INTRODUCTION:

This article aims at summarizing the implications of the recent Namibian Supreme Court judgment of Minister of Trade and Industry v Matador Enterprises (Pty) Ltd (SA 44-2014) [2020] NASC (19 March 2020)with regard to the importation of dairy products into Namibia.

BACKGROUND:

Following the termination of the Infant Industry Protection (IIP) policy in 2007, there was an increase in the importation of dairy products, a development which had an impact of reducing the prices of certain dairy products on the Namibian Market. The local dairy producers could not compete with the lower prices of mainly South African imported dairy products.The Dairy Producers Association(DPA, representing the interests of producers of dairy products in Namibia made an application to the Minister of Trade and Industry for the Minister to institute interim measures controlling the importation of dairy products into Namibia. After initial consultations with interested parties and the promise of further consultations, which never took place, Government Notice 245 in Government Gazette 5285 of 16 September 2013 was published informing the public that a decision had been made by the Minister prohibiting the importation into Namibia of specified dairy products, namely; Fresh/Extended Shelf Life (ESL)/Ultra High Temperature (UHT) milk, butter milk, curdled milk, yogurt and other fermented milk,without an import license. Aggrieved by the restrictive measures implemented, companies such as Matador, Clover and Parmalat, alleging that their businesses had been adversely affected by the measures, brought review applications in the High Court seeking the decision of the Minister to be reviewed and set aside. They also sought an order declaring subsections2 and 3 of the Import and Export Control Act 30 of 1994, in terms of which the decision was allegedly taken, unconstitutional.

The High Court found the decision to impose the quantitative restrictions of the importation of certain dairy products to be invalid and set thatdecision aside. This order was informed by the conclusion that the Minister applied the wrong Act (the Import and Export Control Act, instead of the Dairy Products Act30 of 1961). The High Courtfurther reasoned that even if the Minister acted correctly by applying the Import and Export Control Act, the decision would still be unlawful, because it was taken by the Cabinet and not by the Minister as required by the Import and Export Control Act. The Minister of Trade and Industry appealed to the Supreme Court against the High Court Decision.

SUPREME COURT’S FINDINGS:

The Supreme Court of Namibia held that the Minister had applied the correct legislation, which was the Import and Export, and that the decision was taken by the Minister, not by Cabinet as found in the High Court. Despite this, the Supreme Court held that the restrictions imposed by the Minister were not in the best interest of the Namibian consumer and our trade relationships with the international community. Because the Minister failed to give proper audience to Matador and Clover before making his decision, the decision lacked transparency and adversely impacted upon the right to be heard. The whole process leading up to the publication of the Notice was flawed and,therefore,the decision of the Minister was irrational and Government Notice 245 of Government Gazette 5285 of 16 September 2013 was correctly set aside by the High Court.

IMPACT ON THE DAIRY:

Since the Minister’s Notice imposing quantitative restrictions on the importation of dairy products into Namibia has been set aside, it is now business as usual for international dairy companies like Clover and Parmalat. Maintaining competitive prices and product variety for the Namibian consumer, perhaps at the expense of local dairy producers. The prohibition of importation of dairy products into Namibia without an import permit had been set aside and there is no longer a limit of 500 000 litres per month for the importation of milk and cream into Namibia, and a limit of 200 000 litres per month for the importation of cultured milk products. As the former American politician Barney Frank once famously said:

“Capitalism works better from every perspective when the economic decision makers are forced to share power with those who will be affected by those decisions.”

Article by: Mr Katuna Kamuhanga