A series of considerations may be relevant to deciding on which side of the line a particular action falls.12. Thus the court was of the view that it would be irrational to aim to achieve national unity by pardoning the perpetrators without properly consulting the victims of the perpetrators crimes. Matadors lawyers requested the Minister to clarify if it was true that he had made a decision to impose the quantitative import restrictions. So was the situation in the case of Clover, when in response to the letter from its representatives, the Minister said: Your client had ample opportunity to provide specific information on the level of imports in this regard, but declined to present the written submission or provide clarification on any specific concerns at the public consultation. Meriam Tjaimi - Economist - Ministry of Trade and Industry - LinkedIn 245 of Government Gazette 5285 of 16 September 2013 in which you introduce quantitative restrictions on the importation of dairy products into Namibia with effect from 16 October 2013. NamibLII is the embodiment of this mandate making annotated statutes, judgments, and gazettes available in a user-friendly format. The consumers as Mr Gericke correctly observed were left at the mercy of the DPA, be it on the prices, the quality and/or supply and demand of the products. The restriction on imports does affect Parmalats export business. Cynthia Vulika Nashandi Law | Real Estate | Private Equity | Commerce | Admitted Legal Practitioner of . This included whether the appeal was properly lodged in this court as well as whether the company Parmalat had locus standi in this matter. 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. Rather, Matador describes itself as an importer of the affected goods but does not confirm being an agent of Parmalat. However, the Import and Export Control Act deals with all goods imported into Namibia for any reason. This policy remained in place for 5 years, until January 2012. It has characteristics of both policy formulation and policy implementation. Section 2 provides that the Ministers decision should be executed by way of a notice published in the Government Gazette. The Minister applied the Import and Export Control Act instead of the Dairy Products Act. Please Visit our Homepage for assistanceHomepage for assistance I have already found that the Import and Export Control Act is the appropriate legislation upon which the impugned decision should be made. More recently in South Africa, in Minister of Justice and Constitutional Development & others v Southern Africa Litigation Centre & others,7 the court stated specifically that: Where there is legislation dealing generally with a topic and, either before or after the enactment of that legislation, the legislature enacts other legislation dealing with a specific area otherwise covered by the general legislation, the two statutes coexist alongside one another, each dealing with its own subject-matter and without conflict. Evidently, the decision was made by the Minister and not by Cabinet. Company registration is done with the Registrar of Companies within the Ministry of Trade and Industry. This court has to take the inquiry further to consider the subject matter of the impugned decision in order to establish whether the issues dealt with in making this decision are related more to policy implementation or policy formulation. Information and Communication Technology. On the contrary, the review record reveals a proper application of his mind to the relevant issues, the Chief Justice went on to find. Further to that, if the Khumalo rule of interpretation is applied, it seems to me that the Import and Export Control Act, as a general Act, does not seek to repeal the Dairy Products Act but it deals with matters which are not dealt with under the Dairy Products Act. The basis upon which the court a quo made this finding may be summed up as follows. 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. No such response was ever received. 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. The High Courts findings may be summarised as follows: On Parmalats locus standi, the court a quo found that Parmalat had demonstrated sufficient standing and its application should therefore be entertained by the court. Join to view profile Ministry of Trade and Industry . To establish whether the impugned decision leans more towards an executive or administrative action, I will consider the following factors: source of the power, nature of the power exercised and the subject matter dealt with by the impugned decision. (Emphasis added). Hast thou not eaten the tree, whereof I commanded thee thou shouldst not eat? And the same question was put to Eve also.. Every letter including the DPA application are headed urgent interim measures . As the Permanent Secretary indicated at the public consultation, thereafter the Minister would be briefed and make his decision based on all inputs received. This cannot be a typical daily function of Government. These are typical characteristics of an administrative action.14 However, on their own these attributes do not distinguish administrative conduct from executive conduct. Default Welcome Page - Gov The first was an invitation on 15 May 2013 calling on stakeholders to submit written submissions on the subject matter. Namibia Trade Network - a Review of Namibia 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. It so happens in the production and retail industry that legislation is passed which gives authorities the power to regulate various aspects of the industry, from production to distribution including exports and imports. Industrialization and Trade. Once the approval was obtained, the Minister complied with the relevant provisions (ss 2 and 3) of the Import and Export Control Act. quick facts; trade agreements; government. 5(1) of the old Rules of the Supreme Court provided that a notice of appeal must be lodged with the registrar of the court appealed from and the registrar of this court. Therefore, I accept it. Thus the High Court was of the view that the impugned decision is irrational and must be set aside because it was taken without properly according the respondents their right to audi in the second round of the consultations. 8 Grey v Pearson (1857) 6 (H of L) 61 106. In the light of the above, we urge you to withdraw Notice No. The application to the Minister was necessitated by the increase in the importation of dairy products in the country and resulted in lower prices for some of those products, which made it difficult for the Namibian produced dairy products to compete with imported products. Charmaine Ndambo Director of Africa Union Holdings City of Johannesburg. The court, The appellants contend that the impugned decision, being executive action, is not susceptible to the ordinary rules of procedural fairness which are cardinal features and requirements of administrative reviews. 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. The appellants approached the High Court to set aside a trade measure restricting the importation of poultry products by the Minister of Trade and Industry (the Minister) of 5 April 2013 to protect the fledgling poultry industry in Namibia. On 16 September 2013, Government published a notice in the Government Gazette titled Prohibition on Importation of Dairy Products into Namibia: Import and Export Control Act, 1994 (the Notice). This is compounded by the letter of the permanent secretary (PS) of the Ministry of Trade and Industry (the Ministry) of 20 September 2013 to the chairperson of the Meat Board of Namibia who referred to the directive of Cabinet as the decision. [52] The applicant very properly concedes that this court has the constitutional authority to examine whether the means adopted by the President are rationally related to the objective sought to be achieved by granting pardons to those convicted prisoners who claim to have committed offences with a political motive. Perhaps the threat is a hint at even more protection to come, but whatever the outcome, it does not bode well for the long suffering Namibian consumer. The impugned decision may be irrational if it was made without accurate and sufficient information for the Minister to establish if indeed it was necessary in the public interest to impose these restrictions. On the 8th of August 2013 you confirmed that the consultation process has not been concluded. 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. The cross-appeal by Matador and Clover is dismissed with costs such costs to include the costs of one instructed legal practitioner and two instructing legal practitioner. Ministry of Industrialization, Trade and Sme Development [8] Aside from the above, the Submissions also contain no indication that, once the recommendations made are imposed, the measures taken will be successful. About Us. Summary of the High Courts findings and reasoning. Petrus Nuuyoma Oil Trader | Fuel Retailing Analyst | Fulbright Fellow: Humphrey . More importantly, the impugned decision involves a determination of the nature of dairy products to be included in the basket of restricted imports. The wide discretion accorded to the Minister in s 2 of the Import and Export Control Act confirms the above interpretation that the Act confers executive powers to formulate or design the content of a foreign trade policy. MINISTRY OF TRADE & INDUSTRY Windhoek Namibia. Canada. Indeed, the context-specific features of the special dispensation and in particular its objectives of national unity and national reconciliation, require, as a matter of rationality, that the victims must be given the opportunity to be heard in order to determine the facts on which pardons are based. (My emphasis). See Geuking v President of the Republic of South Africa15 para 26 where, notwithstanding the fact that the President had exercised public power in terms of a legislation16, his decision was considered executive conduct because of the nature of the decision.17 Also see Association of Regional Magistrates of Southern Africa v President of the Republic of South Africa18 para 40-2, where the Court found the decision to be executive action even though the President had acted in terms of legislation.19 Further see Minister of Defence and Military Veterans v Motau20 para 47 where the court found the Ministers decision to be an executive conduct although it had been taken in terms of legislation.21. The authority conferred must be exercised lawfully, rationally and in a manner consistent with the Constitution. BIPA Business Registration 40 Christina Murray & Richard Stacey in Woolman & Bishop (eds.) I V Maleka, SC (with him S Namandje and T Chibwana), T J Frank, SC (with him N Bassingthwaighte), Instructed by the Ensafrica Namibia (Incorporated as LorentzAngula Inc.). 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. In both letters, the Minister went on to say in his decision he considered the written papers handed over at the public consultation by the representatives of Clover and Matador. The letters were not received by Matadors and Clovers lawyers. Head Office Address: Brendan Simbwaye Sq Goethe St, Windhoek P/Bag: 13340, Windhoek Tel: +264-61-283 7111. The appellants objected to Parmalats standing on the ground that it is not a distributor or importer of dairy products in Namibia. Namibia Ministry of Trade and Industry - www.govpage.co.za The court a quo in footnote 30 of its judgment held that: 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.. Ministry of Industrialisation, Trade and SME Development is charged with the responsibility to develop and manage Namibia's economic regulatory framework, promote economic growth and development through the formulation and implementation of appropriate policies with the view to attract investment, increase trade, develop and expand the country's industrial base. I respectfully disagree with the order he proposes in para 126 (a), (b) and (d) including the order in para 126 (e) (which I would have concurred in but for the conclusion I arrive at it has become unnecessary) and the conclusions and reasoning, particularly on two issues, namely: (a) whether the Minister took the decision or he unlawfully abdicated from the responsibility to take the decision. SearchInAfrica.com - Business Directory and online map for information on business, community, government, entertainment & recreation for Africa. Before the introduction of the 40% import duty long life milk was retailing in Namibia, on average at N$6-00 per litre. Growth at Homeis the theme chosen by the Ministry of Industrialisation, Trade to reinforce the importance of accelerating economic growth, reducing income inequality and increasing employment. First, to inform Cabinet of the serious challenges being faced by the Namibian dairy industry due to imports of dairy products into the country. It further alleged that its importation of fast moving consumer goods includes dairy products from South Africa into Namibia. 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. I will in the meantime ask that the presentation(s) made at the meeting be circulated right away. Ministry of Tourism, Trade and Industry (East Timor) / 8.55500S 125.56722E / -8.55500; 125.56722. The principles regulating locus standi have been dealt with in numerous decisions of our courts and I do not intend to repeat the exercise here except to say that a party contending for standing has to show that it has 'a direct and substantial interest' in the subject-matter and outcome of the application. That is contrary to what the Act requires and is impermissible. The Dairy Products Act does not regulate dairy products which are imported into Namibia for purposes other than trade. The Website www.mti.gov.na you want to visit you want to visit is currently not available on this Server.. iWAY can assist you with any of your internet needs.. [98] It has already been found that the impugned decision is an executive conduct. To establish whether a decision is more of an executive or administrative action, the court in SARFU went on to suggest the following as factors which ought to be taken into consideration: The source of the power, though not necessarily decisive, is a relevant factor. Thus a pecuniary interest, on its own, may not be enough to establish locus standi. This will ensure that the relatively small producers of milk and dairy products will not be at the mercy of market diversion tactics of foreign companies. If the impugned decision is found to be an executive action, it follows that it will be reviewable only against the standards imposed by the principle of legality.10. 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 Ministry of Trade & Industry - Ministry of Trade & Industry Thus in Albutt, the question for determination was whether procedural fairness was a relevant consideration in a review on the ground of rationality, given the circumstances of that particular case.