The appellant in this case was Waterberg Big Game Hunting Lodge Otjahewita (Pty) Ltd, a company conducting business as a hunting and safari lodge. Waterberg applied to the Ministry of Environment and Tourism for a permit to import Mountain Reedbuck and other game to Namibia.
The Ministry replied to the application stating that “certain species such as Cape bushbuck and Mountain reedbuck, although they have been imported in small numbers, should no longer be allowed to be imported as they never occurred naturally in Namibia and some posed real biodiversity conservation risks because of potential inbreeding with Namibian subspecies.” It was therefore decided to decline the application to import Mountain reedbuck. A further letter indicated that the applications for import of Mountain Reedbuck would be declined until the Ministry had received a response from Cabinet.
It was unclear whether the Ministry or the Director of Parks and Wildlife Management within the Ministry, or the Director and the Ministry collectively, took the decision to decline the application. It was clear however was that the Minister did not take the decision. The Minister was not in any way a party to the decision-making process. The Director did not allege that he was authorized by the Minister to oppose the application on behalf of the Minister. The Supreme Court emphasized that according to the relevant provisions the Minister was the functionary to take decisions for the granting or refusal of any permit for the importation of game from South Africa. Therfore, the exercise of the power by the Director was ultra vires their powers and null and void.
The question then arose whether the original application by Waterberg Lodge should be referred to the Minister for consideration and decision or whether the court should direct the Minister to grant the two applications by the applicant. There were several separate opinions by judges arguing, among others, that the effect of giving directions to the Minister was that the Minister was penalised by not being given an opportunity to properly consider the applications and such penalization was not justified. Another judge was of the view that the Minister had failed completely to decide on applications permits for a long time. The Minister thus had acted in conflict with the Constitution, by not at all performing the functions and duties imposed by law for the benefit inter alia of persons carrying on the business of keeping a lodge on a farm stocked with game. By giving the said directions, the court would rectify a grave neglect by the Minister.
On the other hand, the granting of the said applications by the Minister in execution of the order of the Court would not prejudice the State’s interest and duty to protect the bio-diversity of Namibian wild life but would enable the Minister and the Ministry to decide on a policy which would sufficiently protect such bio-diversity as well as the public interest and the interest of the wild game farmers, traders and businessmen and women. The law imposed reasonable restrictions, such as veterinary control for the importation of any game and in issuing the permit, additional conditions could be imposed other than a total ban to safeguard biodiversity and to prevent the spread of sickness by imported game. It was accepted that the biodiversity of the Namibian wildlife had to be protected but whether the sudden adoption of a policy and arbitrarily choosing the applicant as the first victim was justified, was a completely different issue.
In conclusion, the Minister was directed to hear and determine Waterberg’s applications afresh.