N/a’ankusê wins partial endangered bird case

The High Court yesterday granted an interim order for the N/a’ankusê Foundation to move rare species of birds from the Rare and Endangered Species Trust to their wildlife sanctuary and veterinary clinic in Windhoek.

Judge Bradley Coleman granted the order while he deliberates on the review application where the foundation wants the court to review and set aside the environment minister’s decision to refuse them the permit to transport the rare birds from REST in the Otjiwarongo district to the N/a’ankusê wildlife sanctuary and veterinary clinic on Farm Frauenstein.

The birds will subsequently be kept at N/a’ankusê lodge.

Two Cape vultures, two tawny eagles, a Bateleur eagle, an African hawk eagle, a giant eagle owl and a spotted eagle owl were a donation from REST to N/a’ankusê.

The donation was a result of REST shutting down its operations in Namibia.

Arguing in the High Court yesterday, the foundation’s lawyer Raymond Heathcote said the application is about the welfare, and avoiding animal cruelty that may be committed towards the birds – be it physical harm, which befalls the birds, or psychological harm.

He said the minister’s denial to decide on the N/a’ankusê application to transport and keep the birds has placed their welfare at risk.

According to Heathcote, the law does not dictate that a person must obtain a permit if they want to transport animals.

However, “section 48 states no person may transport game unless he is the holder of a permit, authorising him to keep the game, and which permit must be on his person at the time of transport,” said Heathcote.

He said N/a’ankusê has ownership of the birds, so they do not need a permit to transport them.

However, the ministry’s lawyer Nixon Marcus said there is no decision to review, as the minister has not made a decision on the applications.

“The appropriate order should be to allow the minister to decide the application to keep the birds and the application for a transport permit for the birds,” said Nixon.

Therefore, the review order sought by N/a’ankusê cannot be granted, as there has been no refusal by the minister to decide the applications.

According to Nixon, REST cannot donate the birds, as they do not have the permits to keep them. Furthermore, N/a’ankusê has not presented evidence that it is a licensed dealer, authorised to keep the birds.

The court will give a ruling on 9 March 2023.

On the constitutionality challenge to declare Section 83(1) of the Nature Conservation Ordinance 4 of 1975 as unconstitutional, the parties have agreed that in as much as it states that the minister is not required to give reasons for a decision, it is unconstitutional.

They have decided for the decision to be made an order of the court.