WINDHOEK – South Africa’s multi-national foods and beverage group, Clover Industries Limited, on Friday succeeded in its court battle against the Namibian government’s restriction on dairy products, with the High Court ordering the immediate setting aside of Government Notice 245 of 2013 that restricted importation of dairy products into Namibia.
Clover Industries Limited, which imports its products into Namibia through its wholly-owned Clover Dairy Namibia, had in May convinced the High Court to declare the government restriction of dairy products invalid. However, that High Court ruling, handed down on 16 May, was not executed with the government appealling to the Supreme Court.
This prompted Clover to find another legal alternative – asking the court to set aside the restriction on imports as ordered in 16 May, pending the outcome of the appeal the Minister of Trade and Industry and the Attorney-General lodged in the Supreme Court against the May judgment.
The JSE listed Clover, which recorded a 10.4 percent revenue increase to N$4.3 billion as of December 2013, told the High Court of its difficulties in obtaining permits for imports as determined in the notice.
Clover claims to have suffered considerable losses amounting to N$500 000 per month because of such restrictions, with a drop of 70 percent in business.
They stated that if they are not granted the relief sought, they might be forced to cease their operations altogether.
Government contends those arguments, saying Clover did not prove that its losses occurred because of the notice of restrictions.
On 16 May, Judge Smuts ruled that the decision to restrict imports was made by Cabinet which is not empowered to do so, instead of it being a Minister, who has the power under Act 30 of 1994 which deals with import restrictions.
Judge Smuts further said then that the whole process was flawed and that interested parties were not accorded their right to be heard.
On Friday last week, Judge Smuts found that the balance of hardship of convenience favoured Clover and ordered that the May judgement be executed pending the outcome of the appeal in the Supreme Court against the May judgment.
Judge Smuts said that Clover met all the requisites for relief of this nature being the potentiality of irreparable harm or prejudice being sustained by an appellant on appeal if leave to execute is granted, the potentiality of irreparable harm or prejudice being sustained by an respondent on appeal if leave to execute is refused, the prospects of success on appeal and where there is the potential of irreparable harm or prejudice to both, the balance of hardship or convenience.
Smuts said he looked at the potential harm to both Clover and the Minister and Attorney-General respectively and the question as to where the balance lies.
On the government’ assertion that continued importation of dairy products from South Africa will have a detrimental effect on local dairy producers and that public interest would be undermined, Judge Smuts said that the Dairy Producers Associaton of Namibia and Namibia Dairies – the direct beneficiaries of the restriction – did not oppose the application and neither did they appeal the May judgment. He said that he agreed with Clover’s argument that the Minister’s prejudice is more imagined than real and amounts to a loss of face.