Windhoek — Three judges of the Supreme Court yesterday upheld an appeal lodged by the South African Poultry Association (SAPA) and five South African poultry producers against a ruling by Deputy Chief Justice and Judge President Petrus Damaseb that their application to review the quantitative restriction on poultry imports imposed by then Trade and Industry Minister Calle Schlettwein as infant industry protection, was unduly delayed.
SAPA and Astral Foods Limited, Supreme Poultry, Crown Chickens, Agri Poultry and Rainbow Farms applied to the Windhoek High Court to review and set aside the measure that was instituted to protect Namibia's infant poultry industry.
The minister as well as the government and Namibia Poultry Industries (respondents) as the principal beneficiary of the restrictions opposed the application.
During the case management stages, the respondents raised preliminary points (objections) against the application which included attacks on the locus standi (authority) to bring the application and contending that SAPA unduly delayed in bringing the review application. The trial court then decided to hear arguments on the issue of delay without going into the merits of the case and upheld the delay point and dismissed the application.
SAPA and the other poultry producers then appealed the decision at the Supreme Court claiming the High Court misdirected itself on the delay question.
They further asked the Supreme Court to deal with the merits of the case if it were to find in their favour.
However, the appeal judges declined to deal with the merits as it is not the court of first instance and instead decided to refer the case back to the High Court to deal with the merits of the case. Judge Dave Smuts who wrote the judgment in agreement with acting judges of appeal Yvonne Mokgoro and Theo Frank ordered that the trial be remitted to the High Court for further case management for hearing of arguments. While the Supreme Court found that the High Court's finding that SAPA's failure to bring the review application constituted unreasonable delay, public interest is a weighty factor to consider in such instances. Judge Smuts said a further factor to be considered was whether the failure in bringing the review application within a reasonable time was done in good faith. Public interest in matters of this magnitude calls for certainty especially in respect of trade measures. He added that public interest is plainly served by bringing certainty and finality to administrative action which could only be achieved through a review of the measure in the High Court.
"Clearly the issue raised in the review is of considerable importance. It concerns the validity of a trade measure restricting poultry imports in the implementation of an economic policy to protect a fledgling industry," Judge Smuts stated.
He went on to say that the issue also concerns the legality and whether international treaties in conflict with national legislation would prevail and whether and the extent to which the content of those treaties must inform the exercise of statutory powers conferred to a minister under an act. This question as well as other review grounds raised can only be considered through the canvassing of the merits and on the contrary public interest would be served by the ventilation and determination of the facts.
This can only be achieved through the High Court as the court of first instance and it thus follows that condonation for the unreasonable delay should be granted, Judge Smuts said. He awarded costs to the respondents for the High Court trial.
SAPA and the poultry producers was represented by Advocate D Unterhalter SC assisted by Advocates Andrew Corbett SC, M du Plessis and Deon Obbes instructed by Ellis Shilengudwa Inc. and the government respondents by Sisa Namandje assisted by LNK Ihalwa instructed by the Government Attorney, while Namibia Poultry Industries was represented by Advocate Jeremy Gauntlet SC, QC assisted by FB Pelser and RL Maasdorp instructed by Theunissen, Louw and Partners.