Wildlife (fauna)

The matter dealt with a delay by the respondents to issue a permit for the import into Namibia of elephants published in Government Gazette No. 4236, Notice 60, dated 1 April 2009. 

The court considered whether the delay was ultra vires the provisions of the Nature Conservation Ordinance No. 4 of 1975. The respondents conceded that the moratorium was ultra vires the ordinance and accordingly, the court agreed with their concession.
The court considered further, whether it should make an order directing the second respondent to issue the required permit to the applicant. The principle to be applied in the circumstances was that the court had discretion once it set aside an administrative decision to take the decision itself and this discretion was to be exercised judicially. The court observed that the second respondent had not yet decided whether to grant or deny the application and that the second respondent was better positioned to decide because it was privy to factual material which the court was not. Accordingly, the court held that it could not order the second respondent to issue the permit to the applicant.
The court considered whether the applicant and second respondent entered into a valid agreement. The test to be applied was to inspect the intention of the parties. The court concluded that whilst the applicant and second respondent had discussed and agreed upon some conditions, those were not intended to be the only conditions. Accordingly, the court held that no valid agreement was concluded.

This was an appeal to the Supreme Court on a judgment of the High Court which had dismissed an application for the review and setting aside of a decision by the respondent to refuse the importation of Mountain Reedbuck from South Africa into Namibia.

The appellant cited the respondent, pursuant to his duties, powers and functions as set out in the Nature Conservation Ordinance No. 4 of 1975. The appellant placed particular emphasis on his duty to consider and decide on the importation of live game from South Africa in accordance with Section 49(1) of the ordinance as amended by Section 12 of Act 5 of 1996. The evidence revealed that the decision to refuse the import of Mountain Reedbuck was made by a subordinate official who was not authorised to do so and based on a new policy which had not been communicated to the appellant.

The court found out that this issue hinged on the confusion surrounding the parties involved, the reasons for the refusal and the failure of the respondent to abide by Rule 53 of the Rules of the High Court and Article 18 of the Namibian Constitution linked to administrative justice and the doctrine of “reasonable expectation”. The court held that the subordinate official acting on behalf of the respondent did not have the authority to make the decision which was set aside. Accordingly, the appeal succeeded, and the court directed the respondent to issue the permits applied for and pay the appellant’s costs.