Setback for Job in red line lawsuit

A High Court decision to allow Affirmative Repositioning (AR) activist Job Amupanda to provide evidence of his financial resources for a protective costs order was set aside by the Supreme Court on Monday.

The application for a protective cost order was brought in the legal action regarding the removal of the veterinary cordon fence (VCF), also known as the red line.

Although High Court judge Shafimana Ueitele pointed out in his judgment in September 2023 that Amupanda's application did not meet the requirements and would normally be dismissed, he exercised his jurisdiction to grant Amupanda leave to supplement his application with additional evidence regarding his finances.

"The order he [Ueitele] made will therefore be set aside as it constitutes an irregularity in the proceedings," reads the Supreme Court judgment.

Public interest case

The Supreme Court found that the application should be dismissed as Amupanda did not meet the requirements.

However, the court, pursuant to an order, granted Amupanda permission to bring another application with the same documents, but with additional statements and information to meet the requirements.

A protective costs order can be granted when a case involves matters of public interest, but a party does not have the necessary funds to pay legal costs.

The order can provide an upfront guarantee to a party that no costs will be awarded against them, regardless of the outcome of the case, or a maximum threshold can be set for cost liability.

Amupanda’s application

Amupanda brought the application in August 2023 and argued before Ueitele that he would not be able to proceed with the trial as the costs would "probably be astronomical."

The agriculture ministry and the Meat Council of Namibia opposed the application.

They argued that Amupanda had not disclosed enough information about his financial position.

Agriculture minister Calle Schlettwein objected to the fact that Amupanda did not provide the court with a complete statement of his monthly income and expenses or an explanation as to why he could not obtain legal aid.

He further argued that Amupanda had not disclosed that he was relying on resources and contributions from the AR in the court case for the removal of the red line.

Irregular

When Ueitele delivered his verdict, he agreed with the minister and the council's allegations about a lack of information about Amupanda's financial position.

"However, the court found that a person involved in a case involving issues of public interest should not be deterred for fear of an adverse costs order."

Based on this, the court granted Amupanda leave to supplement his documents.

In an attempt to overturn this decision, the minister and the Meat Council approached the Supreme Court with the allegations that Ueitele's decision was irregular.

The application was granted on Monday, and the High Court's decision was set aside.

Illegal

In his legal application, Amupanda argues that the use of the red line and associated control measures were not established in accordance with law.

He claims that the fence is unconstitutional and that any seizure of red meat at the VCF is illegal.

Amupanda has applied for a High Court order requesting the removal of the fence within 90 days.

However, government maintains that the fence is still necessary to prevent the spread of animal diseases into the area south of the fence. Further, the red line should remain in place to preserve profitable overseas markets for animal products originating from the area south of the fence until a practical solution can be found without jeopardising the markets for animal products outside Namibia.

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