Non-profit organisation N/a’ankusê Foundation does not need a permit under the Ordinance or the Regulations Relating to Nature Conservation to transport and keep rare species of birds, the Windhoek High Court ruled.
Judge Bradley Coleman on Thursday granted the order following a suit by N/a’ankusê, in which it sought a review and setting aside of the environment minister’s decision to refuse them a permit to transport rare birds from the Rare and Endangered Species Trust (REST) in the Otjiwarongo district to the N/a’ankusê wildlife sanctuary and veterinary clinic on Farm Frauenstein.
The birds will subsequently be kept at N/a’ankusê lodge.
The birds in question are two Cape vultures, two tawny eagles, a Bateleur eagle, an African hawk eagle, a giant eagle owl, and a spotted eagle owl, which were a donation from REST to N/a’ankusê.
The rare birds were donated to the foundation as a result of REST shutting down its operations in Namibia.
In his ruling, Coleman also declared part of Section 83(1) of the Nature Conservation Ordinance 4 of 1975 as unconstitutional.
The part which is declared unconstitutional by the court reads: “The minister shall not be obliged to furnish any reasons for the refusal by it to grant or issue any such permit, licence, registration, approval, permission or exemption”.
During arguments, the foundation’s lawyer Raymond Heathcote said the application is about their welfare and to avoid animal cruelty that may be committed against the birds – be it physical harm, which befalls the birds, or psychological harm.
He said the minister’s denial to decide on the N/a’ankusê application to transport and keep the birds has placed their welfare at risk.
According to Heathcote, the law does not dictate that a person must obtain a permit if they want to transport animals.
He said N/a’ankusê has ownership of the birds, so they do not need a permit to transport them.
However, the ministry’s lawyer Nixon Marcus said there is no decision to review, as the minister has not made a decision on the applications.
Therefore, the review order sought by N/a’ankusê cannot be granted as there has been no refusal by the minister to decide the applications.
Nixon continued that REST cannot donate the birds, as they do not have the permits to keep them. Furthermore, N/a’ankusê has not presented evidence that it is a licensed dealer, authorised to keep the birds.
– mamakali@nepc.com.na