NPI Granted Limited Discovery in Poultry Trial

“I am satisfied that the interests of justice in the present case justify that NPI obtain specific discovery of all of the information and documents listed in annexure 1, without any confidentiality restriction.”

This was said last Thursday by Judge President and Deputy Chief Justice Petrus Damaseb when he delivered his judgment on an application by Namibia Poultry Industries (NPI) for discovery in the review case the South African Poultry Association (SAPA) and five South African chicken producers brought against the Minister of Trade and Industry, the Government, NPI and the Meat Board of Namibia.

SAPA and Astral Foods Limited, Supreme Poultry, Crown Chickens, Agri Poultry and Rainbow Farms want the High Court to review and set aside the quantitative restriction on poultry imports imposed by Trade and Industry Minister Calle Schlettwein as infant industry protection.

During an earlier urgent application the legal representatives for SAPA applied that NPI not be allowed insight into the documents already discovered to them as they contain confidential commercial information.

Judge Harald Geier issued an order confirming an agreement reached between the parties then.

NPI then launched an application to the Judge President seeking discovery of various documentation pending the main trial or “general discovery”, entitling them to have insight into all of the opposition’s legal documents.

The documents NPI is entitled to in discovery following Judge President Damaseb’s judgment include documents proving that treaties relied upon by SAPA for the Minister’s determination are unlawful as a force in Namibia, and documents and information supporting SAPA’s claim that its members suffered persistent and ongoing financial harm from the imposition of the quantitative quota restriction which must include all of the SAPA members who continue to be a party to the proceedings.

NPI is also allowed to have insight into SAPA’a imports of chicken products from outside SACU.

They are however not entitled to discovery of the Association of Meat Importers and Exporters of Namibia (AMIE) or those relative to the role played by the South African Department of Trade and Industry in respect of SAPA’s endeavours to have the matter resolved bilaterally between the South African and Namibian governments.

SAPA claims the Minister’s determination is contrary to the provisions of the Import and Export Control Act of 1994 and that the Infant Industry Protection Policy “runs foul” of the government’s international treaty obligations.

They also claim unfair treatment inconsistent with Article 18 of the Namibian Constitution since they as interested parties were not afforded the opportunity to be heard before the restrictions were imposed.

According to SAPA the restrictions have already resulted in an immediate decrease of 78.45 percent of exports of poultry products into Namibia with a substantive loss to their members and in some instances producers have lost in excess of 200 000 kgs in weekly exports.

In opposition of SAPA’s review application, the NPI asked the High Court to grant it discovery “to enable NPI to answer the founding papers in the main application and to afford NPI the opportunity to meaningfully consider and answer the allegations made in the main application”.

The Judge President further said it is not a given that the decision should be reviewed given the public interest.

He said the industrial policy of a small country such as Namibia with its very high unemployment is something the court cannot take lightly.

Cost were awarded to NPI on the scale of one instructing and two instructed counsel although they had three instructed counsel which the Judge President deemed overboard. The matter was postponed to November 25 for status hearing.

Source : New Era