The central disagreement in Minister of Trade and Industry v Matador Enterprises (Pty) Ltd [2020] NASC 2 concerns how strongly courts should supervise executive decision-making. From a constitutionalism perspective, there are respectable arguments for both approaches, although Mainga JA's judgment is arguably preferable because it places greater emphasis on legality, rationality, transparency and procedural fairness.
Chief Justice Shivute's approach
Shivute CJ characterized the Minister's decision to impose quantitative restrictions on certain imported dairy products primarily as executive action involving economic and trade policy, rather than ordinary administrative action. The majority concluded that the Minister had acted under the correct legislation—the Import and Export Control Act 30 of 1994—and was unwilling to interfere with the decision on the procedural grounds accepted by the High Court.
There is a strong constitutionalism argument supporting this approach. Constitutionalism does not mean that courts should substitute their policy preferences for those of the executive. Namibia's constitutional structure separates governmental powers, and decisions concerning protection of domestic industries and international trade contain significant economic and policy considerations. Judicial restraint therefore protects the legitimate policymaking functions of the executive.
The Chief Justice also declined to determine the constitutional validity of ss 2 and 3 of the Import and Export Control Act where the High Court had not decided that issue. An important reason was that deciding the constitutional challenge for the first time in the Supreme Court would effectively make that court a court of first and final instance, depriving an unsuccessful party of an ordinary appeal on the constitutional question.
That approach itself reflects constitutionalism: courts should resolve constitutional questions through appropriate procedures rather than deciding unnecessary constitutional issues simply because they have been raised.
Mainga JA's approach
Mainga JA placed considerably greater emphasis on procedural fairness and the rule of law. He concluded that the decision was the Minister's decision, rather than Cabinet's, but reasoned that because the Minister was exercising statutory authority in a manner affecting Matador and Clover's interests, principles of natural justice applied.
This was particularly important because consultations had initially taken place and further consultations had effectively been promised. Yet the restrictions were ultimately imposed without Matador and Clover receiving an adequate further opportunity to make representations. Mainga JA concluded that the Minister lacked necessary information, failed adequately to hear the affected parties, and followed a process lacking transparency. Consequently, the decision was irrational and had properly been set aside by the High Court.
The High Court had similarly emphasized an important rule-of-law principle: where legislation confers a particular power on the Minister, the Minister must actually exercise that power, applying his or her own mind to the statutory requirements. Consultation with Cabinet is permissible, but the statutory decision cannot simply be made by another body.
Which approach is preferable?
From a constitutionalism perspective, Mainga JA's approach is more persuasive.
Constitutionalism requires more than the existence of a written constitution. It requires government power to be limited by law and exercised consistently with legality, accountability, rationality and fundamental rights. Executive discretion therefore cannot become an area in which government officials are effectively immune from meaningful judicial scrutiny.
The Chief Justice's concern about excessive judicial interference in executive policymaking is legitimate. Courts generally lack the institutional expertise to decide whether protecting domestic dairy producers is economically desirable. But the court did not need to decide whether import restrictions were good economic policy. The constitutional question was whether public power had been exercised lawfully, rationally and fairly.
That distinction strengthens Mainga JA's position. His reasoning does not require the judiciary to decide Namibia's dairy policy. Instead, it requires the official entrusted with the statutory power to obtain relevant information, genuinely exercise that power and provide affected parties with appropriate procedural fairness.
This is particularly significant because the High Court found substantial deficiencies in the decision-making process, including inadequate opportunity for affected parties to be heard. A constitutional democracy would be weakened if labeling a decision “executive” or “policy-oriented” substantially insulated such deficiencies from judicial review.
Therefore, Shivute CJ's judgment has the advantage of respecting separation of powers and institutional competence, whereas Mainga JA's judgment better advances accountability, transparency, rationality and natural justice. On balance, Mainga JA's approach is preferable from the perspective of constitutionalism because it allows government to make policy while insisting that governmental power remains constrained by law.
The key distinction can be expressed simply:
Shivute CJ: Courts should be cautious about interfering with legitimate executive policymaking.
Mainga JA: Even legitimate executive policymaking must be exercised rationally, transparently and fairly.
The second proposition provides the stronger conception of constitutionalism because executive discretion and the rule of law are compatible only when discretion itself remains subject to legal limits and meaningful judicial supervision.
