Court lifts dairy import restrictions #namibia

THE High Court judgement that set aside restrictions on the
importation of milk products into Namibia three months ago
was ordered to come into immediate effect on Friday.
In a judgement delivered in the Windhoek High Court, Judge
Dave Smuts ordered that the judgement in which he set
aside the Government Notice that on 16 September last year
announced dairy import restrictions should be put into
effect immediately. That is while an appeal to the Supreme
Court against his initial judgement, delivered on 16 May, is
pending.
An appeal filed by the Minister of Trade and Industry and the
Attorney General against the judgement of 16 May had the
effect of suspending the execution of that judgement - until
it was ordered to be put into operation on Friday.
Judge Smuts' latest judgement in the legal battle over
Namibia's dairy import restrictions was given after the
companies Clover Dairy Namibia, which imports milk
products into Namibia, and Parmalat SA, which exports
dairy products from South Africa to Namibia, applied to
have the 16 May judgement executed. In the Government
Notice that was published on 16 September last year,
Minister of Trade and Industry Calle Schlettwein prohibited
the importation of dairy products into Namibia, except when
an import permit had been issued. He also prescribed 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. The
import quotas could be increased if there was a shortfall of
milk products in the local market, it was also stated in the
notice.
The import restrictions were intended to provide protection
to Namibia's dairy industry, which has found itself
struggling to compete against especially South African
dairy products that end up on Namibian shelves at lower
prices than similar Namibian products.
After Clover Dairy Namibia and another company importing
dairy products into Namibia, Matador Enterprises,
challenged the import restrictions in the High Court, Judge
Smuts found that the process of introducing the restrictions
"viewed as a whole was hopelessly and fundamentally
flawed".
He found that parties affected by the dairy import
restrictions, such as companies importing dairy products
into Namibia and foreign dairy producers, were not given a
proper chance to have their views heard before a decision
was made to introduce the import restrictions. He further
found that the decision to introduce the import restrictions
was taken by the Cabinet when in terms of the law it should
have been taken by the Minister of Trade and Industry.
Another shortcoming was that the restrictions were set in
terms of the Import and Export Control Act of 1994, while it
should have been done in terms of the Control of
Importation and Exportation of Dairy Products and Dairy
Products Substitutes Act of 1986, Judge Smuts ruled.
In the application to have the 16 May judgement executed
Clover Dairy Namibia claimed that its business dropped by
70% after the restrictions came into effect and that it has
started to suffer a monthly loss of about N$500 000 because
of the restrictions.
Schlettwein informed the court that the government would
be frustrated in implementing an important economic policy
and that Namibian dairy producers and the public interest
would be undermined if the import restrictions did not
remain in place pending the hearing and decision of the
appeal to the Supreme Court.
Judge Smuts agreed with an argument that the prejudice to
the minister was far less tangible than that faced by Clover
Dairy Namibia and the Namibian dairy industry. No
evidence was placed before him to show what impact the
removal of the import restrictions would have on the local
dairy industry, though, he said.
He reasoned that the facts before him showed that Clover
Dairy Namibia would be inconvenienced and harmed more
than the minister and Attorney General if the import
restrictions remained in place while the appeal to the
Supreme Court is pending.
Senior counsel Theo Frank, assisted by Natasha
Bassingthwaighte, represented Clover Dairy Namibia on
instructions from LorentzAngula Inc. Vincent Maleka, SC,
and Sisa Namandje represented the minister and Attorney
General on instructions from the Government Attorney.