Minister of Trade and Industry and Others v Matador Enterprises (Pty) Ltd and Others (SA 44 of 2014) [2020] NASC 2 (19 March 2020)

Key Facts

Issues

• Whether Parmalat SA (Pty) Ltd had a direct and substantial interest in the matter to establish locus standi under the Namibian Constitution, considering its role as an exporter of dairy products to Namibia through agents like Matador.
• Whether the Minister applied the correct legislation (Import and Export Control Act) or should have used the Dairy Products Act to justify the imposition of quantitative restrictions on dairy imports.
• Whether the Minister unlawfully abdicated his responsibility to make the decision, as the impugned decision was allegedly made by the Cabinet instead of the Minister as required by the Import and Export Control Act.
• Whether the appeal was properly lodged with the Supreme Court in accordance with Rule 5(1) of the old Rules of the Supreme Court, particularly regarding compliance with the requirement to lodge the notice with both the registrar of the court appealed from and the registrar of this court.
• Whether the impugned decision and sections 2 and 3 of the Import and Export Control Act are unconstitutional, particularly in relation to their impact on trade rights, procedural fairness, and public interest considerations.
• Whether the court a quo erred in declining to pronounce on the constitutional validity of sections 2 and 3 of the Import and Export Control Act, and whether the impugned decision itself violates the Namibian Constitution.
• Whether the respondents (Matador, Parmalat, Clover) had a right to procedural fairness under Art 18 of the Namibian Constitution, and whether the Minister complied with this duty during the decision-making process.
• Whether the decision to impose quantitative restrictions on dairy imports constituted an administrative or executive action, determining the applicable standard of review (Art 18 of the Constitution vs. principle of legality).
• Whether the Minister applied his mind to the decision-making process by considering relevant factors (e.g., market conditions, consumer impact) and whether the decision was rational and lawful.

Holdings

• The decision was irrational due to procedural unfairness.
• The Minister applied the correct legislation (Import and Export Control Act).
• The impugned decision was executive action, not administrative.
• The Minister, not the Cabinet, made the decision.
• The cross-appeal on constitutional validity is dismissed.
• Parmalat lacks locus standi due to insufficient direct interest.
• The appeal was properly lodged with the court despite missing some formalities.

Remedies

• 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 practitioners.
• The order of the High Court is set aside and substituted for the following order: 'The applications of both Matador and Clover are dismissed with costs, such costs to include the costs of one instructing legal practitioner and two instructed legal practitioners (where employed).'
• Paragraph (c) to the Notice No 245 concerning the Prohibition of Importation of Dairy Products into Namibia issued on 28 August 2013 and published in Government Gazette No 5285 of 16 September 2013 is expunged from the said Notice.
• The appeal by the appellants was upheld with costs, such costs to include the costs of one instructing legal practitioner and two instructed legal practitioners where employed.

Legal Principles

• The Supreme Court upheld the appeal by affirming that the Minister correctly invoked the Import and Export Control Act rather than the Dairy Products Act, emphasizing the principle of legality and adherence to statutory authority.
• The judgment highlighted the violation of the audi alteram partem principle of natural justice, as the Minister did not disclose the pre-existing Cabinet decision to the respondents during consultations, rendering the process irrational and invalid.

Precedent Name

• Geuking v President of the Republic of South Africa
• Trustco Insurance t/a Legal Shield Namibia & another v Deed Registries Regulation Board & others
• Fitzgerald v Champneys
• President of the Republic of South Africa v South African Rugby Football Union
• Masetlha v President of the Republic of South Africa
• Association of Regional Magistrates of Southern Africa v President of the Republic of South Africa
• Minister of Defence and Military Veterans v Motau
• Waterberg Big Game Hunting Lodge Otjihewita (Pty) Ltd v Minister of Environment and Tourism
• Minister of Justice and Constitutional Development & others v Southern Africa Litigation Centre & others
• Khumalo v Director-General of Cooperation and Development
• Corporation of Blackpool v Starr Estate Co Ltd
• R v University of Cambridge
• Prosecutor-General v Atlantic Ocean Management Proprietary & another
• Kerry McNamara Architects Inc & others v Minister of Works, Transport and Communication & others
• Kauesa v Minister of Home Affairs & others
• Albutt v Centre for the Study of Violence and Reconciliation & others

Cited Statute

• Dairy Products Act, 1986
• Import and Export Control Act, 1994

Judge Name

• MAINGA JA
• SHIVUTE CJ
• HOFFJA

Passage Text

• The failure to disclose such important information gravely violated the audi alteram partem rule... the flawed nature of the meeting of 18 July 2013 could not have had a bearing on the decision.
• 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.
• I am persuaded that although the impugned decision has characteristics of both administrative and executive conduct, this decision leans more towards executive action, because of the subject matter dealt with by the impugned decision.