Judge Shafimana Ueitele last week dismissed an application by South Africa’s Poultry Association (SAPA) to set aside a decision by Namibia’s Minister of Trade and Industry that granted infant industry protection to the local broiler industry.
SAPA, along with five South African chicken producers (Astral Foods Limited, Supreme Poultry, Crown Chickens, Agri Poultry and Rainbow Farms), had wanted the High Court to review and set aside the quantitative restriction on poultry imports imposed by then Trade and Industry Minister Calle Schlettwein as infant industry protection.
However, the judge last week granted the respondents – the Minister of Trade and Industry, the government, Namib Poultry Industries and the Meat Board of Namibia – an objection they lodged due to the long time it took to file the application.
“I am satisfied that the point in limine (objection) raised by the respondent’s counsel, namely that the application for review was not brought within a reasonable time should succeed with costs,” Judge Uitele said.
According to him, the applicants were already on April 3, 2013 aware of the alleged unlawfulness of the notice for quantitative restriction on poultry imports and did not act on it.
While the applicants say they tried through diplomatic means to engage the ministry on the restrictions, but failed to make inroads and subsequently requested the South African Department of Trade and Industry to intervene in the matter, the judge remarked that he does not accept their reasoning.
Their argument that due to their continued efforts to involve the South African government, the delay in instituting proceedings took four months – which in their view is not unreasonable – holds no water, the judge said.
Judge Uitele was adamant the applicants should have known from the moment the notice was published that they are at risk. He said the applicants’ inaction between the period April 2013 to November 2013 cannot be wished away, as there is no explanation forthcoming.
The judge stated that it is the right of any respondent to receive notice of any legal action against in order it to arrange its affairs so as to suffer the least detriment.
“If a respondent in review proceedings is not warned that a decision it has taken is to be impugned that respondent would be entitled to assume after a reasonable period of time (in my view six months is – depending on the circumstances of the case – a reasonable period) that its action or decision was accepted by those affected by it,” Ueitele emphasised.
He further noted that the applicants did not have to undertake massive research or lengthy and detailed consultations with potential deponents and the relevant documentation could be obtained easily.
According to the judge, the interest of the public is at stake if an applicant is allowed to dilly dally in challenging an administrative decision upon which both government and the citizenry may have acted.
“If a litigant delays unreasonably in challenging administrative action, that delay will often cause prejudice to the administrative official or agency concerned, and also to other members of the public,” he explained.