Although we have no specific information from your client about its level of imports under the different tariff headings, I have allowed for a significant level of imports to continue to avoid impacts on end user prices through the absence of competition as well as the interests of the importers. Thus the court confirmed that, as a general rule, procedural fairness is not an automatic consideration which a court has to take into account when reviewing executive action on the ground of the legality principle. As I have endeavoured to demonstrate above, the submission to Cabinet sought Cabinets concurrence in the policy the Minister had proposed to introduce. NAMIBIA SWAZILAND INTERNATIONAL Private Sector ENTREPRENEURS SCAM ALERT!!! The court below found in favour of the respondents holding as follows in paras 104-105: 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. Therefore, I accept it. The failure to consult the respondents is visible from the memorandum to Cabinet which contains only the contents of the DPA application. . LATEST GOVPAGE UPDATES . The decision was communicated through a notice in the Government Gazette, published under the name and signature of the Minister of Trade and Industry. MAINGA JA partially dissenting (HOFF JA concurring): I have had the privilege of reading the judgment of the Chief Justice in this matter. It has characteristics of both policy formulation and policy implementation. MINISTRY OF TRADE & INDUSTRY | Windhoek Namibia | Search in Africa Furthermore the price level is also higher because of the pan-territorial pricing system that is accepted and supported by most retailers and consumers, because it caters for a national price that absorbs all distribution costs. (I may pause to observe that it is apparent from the date on it that this memorandum was submitted to the Cabinet prior to the holding of the public consultation meeting of 18 July 2013, but after the receipt of written submissions whose deadline was 24 May 2013). Therefore, I accept it. They emphasised that the Ministers intention was not to restrict the importation of dairy products for resale but for any purpose. The letter reads, Cabinet by its decision no. The Centre serves as the Namibias official investment promotion and facilitation agency and the first point of call for investors, The development of a vibrant and competitive domestic economy and market conditions function of the Ministry is administered by the Directorate: Commerce in the Department of Trade and Commerce. At the recent AGM of the DPA Dr. Koos Coetzee of the South African Dairy Producers Association diplomatically encouraged Namibian dairy farmers to face the reality of their situation. Therefore, the interpretation which appears to me to be consistent with the Khumalo rule and other rules of statutory interpretation is that, although the Dairy Products Act remains the main or primary legislation which must be invoked when regulating the importation and exportation of dairy products, Government may invoke either of the two Acts depending on the intention or purpose of restricting or prohibiting the importation of dairy products. Whether the impugned decision is of an administrative or executive nature, This court has been asked to decide whether the impugned decision is of an administrative or executive action. Ministry of Trade and Industry, Government of Namibia | EDIRC/RePEc They cite. The Ministry is responsible for formulating and implementing policies and strategies that create and facilitate growth in industry, investment, trade, tourism, transport, co-operative businesses, micro small and medium enterprises (MSME's) and enhance metrology, standards and consumer protection. Ministry of Trade and Industry. 11 See Public Policy and the Nature of Administrative Responsibility in Rourke (ed) Bureaucratic Power in National Politics (1965) at 165 to 167. Indeed under section 83(c) of the Constitution, the President has a duty to promote the unity of the nation and that which will advance the Republic. The question for determination [by the Court] is reduced to whether the decision to exclude victims from participating in the special dispensation process is rationally related to the objectives that the President set out when he announced the process. (My emphasis.). As already stated, it was not apparent from the record that the Attorney-General and the Meat Board were consulted. The Ministry of Trade & Industry is the lead policy advisor to government on trade, industrial and private sector development with responsibility for the formulation and implementation of policies for the promotion, growth and development of domestic and international trade and industry. International Relations and Cooperation. The other appellants are the Attorney-General of Namibia (second appellant), the Minister of Finance (third appellant) and the President of the Republic of Namibia (fourth appellant). Perhaps the use of the word direct by Cabinet in reply to the memorandum was unfortunate as found by the Chief Justice, so is the use of the word decision referring to the Cabinet approval by the Minister and his PS. 29 Meditari Accountancy Research Vol 12 No 2 (2004) at 166-167. The Permanent Secretary responded to Matadors lawyers clarifying that the consultation process had not yet been concluded and that the Ministry was preparing the record of 18 July 2013 meeting and this would be circulated in due course. The doctrine of the rule of law is enunciated in Art 1(1) of the Namibian Constitution as follows: The Republic of Namibia is hereby established as a sovereign, secular, democratic and unitary State, founded upon the principles of democracy, the rule of law and justice for all., Thus, the principle of legality, as a pathway to reviewing executive action, flows directly from Art 1(1) above. I proceed to deal with the contention regarding the author of the impugned decision. Uganda: Trade Ministry Defends Procurement Record, Says All Were Lawful quick facts; trade agreements; government. In making the impugned decision, the functionary would have to take into account Namibias foreign relations with SACU member States. Reluctantly because, the question I keep on asking myself is, once Cabinet had directed the Minister or the Ministry to institute interim quantitative restrictions as sought or suggested by the Ministry, what else was there for the Minister to decide on except to execute the directive? The question regarding who took the impugned decision is best answered by assessing the unfolding of events leading to the publication of the Government Notice which sets out the decision to impose the quantitative restrictions. With that single monotonous version Cabinet was tempted to agree without much ado. (My emphasis). It is submitted, however, that the Minister cannot exercise his discretion based on the Submissions as they currently stand. Although Matador does not deal with this matter extensively in their heads of argument, counsel indicated during the oral hearing that they associate themselves with Clovers arguments on this issue. Homepage - Ministry of Trade and Industry - Ministry of Trade and The Minister by then had made a submission to Cabinet, contained in a Memorandum dated 27 June 2013, subsequent to the application made to him by the Dairy Producers Association (the DPA). Also, the price structure for local primary producers is not satisfactory and it does not encourage the establishment of new milk producers. That the impugned decision amounted to an executive action, because it involves the formulation of a policy to impose restrictions on selected imported dairy products. For instance, the Minister would need to have accurate information which shows the challenges being faced by the local dairy production industry, the amount of dairy products imports and their selling price, the competitive or unfair advantages that the external dairy production industry has had over the local industry and the countrys international trade law obligations. The decision was communicated through a notice in the. In terms of s 2(1) of the Import and Export Control Act, the Minister may only impose quantitative import restrictions when such measures are in the public interest. Second applicants head office is situated at Strand Road, Stellenbosch, Western Cape, South Africa. At the time it was held, the decision to restrict certain dairy products had been taken. The products from that country are labelled as surpluses on the Namibian market. In light of the above you are hereby informed to administer the implementation of the quantitative restrictions on the import of dairy products.. The Minister had to comply with the principle of legality, which dictates that the functionary must only use the power to achieve the purpose for which the power is given at law.9 I agree with the appellants that he applied the correct Act because the Import and Export Control Act is the Act, between the two, which allows the Minister to regulate importation of any goods into Namibia, for trade or any other use. It is clear from the tone of the letters that the Minister was put under pressure to act with speed. While the legislation has conferred the powers on the Minister to impose quantitative import restrictions on specific dairy products, the Minister is entitled to consult Cabinet in the crafting of a policy as part of Cabinet collective responsibility. This averment was not contested by the respondents. On the constitutional challenge, the High Court did not find it necessary to decide the issue as the dispute had been decided on review grounds. On this issue, it will be recalled that this court has found the impugned decision to be an executive action. On the constitutional challenge, the court a quo found it unnecessary to decide the issue in light of its findings on the review grounds. On review of the impugned decision, the court a quo found the decision to impose the quantitative restrictions to be invalid and it set the decision aside. This case is typical. [2] The current[update] minister is Lucia Iipumbu. It is no longer possible for the DPA to pull wool over the eyes of long suffering Namibian consumers, but sadly consumers are left without recourse because of the absence of an effective consumer interest association. In my respectful view, the question therefore should be: whether procedural fairness must be treated as an implied element of rationality, given the circumstances of the case placed before us. It only regulates dairy products which are imported into Namibia for purposes of trade. It will, as we have said above, depend primarily upon the nature of the power. Search. The appellants disagree with the aforementioned finding and formulate their disapproval as follows: Para 3 and 4 of the founding affidavit filed on behalf of Clover alleged that Parmalat is a South African registered company which exports dairy products to Namibia for distribution by its current agent, Matador Enterprise (Pty) Ltd. Ministries of Trade or Commerce | EDIRC/RePEc The schedule to the Notice provided for applications for import permits and their issue, presentation and period of validity. The role of Cabinet in the formulation of policy. Cabinet had taken a decision on 2 July 2013, in response to the Ministers memorandum. Monday to Friday 08:30 ~ 16:30 Business and Intellectual Property Authority (BIPA) 3 Rhr Street, Northern Industrial Area P.O.Box 185 Windhoek, Namibia Tel: +264 61 299 4400 Fax: +264 61 401 061 Email: info@bipa.na Without the Ministers affidavit, this court is left to speculate as to when or at what point he made the decision. Carl Friedrich11 explains the reason for this as follows: Public policy, to put it flatly, is a continuous process, the formation of which is inseparable from its execution. In the comprehensive Memorandum the Minister carefully articulated what factors and circumstances he considered in formulating the intended policy regarding the importation of dairy products into Namibia. Thus, in my view, opportunities were given to your client to make its inputs.. As soon as the protection legislation was enacted the price skyrocketed to the current N$13-00 or more per litre! They also sought an order declaring ss 2 and 3 of the Import and Export Control Act 30 of 1994, in terms of which the decision was allegedly taken, unconstitutional. For this reason and other reasons given above, I conclude that Parmalat did not show direct and substantial interest in the matter and therefore does not have locus standi. [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 obtaining legal clarity as to their legal entitlements., [82] The preliminary point attacking Parmalats standing is thus rejected, with costs.. . The appellants contend that the respondents were properly consulted before the final decision was made to impose the quantitative restrictions of the goods in question. This is evident from the first page of the notice. 14 See Permanent Secretary, Department of Education and Welfare, Eastern Cape and another v Ed-U-College (PE) (Section 21) Inc 2001 (2) SA 1 (CC) (Ed-U-College) para 18 and SARFU above note 28 para 142. Whether the court a quo erred by failing to decide the constitutional challenge. Second, 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 (ESL), Ultra High Temperature (UHT) milk, etc. This did not occur by not disclosing the Cabinet decision to them. 40 Christina Murray & Richard Stacey in Woolman & Bishop (eds.) The court found procedural fairness to be relevant as an element of rationality, given the circumstances of the case. Prohibition of imports into and exports out of ones territory is such a crucial undertaking that cannot be taken lightly. That being the case, on the Ministers own admission in the letters to Koep & Partners and LorentzAngula Inc for Matador and Clover respectively, he makes it very clear that he received the respondents interventions after the meeting of 18 July 2013. With the in principle approval of Cabinet, this Ministry proposes to put in place a feasible quantitative import restriction measure the format of which will be determined and agreed upon through a process of consultation with relevant stakeholders, namely the Ministry of Agriculture, Water & Forestry, Office of the Attorney-General and the Meat Board. (Added emphasis.). PDF BUSINESS - Economist We at PwC Namibia, in association with the Ministry of Industrialisation, Trade and SME Development, the Namibia Investment Centre and Namibia Chamber of Commerce and Industry, are excited to launch the second edition of the Business and Investment Guide for Namibia. In doing so, this court bears in mind that a decision is likely to be more of policy formulation if it is influenced by socio political considerations for which public officials are accountable to the electorate22 or where the decision is based on considerations of comity or reciprocity between Namibia and foreign states or involving policy considerations regarding foreign affairs,23 or where the decision involves the balancing of complex factors and sensitive subject matter.24. This report elicited correspondence by the lawyers representing the respondents. Ministry of Industrialisation, Trade and SME Development The restriction on imports does affect Parmalats export business. The letters were not received by Matadors and Clovers lawyers. The rule has been applied in previous cases in South Africa, notably R v Gwantshu 1931 EDL 29 at 31 and Porter v Union Government 1919 TPD 234 at 238. Namibia Ministry of Trade and Industry - www.govpage.co.za Also, the factors contributing to the inability of the Namibian dairy industry to effectively compete with the South African dairy industry, the main origin of the adverse imports were addressed. In my view, this casts a doubt as to whether there is any existing legal relationship (of agency) between Matador and Parmalat. Principal Economist at Ministry of Trade and Industry -Namibia Namibia. Therefore, the flawed nature of the meeting of 18 July 2013 could not have had a bearing on the decision.. I note that no information was provided as such on the current level of imports by your client or how the application for partial restriction of imports could affect it. Thus the impugned decision cannot be regarded as purely policy making and neither can it be regarded as purely policy formulation. Matadors lawyers requested the Minister to clarify if it was true that he had made a decision to impose the quantitative import restrictions. This Ministry is also responsible for promoting growth and development of the economy through the formulation and implementation of appropriate policies to attract investment, increase trade, develop and expand the countrys industrial base. In its approval of the restrictions, Cabinet envisaged consultations with other stakeholders, which did not happen given the fact that the meeting of 18 July 2013 was not only a charade but also a false facade. The right to be heard requires no repetition, it is sacred, one of the main pillars of Art 12 of the Constitution of the Republic.44 The authors Wade & Forsyth,45 refers to R v University of Cambridge46 and goes on to say: According to one picturesque judicial dictum, the first hearing in human history was given in the Garden of Eden: I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. In the same vein, the respondents urged the court to make a costs order in their favour should the appeal be dismissed and their cross-appeal upheld. Regarding the nature of the power exercised, it is common cause that the impugned decision involves exercise of public power with a potential to adversely affect the interests or rights of certain sections of the public. The same notice called upon interested parties to make submissions no later than noon of 24 May 2013 in support of or objection to the application by the DPA. 17 Involving a consideration of political factors such as comity or reciprocity between the countries involved. The Minister applied the Import and Export Control Act instead of the Dairy Products Act. The scenario I have sketched above, shows very clearly that as regards Clover and Matador they were meant to believe falsely that the consultations were still continuing. Even the stakeholders the Minister envisaged in his memorandum, only the Minister of Agriculture, Water and Forestry (MAWF) then made a presentation at the consultative workshop of 18 July 2013. Turning to the merits of the appeal, the issues for adjudication were whether the Minister applied the correct legislation; whether the decision taken amounted to administrative or executive action; whether the Minister took the decision or he unlawfully abdicated from the responsibility to take the decision; whether Matador, Parmalat and Clover have the right to procedural fairness and if so, whether the Minister acted in a procedurally fair manner; whether the Minister applied his mind when the decision was taken to impose the quantitative restrictions; whether the court a quo erred when it failed to pronounce itself on the constitutional challenge; and whether the impugned decision and s 2 and s 3 of the Import and Export Control Act are unconstitutional. In view of these efforts by the Minister to obtain information, there is no reason for this court to doubt that by the time he sent the Memorandum to Cabinet, he had obtained accurate and sufficient information to make a rational decision. Both Clover and Matador submitted representations to the Minister, objecting to the proposed restrictions but further requesting an extension of the deadline to allow them to make detailed submissions. That meeting has been characterised as a charade by the court a quo and the Chief Justice. Ministry of Industrialisation and Trade (MIT) is responsible for promoting growth and. They further allege that the failure to make such a disclosure robbed the respondents of their right to a fair hearing because the respondents were misled to make submissions on the question whether the restrictions should be imposed or not when in fact they were supposed to make submissions on why Government should back down from the decision to impose the quantitative restrictions.
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