South African poultry producers have been afforded a second opportunity to fight Namibia’s import restrictions on SA chicken. The case was heard in Namibia’s High Court.
The restrictions in question have been valid since April 2013 and were intended to protect Namibia’s young poultry industry. In April 2014 the South African Poultry Association (SAPA) and 5 poultry producers applied to the Namibian High Court to have the restrictions set aside as they are contradictory to international trade agreements.
The Namibian government, poultry industry and meat board opposed the application, but the court did not hear their arguments as they were submitted late.
The SA parties appealed and the High Court decided on 17 January to condone the late submission of the application and to send the case to be heard in the court of first instance. The judges hearing the appeal said in their ruling that although the South Africans gave no explanation as to why they didn’t take steps during, especially, the first 6 months after the announcement of the restrictions, it is now in the public interest that certain issues be heard.
This includes the extent to which, if at all, international agreements can be enforced by local courts. Prof. Gerhard Erasmus, associate at the Trade Law Centre (tralac) in Stellenbosch, says there are interesting and important legal aspects to the case, of which some have never been ruled on in Namibian courts.
“Usually, international trade disputes are adjudicated by international tribunals because they deal with disputes between countries. However, in SA it isn’t that simple. African governments don’t litigate when mutual trade agreements are violated. They claim that disputes are settled through diplomatic avenues. There is little proof of this, though,” he says.
In this way Zimbabwe has been violating the Southern African Development Community’s (SADC) trade protocol for years. African countries also don’t create the necessary international courts. “When the SADC Tribunal ruled against Zimbabwe in a land claim in 2010, the tribunal was summarily abolished. The new SADC Tribunal isn’t active yet, but won’t be able to hear private claims.”
The tribunal that was supposed to be established in terms of the SADC’s convention of 2002, was never created, says Erasmus. In the current court case about Namibian chicken import restrictions, one must keep in mind that private parties (SAPA and SA poultry producers) are the claimants.
“They claim that (the Namibian) measures violate Namibia’s national legal principles, as well as certain international trade agreements from the Southern African Customs Union and World Trade Organisation. The latter arguments refer to article 144 of the Namibian Constitution, which was to make international legal principles and agreements part of the national legal order.
“The defendants obviously contest these claims and argue that international trade agreements are not valid for such claims. The eventual verdict should provide greater clarity on the scope of international industrialisation policies and their influence on trade agreements. The verdict doesn’t necessarily have to rule on the interesting question of article 144 of the Namibian Constitution,” says Erasmus.