Court name
High Court Main Division
Case number
APPEAL 352 of 2013
Title

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 (APPEAL 352 of 2013) [2014] NAHCMD 156 (16 May 2014);

Media neutral citation
[2014] NAHCMD 156
Coram
Smuts J










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 10
th/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 1
st
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.