in the notice had been taken by Cabinet which is not the correct functionary in terms of the Act.

 

[65]            In both applications it was contended that the notice had offended against the rights of the applicants to fair and reasonable administrative action protected under Art 18 of the Constitution. There is reference to the failure to provide reasons for the decision which suggested that it was arbitrary, unreasonable and based on an ulterior motive.

 

[66]            In the Clover application, a further review ground was raised that the Minister had misconstrued his powers by seeking to act under the Act when a specific Act dealing with dairy products was applicable[6] and should have at least been considered by him. This review ground is set out more fully in the discussion of review grounds below.

 

The opposition to the applications

 

[67]            In opposition to both applications, the Permanent Secretary pointed to difficulties facing the Namibian dairy industry. He stated that it was deemed necessary by the Minister to establish import restriction based upon the best available information at his disposal, including a previous study conducted by the Ministry and the application of the DPA and the comments received at the public meeting in order to “avoid the loss of productive capacity for dairy products in Namibia and other negative impacts on the dairy value chain and employment created and maintained through that value chain.” He also stressed that it was deemed necessary by the Minister to avoid increasing dependence on imported dairy products in the interest of maintaining food security and to ensure the proper maintenance of consumer choice to imported dairy products and locally produced domestic dairy products which were not making use of artificial hormones or production enhancing additives or genetically modified components in animal feed.

 

[68]            The Permanent Secretary also stressed that the imposition of restrictions was deemed expedient by the Minister as an efficient means of achieving the safeguarding of current levels of domestic production in the face of the threats to the industry posed by lower priced imported products whilst simultaneously permitting competition between imported and domestic products because of the partial nature of the restriction. This was because half of the current demand would be supplied by imported dairy products. He pointed out that consumers would then have the choice between (imported) products produced with or without artificial hormones or production enhancing additives or genetically modified components in animal feed and local products without such intervention. He stated that the Minister had thus deemed it to be in the public interest, based upon these considerations, to impose the restrictions.

 

[69]            The Permanent Secretary also stressed the importance of the dairy industry in Namibia for job creation and the maintenance of employment in rural areas as well as the need for diversification of the agricultural sector. These were, he stressed, policy objectives pursued by the Government. As was enhancing food security and adding value to raw materials.  It was within this context, he stated, that the notice was issued.

 

[70]            In opposition to the Matador application, the Permanent Secretary acknowledged that the applicant in that matter had the right to be heard. He stated that it was “afforded a full and proper opportunity to make meaningful representation” and its participation in the consultative forum and submission of written submissions were “indicative that first respondent met the obligations imposed on the first respondent to give interested parties an opportunity to be heard prior to making a decision.” This was further stressed in the subsequent answering affidavit where it was stated “the applicant was provided with an ample opportunity to be heard and duly exercised it as it is entitled to do so in law.” I refer further to this aspect below.

 

[71]            The Permanent Secretary also denied the allegations that the Minister had not properly applied his mind and asserted that he had done so “prior to taking the decision.” He also stated that the Minister was “briefed on the views and recommendations resulting from the meeting of 18 July 2013”, although not specifying how this briefing took place and when it occurred. It was also conceded that the Minister “is in law required to provide all interested parties with an opportunity to be heard prior to taking his decision.” It was then contended by the Permanent Secretary that the applicants in both applications had been provided with such an opportunity and that their submissions had been taken into account by the Minister. It was also pointed out by the Permanent Secretary that the Minister took into account the submissions of parties as well as the record of the meeting of 18 July 2013 the application by the DPA, written submissions which were presented, an independent study conducted on behalf of the Ministry, the need for job creation and industrialisation, Namibia’s obligations to its international trading partners, the interests of importers, the need for Namibia to have food security, the strategic objectives of the fourth NDP, the Ministry’s “growth at home” initiative, the impact of measures upon consumers and importers, the challenges faced by the DPA and the nature of its industry, alleged unfair practices of importers, the views of the Namibia Chambers of Commerce and Industry and the threat to Namibian dairy producers by cheaper South African imports.

 

[72]            As to the Cabinet memorandum, the Permanent Secretary denied that the Minister had a closed mind or had already made up his mind and was not open to persuasion by submitting his memorandum to Cabinet. The Permanent Secretary explained that it was intended to seek Cabinet’s approval in principle to institute quantitative restrictions and import permits of dairy products and referred to the relevant issues in making such a determination in seeking Cabinet approval for that policy direction. He contended that the Minister was within his powers to approach Cabinet to seek a policy direction on a matter relevant and within his powers as a Minister.

 

[73]            The Permanent Secretary further contended that the decision of the Cabinet was a policy decision which is not implemented unless the appropriate official takes a decision authorised by law. He further stated that the Minister did not base his decision in the notice on a decision of the Cabinet. The decision in the notice, he said, differed in nature and scope to the policy decision of Cabinet. These differences were not, however, explained in his affidavit.

 

[74]            The Permanent Secretary also denied that the notice violated Namibia’s obligations under international law under the 2002 SACU agreement.

 

[75]            In opposition to the Clover application the Permanent Secretary also took the point that the second applicant, Parmalat, lacked standing to bring the application. That point is first dealt with whereafter certain review grounds are considered. The DPA and Namibia Dairies also filed answering affidavits opposing both applications.

 

Parmalat’s standing

 

[76]            The Permanent Secretary takes the point that Parmalat is not itself an importer in the context of the notice but acknowledged that it exported its dairy products from South Africa to Namibia through other parties. He then contended that Parmalat relied upon “some derivative rights” and thus did not have standing. He also contended that there was “no administrative and/or public law relationship between it and the Minister”.

 

[77]            It is correct that Parmalat made it clear that it utilized agents in Namibia to distribute and sell its produce under its own brand. It was contended on its behalf that it thus had a direct or substantial interest and not merely a derivative or financial interest. Reference was made in argument to the allegations contained in the founding affidavit on behalf of Parmalat setting out its interest and the extent to which it would be affected by the notice.

 

[78]            As was submitted by Mr Frank SC, when determining the question of Parmalat’s locus, I must assume that the notice is a nullity.[7] Mr Namandje, who together with Mr Chibwana, appeared on behalf of the first respondent in the Clover application, submitted that the nature of Parmalat’s right is derivative and is limited to a financial interest which would not confer standing upon it. He relied upon the Kerry McNamarra decision.[8] The facts in McNamarra are however distinguishable to those raised in this matter. In McNamarra, subcontractors to a tenderer were found to lack standing in challenging the decision of the Tender Board (which the tenderer to whom they were contracted did not challenge) by reason of their derivative right.

 

[79]            In this matter, Parmalat does not derive its right to export its products into Namibia because of the presence of importers within Namibia in the sense found in the McNamarra matter. On the contrary, the point raised is rather akin to the point also raised but dismissed by the Supreme Court in the Trustco matter[9]. The objection was made there that a party was seeking to acquire standing by concluding an agreement with another party which had standing where the agreement would otherwise be unenforceable by reason of the impugned regulatory restriction in that matter. The court, with respect, correctly concluded that, on the assumption that the regulatory restriction was void, the outcome of the proceedings would certainly affect both parties.

 

[80]            In the Clover application, Parmalat has clearly stated the manner in which it is adversely affected by the notice. The fact that the other contracting party, namely the importer inside Namibia, would also have standing does not in my view mean that Parmalat would by virtue of that fact lack standing. The overall question remains as to whether it has a sufficient direct and substantial interest in the relief sought. In my view it has, given the impact of the notice upon its business. In my view, the facts raised by it establish a sufficient interest for it to have standing.

 

[81]            In reaching my conclusion, I fully subscribe to the fundamental principle expressed in the Trustco matter that “the rules of standing should not ordinarily operate to prevent citizens from obtain legal clarity as to their legal entitlements.”[10]

 

[82]            The preliminary point attacking Parmalat’s standing is thus rejected, with costs.

Joinder of the Speaker

 

[83]            The point was also taken on behalf of the Minister that the Speaker of the National Assembly should have been joined by the applicants in the Clover matter because the constitutional validity of legislation is challenged. Given the conclusion that I have reached in this matter that it is not necessary to consider the constitutional challenge upon sections 2 and 3, it is likewise not necessary for me to determine whether the Speaker should have been joined to this application even where the applicants do not claim that any internal procedures of the legislature had been violated.

 

Discussion of review grounds

 

[84]            A further review ground was raised by the applicants in the Clover matter. It was contended that the Minister had (on another vitiating basis) misapprehended his powers and acted ultra vires because the control of imports of dairy products should have been dealt with under the Control of Importation and Exportation of Dairy Products and Dairy Products Substitutes Act, 1986.[11] It was contended that this Act (the Dairy Products Act) had been specifically enacted for that purpose and should have been followed and that it was not open to the Minister to invoke the Act in the circumstance. It was furthermore contended that the Dairy Products Act had not even taken into account or considered by him and that the failure to do so meant that the Minister had not properly applied his mind to his powers and relevant matter.

 

[85]            In argument, Mr Frank referred to the provisions of this Act. He pointed out that its preamble was specifically for the control of the importation and exportation of dairy products and dairy product substitutes and for incidental matters. The items contained in the notice are included in the definition of dairy products in that Act. In terms of ss 2 and 3 of that Act, Cabinet may prohibit imports of dairy products and may permit imports on application of a specific quantity of a dairy product if satisfied that the product is not locally available. Mr Frank submitted that it is a specific Act in respect of a specific industry and submitted with reference to authority that effect should be given to that Act where the legislature had directed its attention specifically to the dairy industry and that it would not be permissible to invoke subsequent legislation of a more general nature. He referred to Khumalo v Director-General of Co-operation and Development[12] where the applicable principles were discussed in detail and where it was held with reference to both earlier and English authority:[13]

 

It is, of course, true that in general an earlier enactment is to be regarded as impliedly repealed by a later one if there is an irreconcilable conflict between the provisions of the two enactments. There is, however, an exception to this general rule. According to Glück Ausführliche Erläuterung der Pandecten book 1 at 514 - 15, the exception applies when the earlier enactment is a special one, because it should not be presumed that the Legislature intended to repeal the special enactment if it did not make it clear that such was indeed its intention. In such a case, says Glück, the later general enactment and the earlier special one should be equated with a rule and an exception thereto. See also Holl Cons third part at 179 n 11, and Utrechtse Consultatien second part at 228 n 19.

 

A similar approach has been adopted in English law. In In re Smith's Estate (1887) 1 Ch D 589 at 595 it was said:

 

. . . (W)here there is an Act of Parliament which deals in a special way with a particular subject-matter, and that is followed by a general Act of Parliament which deals in a general way with the subject-matter of the previous legislation, the Court ought not to hold that general words in such a general Act of Parliament effect a repeal of the prior and special legislation unless it can find some reference in the general Act to the prior and special legislation, or unless effect cannot be given to the provisions of the general Act without holding that there was such a repeal.”

 

The reason for this rule, or rather the exception to the general rule, was given in an earlier case. In Fitzgerald v Champneys 70 ER 958 at 968, the Vice-Chancellor said:

 

. . . (T)he reason in all these cases is clear. In passing the special Act, the Legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated.”

 

And in Corporation of Blackpool v Starr Estate Co Ltd [1922] 1 AC 27 at 34, Viscount Haldane formulated the exception in words reminiscent of those used by Glück. He said:

 

. . . (W)e are bound . . . to apply a rule of construction which has been repeatedly laid down and is firmly established. It is that wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared.”

 

Following English authorities, the existence of the exception has been recognised in our case law. See, for example. R v Gwantshu 1931 EDL 29 at 31; Porter v Union Government 1919 TPD 234 at 238 - 9; Kent NO v South African Railways and Another 1946 AD 398 at 429 - 30, and Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 603. However, the exception is not applicable in every case where the provisions of a later general enactment are in conflict with those of an earlier special enactment. Obviously the exception cannot find application if the later enactment in so many words repeals the earlier one. But even if there is no reference to the earlier enactment in the later one, it may be clear that the Legislature nevertheless intended to repeal the special enactment. If so, effect must of course be given to the implied repeal.  It is for this reason, I think, that in New Modderfontein Gold Mining Co v Transvaal Provincial Administration 1919 AD 367 at 397, Kotze AAJA quoted with approval the following statement of Cooley Constitutional Limitations at 182:

 

It is a familiar rule, however, that when a new statute is evidently intended to cover the whole subject to which it relates, it will by implication repeal all prior statutes on the subject.”

 

See also Durban Corporation and Another v Rex 1946 NPD 109 at 114.

 

The true import of the exception therefore appears to be that, in the absence of an express repeal, there is a presumption that a later general enactment was not intended to effect a repeal of a conflicting earlier and special enactment. This presumption falls away, however, if there are clear indications that the legislature nonetheless intended to repeal the earlier enactment. This is the case when it is evidence that the later enactment was meant to cover, without exception, the whole field or subject to which it relates.

 

[86]            This point was taken in the founding papers. It was not contended on behalf of the Minister that the Dairy Products Act had been repealed by the Act. Mr Namandje instead contended that restrictions upon dairy products may be imposed under both Acts and that it was open to the Minister to make a decision under the subsequent (more general) Act. Mr Frank submitted that once it was accepted that there had been no repeal – either express or implied – then the intention attributed to the legislature was that the Dairy Products Act was meant to meet and provide for all the circumstances of that special case and that the Act, subsequently passed, was not intended to apply to dairy products. This latter submission accords with the principles of the statutory construction amply set out in the above quotation.

 

[87]            Mr Frank also referred to the different powers in the different Acts given to different functionaries. He submitted that a court would be loathe to permit an interpretation which would in turn allow an applicant to approach two functionaries with the same request as this would contemplate two valid contradictory decisions. He referred to authority[14] in support of this contention.

[88]            Mr Frank also referred to the legislative history of the two different provisions. He pointed out that the Act repealed the Import and Export Act, 45 of 1963 which was in similar terms but at that stage administered by the South African Minister before independence. Subsequently, the Namibian legislature introduced the Meat Industry Act[15] in respect of meat products and to control the import and export of meat products. A few years later, the Dairy Products Act was enacted by the Namibian legislature in 1986. Mr Frank submitted that the Namibian legislature thus considered that meat and dairy products related to special instances in respect of which specific and specialised provisions should apply and be dealt with outside the law generally applicable, namely Act 45 of 1963. He also referred to the fact that the Act did not repeal the Meat Industry Act and as it had not also repealed the Dairy Products Act, that those Acts thus applied to those specific industries. He submitted that the Act in this legislative context had nothing to do with the righting of historical wrongs in the context of Namibia’s colonial past, as had been contended by the Permanent Secretary. He correctly contended that a contextual approach to the legislation and its legislative history simply did not support the conjecture of the Permanent Secretary as to what had given rise to the Act. On the contrary, it is clear that it merely followed earlier legislation which had been in place.

 

[89]            Mr Oosthuizen SC, who together with Mr JPR Jones appeared for the DPA and Namibia Dairies, contended that the Dairy Product Act did not provide for quantitative restrictions needed to address the crisis in the dairy industry and only provided for a prohibition on importation and exportation as set out in s 2 of that Act. He submitted that the Minister was thus entitled to invoke the Act, rather than the Dairy Products Act because the latter Act did not include measures of the kind which he considered appropriate. But this submission does not address the thrust of Mr Frank’s argument based upon principles of statutory construction. Nor did it address the failure on the part of the Minister to appreciate the nature of his discretion and powers-not only because the Minister did not have powers under the Dairy Products Act, but also not appreciating the nature of the powers contained in that Act. Nor was Mr Oosthuizen’s submission correct with reference to his characterisation of the powers under the Dairy Products Act. Mr Frank submitted that the position was akin to a decision maker invoking a wrong section of an Act or not appreciating the nature of discretion, with reference to authority.[16]

 

[90]            There is much force in Mr Frank’s argument. I accept that the well reasoned exposition of the applicable principles to statutory construction as set out in the Khumalo matter also reflects the position in Namibia. There is applicable legislation which deals in its own special way with the position of dairy products under Act 5 of 1986. As are meat exports separately dealt with under Act 12 of 1981, which latter Act is applied, implemented and enforced by the Government. The Act did not expressly or by implication repeal these laws. They continue to remain in force and would apply to their specific industries. The Dairy Products Act was intended by the legislature to apply to dairy products. The later more general Act would thus not have been intended to apply to the specialised position and circumstances relating to that industry addressed in the specific legislation applicable to it.

 

[91]            Applying the principles so amply set out in Khumalo, it would not only follow that the Act did not by implication repeal the Dairy Products Act, but that the latter Act continued to apply and was meant to meet and was considered to provide for all the circumstances of that special case (in respect of dairy products). The (Import) Act was thus not intended by the legislature to apply to dairy products. It would follow on this ground alone that, the incorrect legislation having been invoked, the decision embodied in the notice falls to be set aside.

 

[92]            But even if I were to be incorrect in this respect and on the assumption that the Act would apply to dairy products, it would have been incumbent upon the Minister to apply his mind to the provisions of the Dairy Products Act in making a decision to impose restrictions upon the importation of dairy products. There is no evidence that he did so. On the contrary it is clear from the record that he did not do so. On this ground as well, the decision would also fall to be set aside by showing a failure to apply their mind to relevant matter.

 

[93]            Assuming however that the Act may be invoked, both Mr Frank and Mr Heathcote SC (who together with Mr D Obbes appeared for Matador) strenuously submitted that apart from the notice itself which stated that it was published on the authority of the Minister, there was no evidence in the record or on affidavit to suggest that the Minister himself had taken the decision to impose quantitative restrictions or the decision as to the particular quantities referred to in the notice. They both pointed out that the Minister himself had failed to provide any evidence under oath that he had taken the decision. Mr Frank also referred to passages of the Permanent Secretary’s affidavit in which it was rather posited that the Ministry had “the responsibility of ensuring industrial growth and sustainability of Namibian products has taken into consideration the fact that in the short term there may be slight inconveniences to the interest of individuals arising from the implementation of measures contained in Government Notice 245 of 2013”, as opposed to the Minister. The Permanent Secretary then proceeded to enumerate aspects relating to inconvenience of importers as weighed against the dairy value chain in Namibia and the challenges faced by it. There are also other references in his affidavits in both applications which studiously avoided any detail as to when and in what manner and on the basis of what materials the Minister made his decision, despite being squarely (and repeatedly) challenged in that specific regard in both applications and in particular in the Matador application.

 

[94]            Mr Heathcote submitted that the evidence of the Permanent Secretary as to what was in the mind of the Minister as justification for the decision is hearsay and inadmissible. He did so with reference to authority.[17]

[95]            It is well established that it is impermissible for a deponent to give evidence in an affidavit on behalf of another where the latter does not file a confirmatory affidavit to confirm that evidence.[18] The failure on the part of the Minister to file an affidavit in both of the applications is entirely unexplained,[19] particularly in the context where he is specifically challenged as to what material served before him, when and on what basis he made his decision and in seeking his reasons at that time. The only documents reflecting some justification for the decision set out in the notice are the letters not signed by the Minister which had also not been sent out on his behalf. These cannot constitute reasons in the absence of the Minister subscribing to them in any way at all – either at the time by signing the letters or in subsequently explaining who he had delegated to sign on his behalf and confirming those reasons. His failure to state what was in his mind and considered by him in the decision making process as justification for the decision, would render any affidavit by someone else seeking to do so as hearsay and inadmissible. Those statements by the Permanent Secretary thus fall to be ignored even in the absence of an objection or an application to strike out.[20] As was submitted in both applications, the Act required the Minister and no other functionary to decide upon and publish the impugned notice. In the absence of an affidavit by the Minister, particularly when challenged that he had not taken the decision and contended that he had failed to apply his mind in the different respects contended for, the matter is taken to be considered on the basis of admissible evidence and inferences to be drawn from them, including the failure on the part of the Minister to make any affidavit in the absence of any statement that he was unavailable.

 

[96]            This failure is compounded by the role of the Cabinet in the decision making process. It is also well established that where a functionary is vested with a discretionary power to take a decision in terms of legislation, then that power is to be exercised by that very functionary and no-one else. That functionary can furthermore not act upon the instructions or under the dictation or direction of another entity or body or person not vested with the power to make that decision. A functionary also cannot abdicate his or her decision making responsibility in favour of another entity or person or body. This is not only the position in our common law[21] but also in England.[22]

 

[97]            It is clear from the facts that the Minister in his memorandum to Cabinet requested that body to make a decision that there should be quantitative restrictions contemplated by the Act. That decision is one which only the Minister is in law authorised to make. The legislature has under the Act after all conferred that power upon the Minister and not upon the Cabinet. It is thus the Minister who is required by law to exercise that power and not Cabinet.

 

[98]            But the Minister’s memorandum – under his hand and the only document of any relevance in the record signed by him – fails to appreciate this fundamental fact (being the nature of his statutory powers) by seeking the decision of the Cabinet to impose the restrictions under the Act or approve the exercise of such power. The memorandum operates on an assumption that it is for the Cabinet to consider the content of the DPA submission and essentially decide in principle whether to impose quantitative restrictions of dairy products under the Act. The Minister’s memorandum also recommends implementation of the restriction measure (as approved and thus decided by Cabinet) and also refers to:

 

The decision of Cabinet communicated through the normal communication channels’

 

and finally that:

 

The Ministry of Trade and Industry will also notify the public about the imposition of the quantitative restriction measures through a Government Gazette Notice.’

 

[99]            The Minister did not refer to any decision taken by him but rather the implementation of a measure as decided by Cabinet which the Ministry (and not even himself) notify the public by way of a notice in the Gazette. This is also consistent with the Permanent Secretary’s view that the Cabinet decision was a policy decision which is not implemented unless the appropriate official takes a decision (to implement it) as authorised by law. This mistaken approach would appear to be premised upon an understanding that the decision to impose the measure was one of policy to be determined by Cabinet (as argued by Mr Namandje) and for the Minister merely to publish in order to implement it and promulgate that decision (of Cabinet). This was essentially the kernel of the Permanent Secretary’s elaborate ex post facto rationalisation fact justification for the Cabinet decision.

 

[100]        This in my view not only demonstrates the failure on the part of the Minister to properly appreciate his powers and the statutory context within which they were to be exercised under that Act, but would also indicate an impermissible abdication of that power to the Cabinet. The decision would also fall to be set aside on this ground as well.

 

[101]        There can be nothing wrong for a Minister to consult Cabinet on policy matters as is contended for by the Permanent Secretary. But when a specific statutory power is conferred upon a Minister, then it is to be exercised by him or her and not by the Cabinet. Plainly policy matters are within the realm of Cabinet deliberations. But when statutory powers are conferred upon a functionary, in this case the Minister, that functionary is required to exercise those powers. The Minister is to apply his mind and be satisfied that the jurisdictional facts and requirements of the statutory provisions are complied with. He is to be satisfied it is necessary or expedient in the public interest to prohibit or restrict imports as contemplated by s 2. The legislature has appointed the Minister to make that determination. Even if he secures advice, the decision itself is to be his and not Cabinet’s to “direct” him to “institute” quantative restrictions on dairy product imports. The facts of this matter not show that the Cabinet made the decision to impose the restrictions and not the Minister. This is supported by the contemporaneous letter by the Permanent Secretary to the Chairperson of the Meat Board, written straight after the notice was published in which he referred to Cabinet’s decision. This was addressed prior to securing legal advice after the applications were brought and giving rise to his detailed attempt to rationalise about the role of the Cabinet.

 

[102]        Mr Namandje furthermore contended that the decision did not constitute administrative action for the purpose of Art 18 and that it fell within the realm of policy and thus was not reviewable in an ordinary sense, but only if it conflicted with the principle of legality on the basis of Pharmaceutical Manufacturers and Masetlha.[23] This approach cannot be sound and is not based upon a correct interpretation of the Pharmaceutical and Masetla matters which did not restrict review proceedings in the manner contended for. Both matters concerned the exercise of public power by the President which were not reviewable in the sense of requiring procedural fairness and on the basis of common law review grounds but nevertheless needed to meet constitutional constraints on the exercise of executive authority and the principle of legality which meant that the powers must be exercised lawfully and rationally. The position in this matter is entirely different. The Minister was after all exercising a power conferred upon him under legislation. The notice did not constitute the formulation of policy but rather its implementation. Mr Namandje’s approach is also not sound upon the authority claimed in support of it and is in conflict with the common law.[24] Furthermore, the Supreme Court has made it clear that a challenge to subordinate legislation on review grounds constitutes administrative action for the purpose of Art 18 which would apply to that decision making.[25] This also accords with the common law power to review subordinate legislation, entrenched by Art 18.[26][27]

 

[103]        It would appear from the facts that the Cabinet had made a decision in principle to impose the quantitative restrictions. This decision eventually found its way into the notice. As I have stressed, very soon after the notice was published, this was the tenor of the contemporaneous correspondence of the Permanent Secretary in addressing the Chairperson of the Meat Board to administer the new permit system. He did so on the authority, not of a decision taken by the Minister, but rather on the authority of a Cabinet decision. This is telling and not properly explained by him in his lengthy explanation provided subsequently for the decision making process.

 

[104]        What is clear from the record is that the Cabinet had deliberated upon the issue and made its decision to direct the Minister to proceed with quantitative restrictions under the Act. That is contrary to what the Act requires and is impermissible.

 

[105]        This should also and in any event have been disclosed to the interested parties in the subsequent consultation which took place. The right to be heard after all contemplates that those affected by a decision should be in a position to address relevant material which is adverse to them. This did not occur by not disclosing the Cabinet decision to them. This certainly lacked transparency and adversely impacted upon the right to be heard. The right to be heard and fairness demand that persons adversely affected by a decision be afforded the opportunity to be heard with a view to producing a favourable result and require that they are apprised of factors which they need to address. As was stressed by this court:

 

. . . Art 18 of the Constitution of Namibia pertaining to administrative justice requires not only reasonable and fair decisions based on reasonable grounds, but inherent in that requirement, fair procedures which are transparent.[28]

 

[106]        It was also stressed by this court:

 

Effective judicial review must in many cases depend on the Court being properly informed as to what moved the administrative body to decide as it did. It seems to me that a body which is required to act “fairly and reasonably” can in most instances only do so if those affected by its decisions are apprised in a rational manner as to why that body has made the decision in question.’[29]

 

[107]        Mr Namandje’s contention that the Minister was not obliged to afford any of the parties the right to be heard (given his stance that Art 18 did not apply) is not only gainsaid by the Permanent Secretary in the Matador matter on behalf of the Minister as I have pointed out above, but as a matter of law is unsound as it would be required by Art 18 which does apply.[30] As was found by the Supreme Court in the Petroneft matter, the duty to act fairly is not a rigid principle but is a flexible concept and its application would depend upon the exigencies of each specific matter.[31]

[108]        In this context, it was acknowledged by the Ministry that the parties affected by the decision were entitled to be heard. That acknowledgement, expressly made in the Matador matter, is in my view correct. The powers accorded to the Minister under the Act are far reaching and their exercise has the potential of affecting the right of doing business and impacting upon contractual relationships. The rules of procedural fairness which thus apply to decision making under ss 2 and 3 of the Act require that the Minister is to have an open mind in entertaining representations so as to have a complete picture of the facts and circumstances applicable to the exercise of the powers under those sections.[32] The Cabinet was alive to the need for interested parties to be heard before its decision would be implemented by requiring consultations with stakeholders. But in making its decision, the Cabinet itself did not apply that principle and only took into account the application of the DPA which, as was pointed out by the applicants in Clover, only motivated restrictions of milk products and not those others subsequently included in the notice, (even if the others are also referred to in the Cabinet resolution) and without affording affected parties the right to be heard on the DPA application.

 

[109]        In his memorandum to the Cabinet, the Minister provided three reasons why local producers could not compete with South African dairy producers. The primary reason concerned the use of rBST which, he contended, rendered Namibian dairy producers less competitive. This reason advanced by DPA in support of the application turned out to be unfounded in respect of the applicants who were entitled to point out to the decision maker that it did not apply to them because of the undertakings provided to the applicants in Clover that the milk obtained by them was not subjected to rBST. This fact was not taken into account by the Cabinet and there was no evidence of the Minister ever considering this aspect. The applicants should also have been able to challenge that the other grounds advanced by DPA were lacking in relevance. In this regard, it was not explained how VAT could affect the issue at all.

 

[110]        In short, it soon becomes apparent that the entire process viewed as a whole was hopelessly and fundamentally flawed. The Minister’s memorandum sought a decision from Cabinet to impose restrictions. Cabinet then decided (without audi) that there should be restrictions and directed him to impose them by notice in the Gazette. The public consultation which proceeded after this was without any disclosure of the decision. On the contrary, the Permanent Secretary created the impression that views were sought as to whether the power under s 2 should be invoked whereas this had as a matter of principle already been decided. The right to be heard was in these circumstances not properly accorded to affected parties. After this, the notice was published in the name of the Minister but without any shred of evidence – either contemporaneous or by way of affidavit afterwards – that the decision was taken by him and what he had taken into account when doing so. On the contrary the contemporaneous documentation does not indicate any documentation had served before him. There is no briefing paper or summary prepared for the Minister, no note as to any oral presentation of the matter to him or its date and no text of the notice under his hand before being transmitted to the Gazette. Apart from the notice published, the only evidence of any decision is that of the Cabinet which is not authorised to make that decision under the Act.

 

[111]        The process of the decision making is thus plagued with manifold vitiating irregularities which establish that the Minister (and the Ministry) misconstrued the nature of his powers, did not properly apply his mind to relevant matter such as the requirements of the Act or, the Dairy Products Act, the submissions made by the applicants in addressing the grounds and factual inaccuracies contained in the DPA application. It would also seem that the Minister approached the matter – insofar as he made a decision – with less than an open mind required by s 2, having expressed himself unequivocally in favour of quantitative restrictions in his memorandum to Cabinet. The duty to act fairly under Art 18 was also infringed by the failure to inform interested parties of the prior Cabinet decision on the matter. All these factors were compounded by the subsequent failure to provide reasons when requested by Clover. The Supreme Court has emphatically stated:

 

Furthermore, it seems to me that it is implicit in the provisions of art 18 of the Constitution that an administrative organ exercising a discretion is obliged to give reasons for its decision. There can be little hope for transparency if an administrative organ is allowed to keep the reasons for its decision secret. The Article requires administrative bodies and officials to act fairly and reasonably. Whether these requirements were complied with can, more often than not, only be determined once reasons have been provided. This also bears relation to the specific right accorded by art 18 to persons to seek redress before a competent Court or Tribunal where they are aggrieved by the exercise of such acts or decisions. Article 18 is part of the Constitution's Chapter on fundamental rights and freedoms and should be 'interpreted broadly, liberally and purposively. . . “ to give to the article a construction which is most beneficial to the widest possible amplitude”. (Government of the Republic of Namibia v Cultura 2000 (supra at 340B-D (NR)).) There is therefore no basis to interpret the Article in such a way that those who want to redress administrative unfairness and unreasonableness should start off on an unfair basis because the administrative organ refuses to divulge reasons for its decision. Where there is a legitimate reason for refusing, such as State security, that option would still be open.’[33]

 

[112]        Given the conclusion I have reached on these review grounds, it is not necessary to traverse the further review grounds raised in both applications, including the reliance upon the SACU agreement.

 

[113]        It follows that the applications to set aside Government Notice 245 of 2013 must succeed. The parties were mostly represented by two instructed counsel.[34] This was justified in these applications. Although the main relief sought by Matador was to strike down ss 2 and 3, it is clearly substantially successful in its main application but not in respect of its application for interim relief which it did not proceed with. I was not asked to make any ruling on those costs. The parties in that application may seek a ruling in that regard if required.

 

[114]        The following order is made:

 

1.            Government Notice 245 of 2013 is hereby set aside.

2.            Those respondents opposing the applications are to pay the costs of the applicant(s) in each matter, jointly and severally, the one paying the other(s) to be absolved. This does not include the costs in the Matador application with regard to the application for interim relief.

3.            The costs in these applications include those of two instructed and one instructing counsel.

 

 

 

D SMUTS

Judge

APPEARANCES:

 

IN MATADOR ENTERPRISES (PTY) LIMITED // MINISTER OF TRADE AND INDUSTRY AND OTHERS

 

APPLICANT:                                           Mr R. Heathcote, SC with him Mr D. Obbes

Instructed by Koep & Partners

 

FIRST, SIXTH to EIGHTH

RESPONDENTS:                                  Mr T. Phatela

Instructed by the Office of the Government Attorney

 

SECOND and THIRD

RESPONDENTS:                                  Mr G. Oosthuizen, SC with him Mr J.P.R. Jones

Instructed by Engling, Stritter and Partners

 

IN CLOVER NAMIBIA (PTY) LTD AND ANOTHER // THE MINISTER OF TRADE AND INDUSTRY AND OTHERS

 

APPLICANT:                                           Mr T.J Frank, SC with him Ms N. Bassingthwaighte

                                                                  Instructed by LorentzAngula Inc.

 

FIRST and FIFTH

RESPONDENTS:                                  Mr S. Namandje with him Mr T. Chibwana

                                                                  Instructed by the Office of the Government Attorney

 

 

SECOND and THIRD

RESPONDENTS:                                  Mr G. Oosthuizen, SC with him Mr J.P.R. Jones

Instructed by Engling, Stritter and Partners


[1] Act 30 of 1994.

[2] Kauesa v Minister of Home Affairs and others 1995 NR 175 (SC) at 184; De Beer NO v North-Central Local Council and South-Central Local Council and others (Umhlatuzana Civic Association intervening) 2002(1) SA 429 (CC) at par [24].

[3] Government Notice 61 of 2007.

[4] Act 21 of 1981.

[5] 1995 NR 175 (SC) at 184 and De Beer NO v North-Central Local Council and South-Central Council and others ((Umhlatuzana Civic Association intervening) 2002(1) SA 429 (CC) at par [24].

[6] Act 5 of 1986.

[7] Kerry McNamarra Architects Inc v Minister of Works, Transport and Communication 2001 NR 1 (HC) (full bench) at 3J-4A; Trustco Ltd v Deeds Registries Regulation Board and others 2011(2) NR 726 (SC) at par [17].

[8] Supra.

[9] Supra at par [17] and[18]

[10] Supra par [18] at p 733. Although not a Namibian company, the Supreme Court in Immigration Selection Board v Frank and another 2001 NR 107 (SC) at 170 held that Art applies to non citizens (Per Strydom CJ, diss) whose views on Art 18 were subscribed to by the majority).

[11] Act 5 of 1986.

[12] 1991(1) SA 158 (N).

[13] Supra at 164C-165E.

[14] Ensor v The Master 1983(1) SA 843 (A) at 854 B-C.

[15] 12 of 1981.

[16] Computer Investors Group v Minister of Finance 1979(1) SA 879 (T) at 894 H – 895 E and the authorities relied upon there.

[17] Von Abo v Government of the Republic of South Africa and others 2009(2) SA 526 (T) at par [41]-[54]; Kessl v Ministry of Lands and Resettlement and others and two similar cases 2008(1) NR 167 (HC) at 208F-J, 209A-H.

[18] Gerhard v State President and others 1989(2) SA 499 (T); Von Abo supra at par [46] and the authorities collected there.

[19] It is not even suggested in any of the three affidavits signed by the Permanent Secretary (on 14 October 2014 in respect of Matador’s application for interim relief) and 12 and 27 February 2014 in answering the Matador and Clover applications respectively) that the Minister was not available.

[20] President of the Republic of South Africa and others v South African Rugby Football Union and others 2000(1) SA 1 (CC) at par [105]. 

[21] De Ville Judicial Review of Administrative Action in South Africa (revised 1st ed) at 148 and the authorities cited in footnote 448. See also President of the RSA v SA Rugby Football Union and others supra at paras [38]-[41].

[22] Wade & Forsyth Administrative Law (7d) at 358-360; See generally Matador Enterprises (Pty) Ltd t/a National Cold Storage v Chairman of the Namibian Agronomic Board 2010(1) NR 212 (HC) at 218.

[23] Pharmaceutical Manufacturers Association of SA and another: In re ex parte President of the Republic of SA and others 2000 (2) SA 674 (CC) at par [17]; Masetlha v President of the RSA and another 2008 (1) SA 566 (CC) at par [78]-[81].

[24] Minister of Mines and Energy and others v Petroneft International and others 2012(2) NR 783 (SC).

[25] Minister of Health and Social Services v Medical Association 2012(2) NR 566 (SC).

 

[27] Immigration Selection Board v Frank supra at 171 A.

[28] Aonin Fishing (Pty) Ltd and another v Minister of Fisheries and Marine Resources 1998 NR 147 (HC) at 150 F-H; cited with approval by the Supreme Court in Government of Namibia v Sikunda 2002 NR 203 and by Strydom CJ (diss) in Chairperson of the Immigration Selection Board v Frank and Another 2001 NR 107 (SC) at 170-171.

[29] Kersten t/a Witvlei Transport v National Transport Commission 1991 NR 234 (HC).

[30] Even upon the narrower basis of the legality contended for by Mr Namandje (where administrative action is not involved), the process followed in reaching a decision must be rational and to exclude relevant stakeholders may render it irrational. See Albutt v Centre for the Study of Violence and Reconciliation and others 2010 (3) SA 293 (CC) at paras [65]-[68]. See also Democratic Alliance v President of the RSA and others 2013 (1) SA 248 (CC).

[31] Supra at par 38.

[32] See Jansen van Rensburg NO v Minister of Trade and Industry NNO 2001(1) SA 29 (CC) at par [24].

[33] Chairperson of the Immigration Selection Board v Frank supra at 174-5 per Strydom (diss). Although he dissented in the result, this statement as to the law was concurred in by the majority.

[34] The Governmental respondents in the Matador application were represented by Mr Phatela although the heads were prepared by Mr G. Hinda, SC and Mr Phatela.


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