Court name
High Court Main Division
Case number
HC-MD-CIV-MOT-REV 335 of 2016
Case name
Confederation of Namibian Fishing Associations & Others v Environmental Commissioner Teofilus Nghitila & Others
Media neutral citation
[2021] NAHCMD 308
Case summary:

Environmental law — Application to have a marine phosphate mining licence declared as having lapsed — Locus standi of applicants – All members of the fishing industry — Applicants feeling aggrieved that their fishing rights and interests in the fishing industry are threatened by the mining licence - the case they brought entails environmental issues – As the Namibian Constitution envisages a generous regime of access to courts’ and. ‘ … mandates a broad approach to standing for the purpose of the enforcement of … rights …’ and where‘ … The rules of standing should not ordinarily operate to prevent citizens from obtaining legal clarity as to their legal entitlements – Court finding that the applicable constitutional provisions, as interpreted by the Supreme Court, envisage a generous regime of access to courts which have expanded the common law principles in this regard - Court  finding that the applicants’ interests are/will be sufficiently directly and prejudicially affected by the granting of ML 170, the ECC that was obtained in this regard and the consequential contemplated marine mining activities that were to follow which afford them the necessary locus standi and thus the ‘title to prosecute their claims’ in this instance and where the relief sought does not only entail immediate declaratory relief sought with its consequences, but which relief, as a consequence, was also of wider impact, as far as the relevant environmental considerations and impacts are concerned, and, where the applicants where also seeking to protect ‘the environmental fabric’ of the traditional fishing grounds in which they operate-

 

Practice — Parties — Locus standi — First, second and third applicants voluntary associations - An association can sue or be sued as a universitas in terms of the common law if it has the capacity to acquire rights, has the power to own property and has perpetual existence. In order to establish whether or not an association has the power to sue regard is to be had to its constitution in terms of which such power may be expressly conferred or from which such power may be implied. In this regard consideration is to be given to the activities, aims and objectives of an association. Even if an Association’s Constitution contains no indication of the right to sue, a Court may, therefore, having regard to its activities, aims and objectives infer the power to sue as inherent in the express powers given to the office bearers. A written Constitution is therefore desirable but not essential to establish whether an Association complies with the requirements – the court thus in applying these principles found that the first, second and third applicants were legal entities that could sue and be sued – and that they could thus have instituted these proceedings in their own right -

 

Practice — Parties — Authority to institute proceedings — Power of attorney authorising Chairperson of the first applicant to institute application and to depose to papers in support — challenge held to be weak – instead of adducing any evidence itself, on the basis of which it mounted the respective challenges, NMP proceeded to create ‘artificial’ challenges, simply with reference to the prescribed constitutional provisions pertaining to the relevant decision-making-processes of the respective first three applicants, and by simply questioning whether or not such provisions had indeed been followed and then proceeding, by simply denying the authority of those applicants, on the basis of its own lack of knowledge - It was thus concluded that NMP’s ‘trigger-challenge’ was not a strong one - Once challenged the applicants responded by providing the relevant resolutions in reply which bore out that all the applicants had authorised the bringing of this application and that they also authorised the chairperson of the first applicant to do so on behalf of all the applicants, authorising him also to sign all the necessary papers, including affidavits, and to take all steps necessary in this case. In any event and in so far as any such actions had not been authorised they were also ratified - Ultimately it appeared that what should have been prevented in motion proceedings, namely the so-called ‘hot-bed’ for spurious challenges, was precisely, what occurred in this application. The challenges were thus not upheld.

 

Practice — Applications and motions — Declaratory order — Court holding that the principles of delay also have a bearing on declarators – Court holding further that. where an application for declaratory relief was unduly delayed, the question of delay would arise as declaratory relief is discretionary. Unreasonable delay thus was a factor to be considered in this context. Court proceeding to consider and apply the principles pertaining to delay also in this matter.

 

Practice — Applications and motions — Declaratory order — Delay in instituting proceedings for declaratory relief — Whether delay unreasonable – Court finding proceedings not unreasonably delayed – In any event the Court would have condoned such delay mainly in the exercise of its discretion on the basis of the considerable public interest in the matter and because of the importance of the issues raised in this case and – where the chronology of events leading up to the application would have justified the delay to some extent and - on the basis of which - it probably could not have been said that the delay – although lengthy – should, in the circumstances of the chronology and the activities reflected there, be regarded as egregious. Although the question of the substantial prejudice to NMP would have played an important part in the exercise of the discretion that would then have had to be exercised, the court would ultimately have been swayed by the argument to the effect that the issue of delay should - in this case - also be viewed against the relevant environmental and constitutional concerns - where the court - in its discretion – and in the consideration of what would also be in the interests of justice – and with reference to what was at play, namely important environmental issues, which should enjoy constitutional protection - would invoke a more generous approach, as the matter : ‘ … shouts out for a decision on the merits, as opposed to form or procedure - which is really what the defence of delay is all about’ and where ‘ … it would be a sad day for justice if, 100 years hence, the fish is all depleted and that the next generation must read in the law reports, that a decision was never made on the merits, but avoided for delay’ – NMP’s challenge on the basis of ‘undue delay’ was thus not upheld.

 

Applicants claimed that NMP had not complied with the applicable mineral licence conditions in terms of which it had to submit an Environmental Impact Assessment and an Environmental Management Plan Report within 6 months from date of issue of its mining licence when it submitted a ‘draft report’ in this regard on the last day of the prescribed 6 month period and a ‘final one’ outside the time window created by the applicable condition. Court finding on the facts that what was submitted was in actual fact a ‘draft report’ and that the relevant condition did not contemplate the filing of a ‘draft report’ and that NMP was thus in breach of the relevant mining licence condition – the question thus arose what the implications of this would be with the coming into force of the Environmental Management Act and where Section 57 permits a person who was undertaking a ‘listed activity’ at the commencement of the Act to continue such ‘listed activity’ for a period of not exceeding 1 year – a person wishing to continue with a ‘listed activity’ after the expiry of the 1 year period in terms of an ‘authorisation’ must apply for an Environmental Clearance Certificate before its expiry – a person who has lodged such application may continue the ‘listed activity’ until such time that the application has been dealt with.

 

The court firstly found that NMP was undertaking a ‘listed activity’ – as defined - at the date of commencement of the Environmental Management Act – section 57 was thus applicable-

 

Court also proceeded to interpret section 57 of the EM Act and held that the underlying ‘authorisation’ on the strength of which NMP operated at the time, was the ‘authorisation’ conferred by the granting of the mining licence – which was the ‘underlying authorisation’ in terms of which certain activities, (which were found to be ‘listed activities’), where undertaken at the time of the commencement of the EM Act, but that this ‘underlying’ authorisation was not impacted upon by the provisions of section 57 - but only the ‘authorisation’ to continue to undertake the ‘listed activity’ as defined.

 

The court held further that such interpretation was also founded on the undeniable recognition of the express rights conferred on mining licence holders such as NMP by the Minerals Act, the express procedures set out there for the cancellation of such ‘authority’/licences in which regard also the applicable Constitutional considerations such as property rights needed to be taken into account, all of which militate towards an interpretation that what may be legitimately impacted upon by the provisions of section 57 was the right, or ‘authorisation’ to continue with a ‘listed activity’ without the necessary ECC, which in turn would give recognition to the important environmental policy considerations as listed in Article 95 of the Constitution, as expressed through the EM Act and its provisions.

 

It was held further that it was beyond doubt that no ‘listed activities’ may be undertaken without an Environmental Clearance Certificate in circumstances where – importantly - the legislature has made it clear that this prohibition is to also apply – ‘despite any other law to the contrary’. The criminilisation of the undertaking of a listed activity, unless the person is a holder of an ECC, undersores the seriousness of the legislature to give expression to the here relevant principles of State policy.

 

The court thus concluded that the prohibition to carry out a ‘listed activity’ ‘without an Environmental Clearance Certificate’ was absolute.

 

As NMP, at the relevant time, undertook a ‘listed activity’ and as NMP did not apply validly within the prescribed period of time for an EIA/EMPR and as NMP was in this regard in breach of the applicable terms and conditions of ML170 and in circumstances where NMP had thus merely purportedly applied for an ECC - which application was later granted but then was set aside - it was found that - ultimately NMP was thus without an Environmental Clearance Certificate. The provisions of the EM Act are clear and to the effect that a ‘listed activity’ may – under threat of criminal sanction - not be undertaken without an ECC. Accordingly it was found that NMP, currently, was not entitled to ‘undertake any listed activity’. The sought declaratory relief was thus granted accordingly in the exercise of the Courts discretion.

 

Here the court took into account that the applicants were considered as sufficiently interested parties to afford them locus standi and that they had also established ‘a sufficiency of interest’ in regard to the subject matter of the litigation. All parties would also be directly affected by the decision. The outcome of the matter could thus also not be considered abstract, hypothetical or academic. A ‘tangible and justifiable advantage’ for the fishing industry and the environment would flow from the granting of the sought declaratory relief and where there would also be a measure of ‘utility’ in the orders that will flow from these proceedings.

 

Finally the court excercised its discretion to grant declaratory relief also on the ground that this would be in the interests of justice – which interest was underscored by the immense public interest in the matter and the environmental issues at play

Headnote and holding:

The remaining facts appear from the judgment.

Judge
Geier J

                                                REPUBLIC OF NAMIBIA                         REPORTABLE  

 

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

 

Case No: HC-MD-CIV-MOT-REV-2016/00335

 

In the matter between:

 

CONFEDERATION OF NAMIBIAN FISHING ASSOCIATIONS        1ST APPLICANT

NAMIBIAN HAKE ASSOCIATION                                                          2ND APPLICANT

MIDWATER TRAWLING ASSOCIATION                                             3RD APPLICANT

OMUALU FISHING (PTY) LTD                                                               4TH APPLICANT

 

and

 

ENVIRONMENTAL COMMISSIONER

TEOFILUS NGHITILA                                                                         1ST RESPONDENT

MINISTER OF ENVIRONMENT ANDTOURISM

SHIFETA                                                                                                2ND RESPONDENT

MINISTER OF FISHERIES AND MARINE RESOURCES

ESAU                                                                                                      3RD RESPONDENT

MINISTER OF MINES AND ENERGY KANJOZE                          4TH RESPONDENT      

ATTORNEY-GENERAL OF THE REPUBLIC

OF NAMIBIA SHANGALA                                                                   5TH RESPONDENT

NAMIBIA MARINE PHOSPHATE (PTY) LTD                                 6TH RESPONDENT

 

 

 

Neutral citation:   Confederation of Namibian Fishing Associations v Environmental Commissioner Teofilus Nghitila (HC-MD-CIV-MOT-REV-2016/00335) [2021] NAHCMD 308 (30 June 2021)

 

 

Coram:           GEIER, J

Heard:            07 July 2020

Delivered:      30 June 2021

 

 

Flynote:         Environmental law — Application to have a marine phosphate mining licence declared as having lapsed — Locus standi of applicants – All members of the fishing industry — Applicants feeling aggrieved that their fishing rights and interests in the fishing industry are threatened by the mining licence - the case they brought entails environmental issues – As the Namibian Constitution envisages a generous regime of access to courts’ and. ‘ … mandates a broad approach to standing for the purpose of the enforcement of … rights …’ and where‘ … The rules of standing should not ordinarily operate to prevent citizens from obtaining legal clarity as to their legal entitlements – Court finding that the applicable constitutional provisions, as interpreted by the Supreme Court, envisage a generous regime of access to courts which have expanded the common law principles in this regard - Court  finding that the applicants’ interests are/will be sufficiently directly and prejudicially affected by the granting of ML 170, the ECC that was obtained in this regard and the consequential contemplated marine mining activities that were to follow which afford them the necessary locus standi and thus the ‘title to prosecute their claims’ in this instance and where the relief sought does not only entail immediate declaratory relief sought with its consequences, but which relief, as a consequence, was also of wider impact, as far as the relevant environmental considerations and impacts are concerned, and, where the applicants where also seeking to protect ‘the environmental fabric’ of the traditional fishing grounds in which they operate-

 

Practice — Parties — Locus standi — First, second and third applicants voluntary associations - An association can sue or be sued as a universitas in terms of the common law if it has the capacity to acquire rights, has the power to own property and has perpetual existence. In order to establish whether or not an association has the power to sue regard is to be had to its constitution in terms of which such power may be expressly conferred or from which such power may be implied. In this regard consideration is to be given to the activities, aims and objectives of an association. Even if an Association’s Constitution contains no indication of the right to sue, a Court may, therefore, having regard to its activities, aims and objectives infer the power to sue as inherent in the express powers given to the office bearers. A written Constitution is therefore desirable but not essential to establish whether an Association complies with the requirements – the court thus in applying these principles found that the first, second and third applicants were legal entities that could sue and be sued – and that they could thus have instituted these proceedings in their own right -

 

Practice — Parties — Authority to institute proceedings — Power of attorney authorising Chairperson of the first applicant to institute application and to depose to papers in support — challenge held to be weak – instead of adducing any evidence itself, on the basis of which it mounted the respective challenges, NMP proceeded to create ‘artificial’ challenges, simply with reference to the prescribed constitutional provisions pertaining to the relevant decision-making-processes of the respective first three applicants, and by simply questioning whether or not such provisions had indeed been followed and then proceeding, by simply denying the authority of those applicants, on the basis of its own lack of knowledge - It was thus concluded that NMP’s ‘trigger-challenge’ was not a strong one - Once challenged the applicants responded by providing the relevant resolutions in reply which bore out that all the applicants had authorised the bringing of this application and that they also authorised the chairperson of the first applicant to do so on behalf of all the applicants, authorising him also to sign all the necessary papers, including affidavits, and to take all steps necessary in this case. In any event and in so far as any such actions had not been authorised they were also ratified - Ultimately it appeared that what should have been prevented in motion proceedings, namely the so-called ‘hot-bed’ for spurious challenges, was precisely, what occurred in this application. The challenges were thus not upheld.

 

Practice — Applications and motions — Declaratory order — Court holding that the principles of delay also have a bearing on declarators – Court holding further that. where an application for declaratory relief was unduly delayed, the question of delay would arise as declaratory relief is discretionary. Unreasonable delay thus was a factor to be considered in this context. Court proceeding to consider and apply the principles pertaining to delay also in this matter.

 

Practice — Applications and motions — Declaratory order — Delay in instituting proceedings for declaratory relief — Whether delay unreasonable – Court finding proceedings not unreasonably delayed – In any event the Court would have condoned such delay mainly in the exercise of its discretion on the basis of the considerable public interest in the matter and because of the importance of the issues raised in this case and – where the chronology of events leading up to the application would have justified the delay to some extent and - on the basis of which - it probably could not have been said that the delay – although lengthy – should, in the circumstances of the chronology and the activities reflected there, be regarded as egregious. Although the question of the substantial prejudice to NMP would have played an important part in the exercise of the discretion that would then have had to be exercised, the court would ultimately have been swayed by the argument to the effect that the issue of delay should - in this case - also be viewed against the relevant environmental and constitutional concerns - where the court - in its discretion – and in the consideration of what would also be in the interests of justice – and with reference to what was at play, namely important environmental issues, which should enjoy constitutional protection - would invoke a more generous approach, as the matter : ‘ … shouts out for a decision on the merits, as opposed to form or procedure - which is really what the defence of delay is all about’ and where ‘ … it would be a sad day for justice if, 100 years hence, the fish is all depleted and that the next generation must read in the law reports, that a decision was never made on the merits, but avoided for delay’ – NMP’s challenge on the basis of ‘undue delay’ was thus not upheld.

 

Applicants claimed that NMP had not complied with the applicable mineral licence conditions in terms of which it had to submit an Environmental Impact Assessment and an Environmental Management Plan Report within 6 months from date of issue of its mining licence when it submitted a ‘draft report’ in this regard on the last day of the prescribed 6 month period and a ‘final one’ outside the time window created by the applicable condition. Court finding on the facts that what was submitted was in actual fact a ‘draft report’ and that the relevant condition did not contemplate the filing of a ‘draft report’ and that NMP was thus in breach of the relevant mining licence condition – the question thus arose what the implications of this would be with the coming into force of the Environmental Management Act and where Section 57 permits a person who was undertaking a ‘listed activity’ at the commencement of the Act to continue such ‘listed activity’ for a period of not exceeding 1 year – a person wishing to continue with a ‘listed activity’ after the expiry of the 1 year period in terms of an ‘authorisation’ must apply for an Environmental Clearance Certificate before its expiry – a person who has lodged such application may continue the ‘listed activity’ until such time that the application has been dealt with.

 

The court firstly found that NMP was undertaking a ‘listed activity’ – as defined - at the date of commencement of the Environmental Management Act – section 57 was thus applicable-

 

Court also proceeded to interpret section 57 of the EM Act and held that the underlying ‘authorisation’ on the strength of which NMP operated at the time, was the ‘authorisation’ conferred by the granting of the mining licence – which was the ‘underlying authorisation’ in terms of which certain activities, (which were found to be ‘listed activities’), where undertaken at the time of the commencement of the EM Act, but that this ‘underlying’ authorisation was not impacted upon by the provisions of section 57 - but only the ‘authorisation’ to continue to undertake the ‘listed activity’ as defined.

 

The court held further that such interpretation was also founded on the undeniable recognition of the express rights conferred on mining licence holders such as NMP by the Minerals Act, the express procedures set out there for the cancellation of such ‘authority’/licences in which regard also the applicable Constitutional considerations such as property rights needed to be taken into account, all of which militate towards an interpretation that what may be legitimately impacted upon by the provisions of section 57 was the right, or ‘authorisation’ to continue with a ‘listed activity’ without the necessary ECC, which in turn would give recognition to the important environmental policy considerations as listed in Article 95 of the Constitution, as expressed through the EM Act and its provisions.

 

It was held further that it was beyond doubt that no ‘listed activities’ may be undertaken without an Environmental Clearance Certificate in circumstances where – importantly - the legislature has made it clear that this prohibition is to also apply – ‘despite any other law to the contrary’. The criminilisation of the undertaking of a listed activity, unless the person is a holder of an ECC, undersores the seriousness of the legislature to give expression to the here relevant principles of State policy.

 

The court thus concluded that the prohibition to carry out a ‘listed activity’ ‘without an Environmental Clearance Certificate’ was absolute.

 

As NMP, at the relevant time, undertook a ‘listed activity’ and as NMP did not apply validly within the prescribed period of time for an EIA/EMPR and as NMP was in this regard in breach of the applicable terms and conditions of ML170 and in circumstances where NMP had thus merely purportedly applied for an ECC - which application was later granted but then was set aside - it was found that - ultimately NMP was thus without an Environmental Clearance Certificate. The provisions of the EM Act are clear and to the effect that a ‘listed activity’ may – under threat of criminal sanction - not be undertaken without an ECC. Accordingly it was found that NMP, currently, was not entitled to ‘undertake any listed activity’. The sought declaratory relief was thus granted accordingly in the exercise of the Courts discretion.

 

Here the court took into account that the applicants were considered as sufficiently interested parties to afford them locus standi and that they had also established ‘a sufficiency of interest’ in regard to the subject matter of the litigation. All parties would also be directly affected by the decision. The outcome of the matter could thus also not be considered abstract, hypothetical or academic. A ‘tangible and justifiable advantage’ for the fishing industry and the environment would flow from the granting of the sought declaratory relief and where there would also be a measure of ‘utility’ in the orders that will flow from these proceedings.

 

Finally the court excercised its discretion to grant declaratory relief also on the ground that this would be in the interests of justice – which interest was underscored by the immense public interest in the matter and the environmental issues at play -

 

Summary: The remaining facts appear from the judgment.

 

 


ORDER


 

  1. The sixth respondent (NMP) - not having applied in the prescribed manner for an environmental clearance certificate during the relevant time – and – currently – in any event being without an Environmental Clearance Certificate - is hereby  declared -  in accordance with the provisions of section 57 as read with sections 27(1) and (3) of the Environmental Management Act, 7 of 2007 - not to be entitled to undertake a ‘listed activity’ until such time that it has obtained a valid Environmental Clearance Certificate in relation to such activity or activities,

 

  1. The application to strike succeeds with costs.

 

  1. The applicants are to bear such costs jointly and severally, the one paying, the others to be absolved, such costs to include the costs of two instructed- and one instructing counsel;

 

  1. NMP is to pay the remainder of the costs of this application, such costs to include the costs of three instructed- and one instructing counsel.

 


JUDGMENT


GEIER, J

 

Introduction

 

[1]        Namibia Marine Phosphate Pty Ltd, the 6th respondent herein, wishes to engage in marine phosphate mining through its ‘Sandpiper Project’. It wishes to do so in an area located off the Namibian coast, situated in the Atlantic Ocean approximately 120km’s south southwest from Walvis Bay and roughly 40 to 60 km’s west of Conception- and Meob Bay.[1]

 

[2]        For this purpose it has secured the appropriate mining licence, ML 170. The mining licence area is 25.2 km wide, (greatest width), and 115km long, (longest length), which covers an area of 2233 km2.[2]

 

[3]        The envisaged mining activities will occur offshore through the dredging of phosphate enriched sediments in water depths of 190 to 275m in the target mining areas, described as Sandpiper-1 (SP-1).

 

[4]        Three target recovery areas have been selected within the total mineral resource area, two of which are 22 x 8 km in size and one 11 x 6 km’s, totalling 418km’s2. Approximately 3 kms2 of the resource will be mined in the selected target recovery areas annually over the 20 year licence period in order to achieve the targeted 3Mt pa dry product production target.[3]

 

[5]        It is thus expected that up to 60km2 of the sea bed will be dredged during the 20- year licence period.

 

[6]        A ‘Trailing Suction Hopper Dredger’ will be deployed for this purpose.

 

[7]        This dredger will apparently be on site three times a week.

 

[4]

 

[8]        The main project elements are:

 

‘a)        Dredging annually 5.5 Mt of phosphate enriched marine sediments from 190 to 275 m water depths;

 

  1. Transporting this ‘slurry’ in the dredger to an offshore discharge buoy – pipeline (approximately 1.2 km offshore) and pumping the material to a coastal buffer pond, located to the south of the Walvis bay salt works;

 

c)         Reclaiming the slurry from the buffer pond and screening out the shell fraction;

 

d)         Pumping the slurry along a 26 km pipeline to the processing plant located 5km’s to the east of Walvis Bay;

 

e)         Processing (washing) the slurry to separate the rock phosphate from the fines, and

 

f)          Exporting the rock phosphate to international destinations through the port of Walvis Bay.[5]

 

[9]        The mining licence area is located within the Northern Benguela of the Benguela current Large Marine Ecosystem, on the outer shelf to the south west of Walvis Bay. The Benguela displays a high degree of variability over a broad spectrum of time and spatial scales. It is an important centre of marine biodiversity and marine food production. Its distinctive bathymetry, hydrography, chemistry and trophodynamics combine to make it one of the most productive ocean areas in the world. This high level of primary productivity of the Benguela supports an important global (and local) reservoir of biodiversity and biomass of zooplancton, fish, seabirds and marine mammals, while near- shore and offshore sediments hold rich mineral deposits. These living and non-living resources are of economic and strategic importance to Namibia.[6]    

 

Further Background and chronology of events leading to this application

 

[10]      These and the ‘annual developments’, which occurred over a number of years, where conveniently sketched in the applicants heads of argument on the basis of the 6th respondent’s version set out in the main answering affidavit.

 

[11]      A number of abbreviations where utilised by counsel for both parties in their extensive heads of argument filed in support of the parties’ cases. As it is considered helpful to adopt and utilise them also in this judgment I will proceed to set them out first:

 

‘EC : the First Respondent :  the Environmental Commissioner;

 

NMP : The Sixth Respondent ;

 

ECC :  Environmental Clearance Certificate;

 

EIA : Environmental Impact Assessment; 

 

EMPR : Environmental Management Plan Report; 

 

EMP : Environmental Management Plan;

 

ML 170 :  the Mining License No. 170;

 

MET : Ministry of Environment and Tourism;

 

MME : Ministry of Mines and Energy;

 

MFMR : Ministry of Fisheries and Marine Resource;

 

EM Act : the Environmental Management Act, 2007; 

 

The Minerals Act : The Minerals (Prospecting and Mining) Act, 1992.’

 

[12]      When it then comes to the said chronology leading to this application the following developments where considered most relevant :

 

‘2010:

 

NMP appointed environmental practitioners who commenced with preliminary processes for the EIA.  [7]

 

2011:

 

NMP appointed the environmental practitioners who would oversee the EIA/EMPR process to be conducted in accordance with the provisions of the Act and Regulations (which were at the time in draft form) and conducted environmental activities as required.  [8]  The mining licence was granted on 26 July 2011 and NMP commenced scoping and public consultation as well as consultation with MFMR.  [9]  On 15 December 2011 the scoping report including comments from the public was submitted to the Environmental Commissioner.  [10]

           

2012:

 

On 12 January 2012 NMP submitted a draft EIA/EMPR to MET, MME and MFMR and opened it to the public for comments.  [11]  On 11 April 2012 NMP submitted its final EIA/EMPR to the Permanent  Secretary of the MET and provided a copy to the Mining Commisioner.  [12]  Further consultations were held with interested and affected parties as directed by the Environmental Commissioner, in particular with the MFMR and the fishing industry. 

 

2013:

 

An independent external review was conducted as directed by the Environmental Commissioner. [13] NMP finalised its verification programme with input from various stakeholders and prepared to conduct the verification survey.  On 19 September 2013 Cabinet announced an 18–month ban on the issue of environmental clearance certificates for bulk seabed mining of industrial minerals including phosphate.  [14] 

           

2014:

 

NMP conducted its verification survey, analysed the data collected and prepared a report which was submitted to the Environmental Commissioner and MME in November 2014.  An updated EMPR was also submitted to the Environmental Commissioner on 8 December 2014.  [15]

 

2015:

 

Cabinet’s moratorium expired in March 2015. [16] The Environmental Commissioner ordered an external review of NMP’s verification report. This was completed in November 2015.  [17]

 

2016 - 2018:

 

NMP had meetings and workshops with various stakeholders to discuss its verification report and results.  MFMR objected in writing to NMP’s EIA and verification report and opposed the award of an environmental clearance certificate.  [18]  Environmental Commissioner presented NMP’s application to Cabinet who directed that he use his discretion.  [19]  The environmental clearance certificate was issued on 5 September 2016.  [20]  Mr Gowaseb noted an appeal in terms of Section 50 of the Act.  [21]  Applicants launched this application on 1 November 2016.  The second respondent upheld Mr Gowaseb’s appeal and set aside the decision to issue the certificate.  NMP appealed to the High Court against this ruling and succeeded.  [22]  The second respondent reheard Mr Gowaseb’s appeal and referred the matter back to the Environmental Commissioner to conduct a further consultation process in respect of NMP’s application for an ECC.’

 

[13]      From this chronology the most important dates where considered to be the: 

 

            ‘13th July 2011:           ML 170 issued;

12th January 2012:     draft EIA submitted;  

6th February 2012:     The EM Act promulgated; 

11th April 2012:           final EIA submitted; 

11th April 2012:           application for ECC (set aside later);

1st November 2016:     application launched.’

 

[14]      This is then the application now serving before the court. It is an application which was launched by the members of the Namibian fishing industry, to wit the Confederation of Namibian Fishing Associations, the Namibian Hake Association, the Midwater Trawling Association and Omalau Fishing Pty Ltd , the first to fourth applicant’s in this matter, in which they seek declaratory relief in that they ask for the following orders:

 

‘1.        Declaring that sixth respondent (NMP) not having applied in the prescribed manner for an environmental clearance certificate in terms of section 32 of the Environmental Management Act, 7 of 2007 (the Act) within a period of 1 year calculated from 6 February 2012, the mining license number 170 issued to the sixth respondent on 8 July 2011 expired as contemplated under Section 57 of the Act on or about 5 February 2013 and is thus invalid and of no force and effect.

 

2.         In the alternative to prayer 1, an order declaring that the mining license number 170 already lapsed on (25 January 2012) on account of the sixth respondent’s failure to comply with the mandatory conditions of its aforesaid mining license to undertake an environmental impact assessment within the prescribed period of 6 months.

 

3.         ... an order of costs against the sixth respondent.’ 

 

[15]      The other respondents, being the Environmental Commissioner, Teofilus Angula, the Minister of Environment and Tourism, the Minister of Fisheries and Marine Resources, the Minister of Mines and Energy and the Attorney-General of Namibia, the ‘ Government Respondents’, did not oppose the application. Here it should possibly be said that the Minister of Mines nevertheless filed an explanatory affidavit on behalf of all the Government Respondents.

 

[16]      The application was however opposed by NMP, the sixth respondent. It did so on interlocutory grounds and on the merits.

 

[17]      The main issues which arose against this background where then: 

 

    1. whether the applicants had been duly authorised to launch the application and whether(Amukwa) was authorized to depose to the main affidavits filed in support thereof; 

 

    1. whether the Applicants have established locus standi, in particular: 

 

      1.    their legal capacity to litigate;

 

      1.    sufficient interest;

 

    1. whether the Applicants should be non-suited for delay

 

    1. whether the mining license ML 170:

 

      1.   had expired on 5 February 2013 as NMP had failed to apply timeously for an environmental clearance certificate, within 1 year of 6 February 2012 (ie. within 12 months following promulgation of the Environmental Management Act, 2007) in the prescribed manner;

 

      1.   lapsed on 12 or 25 January 2012 on the basis that NMP had failed to undertake an environmental impact assessment within a period of 6 months from the date of issue of the licence.

 

[18]      It should be mentioned that an application for the striking out of certain passages in the founding and replying affidavits was also brought by the 6th respondent, which application is unopposed and which will thus have to be granted.

 

[19]      As I also see no reason to change the sequence in which counsel have addressed the various issues which require determination in this case. I will thus follow that lead.

 

[20]      Finally, and as the applicants have also now confined themselves to seeking the declaratory relief quoted above I consider it appropriate to call to mind those general legal principles against which the declaratory relief will have to be determined. This was in any event also considered apposite by counsel for the 6th respondent.

 

Declaratory relief generally

 

[21]      At the outset the court was referred to section 16(d) of the High Court Act 1990 in terms of which the court has the power, in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination. This Court also retains its common-law powers of making a declaratory order in proper circumstances[23]

 

[22]      Importantly, and as an applicant must establish that it “has an interest in an ‘existing, future or contingent right or obligation’”, it is necessary for the court to establish whether the necessary conditions precedent are in place for it to exercise its discretion. If the conditions precedent are met, the second leg involves exercising its discretion by deciding whether or not to grant the order sought[24]. It is trite in this regard that a court will not deal with abstract, hypothetical or academic questions in proceedings for a declaratory order. A “mere academic interest” will not suffice, there must exist “some tangible and justifiable advantage in relation to the applicant’s position with reference to an existing, future or contingent legal right or obligation” which “must appear to flow from the grant of the declaratory order sought”[25]. An applicant seeking a declarator should also have a direct interest in the right to which the order will relate. “The right must attach to the applicant and not be a declaration of someone else’s right”[26].

 

[23]      The Court was also reminded that[27]

 

‘It is essential for a prospective litigant to have the necessary locus standi, or standing in law, when commencing proceedings. As stated by Devenish, 'This requires that a litigant should both be endowed with the necessary capacity to sue, and have a legally recognized interest in the relevant action to seek relief' and that 'Standing is of inordinate importance as far as justice and human rights are concerned. A narrow definition of standing will obstruct access, whereas a wide one will facilitate it.'

 

In Family Benefit Friendly Society v Commissioner for Inland Revenue[28] Van Dijkhorst J stated the requirement for a legally recognised interest as follows:

 

‘The applicant must be an 'interested person ' (Afrikaans: 'belanghebbende daartoe'); not in vacua, but interested in the right or obligation enquired into. The requirement of a direct interest is set as the actio popularis has been abrogated for reasons of public policy . The Courts should not be cluttered with actions by well-intentioned starry-eyed busy-bodies who have no direct interest in the outcome of the litigation . Dalrymple and Others v Colonial Treasurer 1910 TS 372 392; Roodepoort-Maraisburg Town Council v Eastern Properties (Prop) Ltd 1933 AD 87 101. (The resurrection of the actio popularis in constitutional matters in terms of section 7(4) of the Constitution does not concern us here). The interest must be a real interest, not merely an abstract or intellectual interest. Durban City Council v Association of Building Societies (supra at 33); Cabinet of the Transitional Government for the Territory of South West Africa v Eins 1988 (3) SA 369 (A) at 388- 9. A mere financial or commercial interest is not enough[29]. A direct interest is required. PE Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 801 (T) at 8048-F.’

 

[24]      Obviously the rights in issue must attach to the applicant or the plaintiff, not someone else.

 

[25]      Importantly it is to be noted that a court has a discretion whether to grant or refuse an application for a declaratory order. Some factors which could be taken into account are the utility of the remedy, and whether, if granted it will settle the question at issue between the parties, the existence or absence of an existing dispute, some tangible and justifiable advantage in relation to the applicant's position must appear to flow from the grant of the order sought, and that, despite the fact that no consequential relief is being claimed or could be claimed, yet justice and convenience demands that a declaration be made, or that the order will be of practical significance, or will be made on considerations of public policy. The availability of other remedies [30]  and “undue delay on the part of the applicant may adversely influence the court in the exercise of its discretion”[31].

 

The questions of the Court

 

[26]      Finally it should be mentioned that the Court, at the first hearing of this matter, meru motu raised certain questions, which it required the parties to address. They were :

 

‘1.1      Does the fact that environmental issues are central to the background of this case impact on the traditional legal approach adopted in the determination of the issues such as –

 

      1. The onus of proof, and more particularly whether or not also in cases where there is no certainty that, for instance the mining activity in question, will or will not have an adverse effect on the environment and the fishing industry – a precautionary principle should be applied resulting in turn in a reversionary onus;

 

      1. The interpretation of statutes; and the way in which the declaratory relief sought, is to be determined. 

 

    1. Are the objects and principles pertaining to environmental management, as set out in section 2 and 3 of the Environmental Management Act, 2007 (Act 7 of 2007) of any relevance to the decision-making process in this case and should or can such objects and principles be taken into account by the court in this regard, and if so, which objects and principles in particular?

 

    1. To what extent can – should the court have regard to the provisions of Article 95(1)(l) as read with Article 101 of the Namibian Constitution in the determination of questions such as locus standi and statutory interpretation for instance.

 

    1. Is there room for the appointment of a court expert regarding the issues of possible environmental impact or not of the marine phosphate mining activities that the sixth respondent intends to conduct?’

 

[27]      In a subsequent status report (dated October 2019), it was recorded that the parties’ joint position was that they did not believe that a court appointed expert was necessary or required. The court thus accepted that position for purposes of this case, although the time may well come when, in the protection of environmental rights and interests, separate and independent legal representation may indeed be required.

 

[28]      Be that as it may. Counsel for the parties then obliged by filing supplementary heads of argument.

 

[29]      Importantly and at the outset of these additional submissions it was recorded on behalf of NMP that : ‘ … environmental aspects only concern locus standi and certain of the other in limine issues raised. The crux of the case on the merits, should it be held that the applicants have locus standi and have not unreasonably delayed and that declaratory relief at all should be considered, can be resolved in NMP’s favour on … applying ordinary principles of statutory interpretation. …’.

 

[30]      On behalf of the applicants’ it was ultimately contended that it would, strictly speaking, not be necessary, even, to consider whether a different test applies with environmental risks (at least not for the determination of locus standi) in this case as the applicants’ locus standi had been established on NMP’s own version.

 

[31]      In contradiction to NMP’s stance that the applicants’ case on the merits should be determined by applying ordinary principles of statutory interpretation, applicants’ counsel submitted that :

 

‘In interpreting these provisions, the court must be guided by the principles set out in art 95(l).  [32]    The principles in art 95 requires of the state to adopt policies to ensure maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and utilization of natural resources on a sustainable basis for the benefit of all Namibians…. 

 

These provisions create a duty for the State.   As such, they oblige the State to protect and maintain biodiversity and ecology.  

 

We submit that the impact of the Section goes even wider. 

 

As an arm of State, the judiciary is obliged to implement these provisions and to protect the environment from hasty / unsound executive policies or decisions.   This it can only really do if it acts as the upper guardian of the environment.

 

These provisions, we submit, therefore weigh heavily in favour of a more generous approach to locus standi and statutory interpretation.  

 

In the case of locus standi, the mere risk of harm should afford a hearing (as long as it is not so remote as to be negligible). 

 

In the case of interpretation, all provisions relevant should be interpreted to achieve the overall objective, namely to protect the environment for future generations and to prevent exploitation where there is risk of harm.’ 

 

[32]      Counsel presented more detailed and very interesting and helpful submissions in this regard. The Court is grateful for counsels’ efforts and industry. I will, where necessary revert to these submissions.

 

[33]      With the ‘table so having been laid’ I now turn to consider the in limine objections first.

 

Have the applicants shown locus standi and the authority to institute this application

 

[34]      Counsel are in agreement that these issues are interlinked. They also agree that the onus in this regard rests on the applicants. It is further not in dispute that the issue of locus standi involves two issues, namely that of legal standing and interest.

 

The arguments on behalf of NMP

 

[35]      In support of these in limine objections counsel for NMP, Mr Tötemeyer SC, who appeared with Mr Obbes, introduced their argument by pointing out that the deponent to the founding papers (Mr Matti Amukwa) purports to act on behalf of “all the applicants collectively and individually” as he alleges that he has been “duly authorised” by all the applicants[33] and that it appears ex facie paragraph 1 of the founding affidavit, that he is the Chairperson of the first applicant and that nothing further, such as an extract from a resolution on which the alleged authority was based was annexed. It was to be noted that the second and third applicants were cited as associations and that the fourth applicant was cited as a company and that NMP disputes that the applicants have the necessary locus standi to initiate the application and further that the deponent to the founding papers is duly authorised to initiate the application for and on behalf of the second, third and fourth applicants[34]

 

[36]      As in terms of clause 11.2.1 of the constitution of the first applicant[35] – its Chairman may act as a representative of the first applicant and as spokesperson in accordance with “guidelines determined by the members in general meeting”.  There was however no indication in the founding (or, for that matter, replying) papers that any such guidelines have in fact been determined, and it was accordingly unclear as to whether or not the deponent was indeed duly authorised to act as a representative of the first applicant, the “CNFA”. That similarly there was no indication in the founding or in the replying papers that the provisions of clause 9 (regulating meetings of the CNFA), were complied with in respect of any resolution that may have been taken by the CNFA for the purposes of initiating the present proceedings against NMP. It was noted that there is no general power accorded to the chairperson of the CNFA to take any steps that may be necessary for the purposes of initiating proceedings as the relevant constitution is silent on this score.

 

[37]      It was against this background submitted that a resolution requires to be in place, taken at a duly and properly convened meeting of the CNFA but that there was no evidence in the founding or the replying papers that any such meeting had taken place and that it was thus disputed that the proceedings were/are properly authorised in respect of the first applicant and further that the deponent Amukwa was/is duly authorised to initiate these proceedings for and on behalf of the first applicant[36]

 

[38]      With reference to the constitution of the second applicant, “MA3”[37], it was pointed out that there was no evidence whatsoever put up in the founding or in the replying papers that demonstrated any decision-making, compliant with the provisions of the relevant constitution in question and which authorised the initiation of the application against NMP or the deponent to initiate the application on behalf of the said respondent[38]. Although he relevant constitution contains strict provisions regarding the convening of meetings and the taking of decisions, no evidence had been put up by the applicants that the requirements of the relevant provisions had in fact been met;

 

[39]      It was argued further that - more fundamentally - there was no provision in “MA3” which established the second applicant – the “NHA’ as a legal person, capable of suing and being sued[39] and that there was also no provision which allowed the association to authorise any third party to institute proceedings on its behalf and that the attempt by the applicants to address this issue in reply was unavailing.

 

[40]      As far as the third applicant was concerned – and again with reference to the third applicant’s constitution, “MA4”[40] – it was submitted that it appeared from paragraph 6.10 - that the Midwater Trawling Association – ‘ the MTA’ - only has the power “to take court action for the “recovery of any amounts due to the association or to compel the fulfilment of any obligations in its favour, and also to defend any proceedings that may be instituted against it”; It was thus argued that the powers of the MTA, accordingly, do not include, the power to initiate proceedings of the present nature. What was more was that clause 12 of the MTA constitution addresses a committee, which in terms of clause 14, exercises “the management and control of the affairs of the MTA”, and which committee, shall have full power and authority to do any act, matter or thing which could or might be done by the association accepting such matters as are in the rules specially reserved to be dealt with at a general meeting of the members”.  As the said committee, therefore, does not have more powers than the association itself, the relevant constitution does not contemplate the institution of legal proceedings or, for that matter, the authorisation of a third party to purport to act for and on behalf of the association in respect of any legal proceedings (such as the present); In any event no evidential matter had been put up to demonstrate that these requirements had been complied with, particularly with regard to the convening of a meeting for the taking of any decisions relevant the decisions to initiate the present proceedings and to authorise the deponent of the founding affidavit Amukwa to do so on behalf of the MTA[41]

 

[41]      It was then contended that annexures MA25 – MA28 - introduced in reply – in response to the challenge to provide the disputed authority – and also purporting to “ratify” all “actions taken” by Mr Amukwa “in respect of this application”[42]) - could not be of assistance to the relevant applicants as the resolutions did not reflect the decision-making bodies[43] and the necessary processes that had to occur as it was not apparent that any meeting had been convened (by any of the relevant decision-making bodies), or that such bodies in fact took the purported decisions reflected in the said annexures. It was pointed out further that the said annexures did also not reflect that any initial decisions (of the relevant decision-making bodies) were in place when the application was initiated.

 

[42]      On the issue of locus standi [44] counsel for the NMP reminded the Court firstly that this aspect would also having a bearing on the exercise of this Court’s discretion that would have to be exercised in respect of the granting of the sought declaratory relief.

 

[43]      It was further submitted – 

 

  1. that the applicants had not – through the adducing of admissible evidence – established that they were affected by the granting of ML170 or the ECC, or that they have a sufficient interest in the subject matter of the application. Whilst conceding that annexure “MA1” relates to a registration document in respect of the “Sandpiper Phosphate Project” and that the relevant applicants were recognised as “I&AP’s” for the purposes of the EIA – EMPR process, that document itself did not reflect that the first to third applicants were “accepted and acknowledged” by NMP as “interested and affected parties”. In any event, so the argument ran further, whether or not the applicants have the necessary locus standi to initiate the present application would be a different question as the applicants have not established damage or injury or a reasonable apprehension of same.;

 

  1. that the applicants had in any event failed to establish (on admissible evidence, in the founding papers) “some tangible and justifiable advantage in relation to the applicant’s position with reference to an existing, future or contingent legal right or obligation” which would appear to flow from the grant of the declaratory order sought;

 

  1. that the applicants had failed to establish (on admissible evidence, in the founding papers) a “direct interest in the right to which the order will relate” and that such right would attache “to the applicant and not be a declaration of someone else’s right”[45];

 

  1. that the applicants had not established that they will suffer prejudice as a fact as a result of the granting of the ECC to NMP or  in respect of the proposed activities of NMP in terms of the EEC and ML170[46]. NMP, so it was submitted further, has established that there would be no detrimental impact upon any of the applicants in respect of the exercise of its rights under ML170[47];

 

  1. that the purported attempt by the applicants to deal with the challenge to locus standi in the replying affidavit was unavailing[48] and in any event constituted the impermissible introduction of new matter in reply[49], which stands to be struck-out or be simply ignored;

 

  1. that in the event of the new matter not being struck-out or ignored, then - whether or not fishing associations were identified as stakeholders – this would be neither here nor there and would not accord them locus standi for the purposes of the relief presently sought;

 

  1. that the reliance on paragraph 3.12 of annexure “MW45” was similarly unavailing – as, whether or not NMP intends to have an exclusive zone declared over the target mining area, does not give the applicants locus standi to challenge ML170. In this regard it was disputed that “it is clear that the applicants and their members’ rights and operations will be affected by NMP’s mining operations”. It was submitted that this was by no means “clear”.  This was in any event a threshold issue which should have been put up by the applicants in their founding papers[50].  In this regard it was highlighted again that the applicants had not produced any admissible, scientifically valid data to support their claim of the alleged “considerable adverse effects”[51]. By contrast NMP had put forward expert opinions based on scientific facts and in situ data from ML170 that the proposed scale of mining operations intended by NMP would have no significant impact on the marine environment or eco-system and as such will not impact the commercial fishing industry in any detrimental way and this had been independently verified by the Environmental Commissioner (“EC”). The applicants, on the other hand had notably, not put up any factual matter to gainsay this. This would also be detrimentally impacting on the locus standi of the applicants[52] and, for that matter, the granting of the sought discretionary;

 

  1. that in any event and even if locus is found to exist, the relief sought should still be refused as any suggestion that the applicants’ interests will be affected, has conclusively been gainsaid by the expert evidence put up by NMP, which showed no conceivable prejudice to the applicants,

 

  1. that in the exercise of its discretion, this Court should thus refuse the relief sought. Declaratory relief is discretionary in nature. The absence of a case having been made out by the applicants in respect of prejudice militates against the exercise of the discretion in the applicants’ favour.

 

[44]      Mr Tötemeyer, during oral argment, then submitted that one would have to assess the interests of the applicant’s in the matter against the case they had put up and against the ‘ reasoned expert opinion’ in support of the contention that the ecosystem and fishing will not be impacted upon in any significantly detrimental way’ and that they thus in support of their case ‘trawl’ through the respondents’ answering papers, and where they ignore the final conclusions drawn by the experts that the proposed mining activities will merely cause ‘insignificant impact’.

 

[45]      He however fairly conceded that as a general proposition, mining activities will always cause some impact, disturbances and damage.

 

[46]      In regard to the precautionary principle he pointed out that this was best encapsulated in section 3(2)(k) of the EM Act of 2007[53]. It was really a principle that one should err on the side of safety when it comes to potential environmental damage when there is no certainty as to the potential impact an activity may have. In this regard however there should at least be sufficient evidence, which he submitted should be the threshold that should be met before the precautionary principle should find application. From the authorities it appeared how the court will ultimately deal with this ie. one should really put up sufficient evidence and if you do that would be enough to create a reversionary onus. The requisite degree of scientific uncertainty would activate the principle. This would have to be taken into account when determining the issues of locus standi and substantial delay.

 

[47]      He reiterated that the issues of locus standi and authority had not been established in the founding papers. The applicants had thus not met the threshold requirements for the precautionary principle to apply. They also failed to establish prejudice.

 

[48]      In regard to the question of authority he agreed that if there was a weak challenge mounted in this regard the challenged party was entitled to counter with a minimum of evidence. He submitted however that this argument lost sight of the fact that only the relevant resolutions had been put up in response. If one would consider Mr Amukwa’s response it appeared that he is the chair and that in terms of the applicable constitution he may act as representative of the CNFA in accordance with guidelines determined by members in general meeting. It however seems that no such guidelines where determined and no general power was given to the chair. Similar considerations would apply to the other applicants where the resolutions leave in doubt how the resolutions where obtained and whether this was in accordance with the various constitutional requirements. The only exception was the fourth applicant, Omalu Fishing Pty Ltd, where the directors signed the appropriate resolution, in which regard he however pointed out that only three of the four directors had signed the resolution. Mr Tötemeyer thus fairly conceded that if the only applicant before the court was the fourth applicant the application could not fail on this in limine ground.

 

The counter-arguments on behalf of the applicants’

 

[49]      The introductory submissions raised on behalf of the applicants by Mr Marais SC, who appeared with Ms Bassingthwaighte and Ms Campbell, acknowledged that, in the first place, the question of locus standi involves two issues, namely legal standing and interest.

 

[50]      The court was referred to Council of the Itireleng Village Community and Another v Madi and Others 2017 (4) NR 1127 (SC) where the Supreme Court summarised the applicable principles:

 

            ‘As has been made clear by the South Africa Supreme Court of Appeal, the question of legal standing is in a sense procedural, but it also bears on substance.  It concerns the sufficiency and directness of interest in the proceedings which warrants a party’s title to prosecute a claim.  The onus is on a party instituting proceedings to establish legal standing.  This not only concerns establishing sufficiency and directness of interest but also that it is the rights-bearing entity or acting on the authority of that entity or has acquired the rights’.    [54]

 

 

[51]      It was then pointed out that an association can sue as a universitas in terms of the common law, if it complies with two requirements, namely perpetual succession and a capacity to acquire rights and to own property apart from its members.[55]   In order to establish whether an association has the power to sue, such power may arise expressly from its constitution or may be implied, in the sense that it is incidental to the express powers. This, so the submission ran, was, after all, a factual enquiry. [56] Accordingly and if therefore the constitution of an association makes it clear that it has the characteristics of a universitas, cadis quaestio. In those instances where the constitution was not clear, one could have regard to the activities of the association to establish whether it constitutes a universitas. [57] Even if an association’s constitution contains no indication of the right to sue, a Court may, having regard to its activities, aims and objectives, infer the power to sue as inherent in the express powers given to the office bearers. [58] A written constitution was therefore desirable but not essential.[59]

 

[52]      It was thus submitted that the courts, in their determination of the question of locus standi of a voluntary association invoke the following primary aids:

 

  1. there has to be a corporate body of the nature of a universitas personarum;

 

  1. it has to have the two main characteristics, namely perpetual succession (independent of the changes of membership) and the capacity to acquire rights and incur obligations independent of its members (most importantly, the capacity to own property);

 

  1. in order to determine this, it is necessary first to consider the Constitution;

 

  1. if the answer does not lie there, either from its express terms or by way of implication, regard has to be had to the nature of- and objects of the association;[60]

 

  1. where the power to sue on behalf of an association was given solely and exclusively to particular persons, in terms of its constitution, then only those could institute an action or launch an application.;[61]

 

  1. to show that it has locus standi in a suit, in other words that it can participate in an application or action, a party has to also show that it has a direct and substantial interest in the subject matter and in the outcome of the application[62];

 

  1. this means that a party needs to establish that it may be prejudicially affected by the judgment of the Court;[63]

 

  1. a party who can show that he has a direct interest in a matter and not merely the interest which all citizens have, would have locus standi, despite the absence of a pecuniary interest.[64]

 

[53]      Counsel advised the court that the South African Courts have been reluctant to specify a sufficiency of interest and that they have concluded, rather, that the test was a factual one, dependent upon the facts of every matter, based on the general rule that ‘it is for the party instituting proceedings to allege and prove the sufficiency of interest.[65] This approach found favour in Uvanga v Steenkamp 2016 (2) NR 465 (HC) when Masuku J stated:

 

‘I also accept without demur the correctness of the defendant's submission that the general rule is that the party instituting proceedings, otherwise referred to as the dominus litis, should allege and prove that he or she has the necessary locus standi in the manner described above. The sufficiency of the interest, it must also be accepted, is a matter that must be determined on a case by case basis, and is not the laws of the Medes and the Persians so to speak. Whether the interest is sufficient in a case will obviously turn on the facts of the case under scrutiny.’[66]

 

[54]      Importantly, so the argument ran further, the rules of standing should, however, not be used to deny citizens from obtaining clarity about their rights.[67] With constitutional issues (like the need to protect the environment), South African Courts would be quicker to vest an Association with locus standi.[68] It was thus submitted that a similar approach would also sit comfortably with the Namibian Constitution.

 

[55]      Counsel then addressed the issues of capacity and sufficient interest.  

 

[56]      In respect of the first applicant it was pointed out that the CNFA is clearly a legal persona capable of suing or being sued in its own name[69] and that in the light of the resolutions,[70] speculation about internal compliance with clause 9 of its constitution is just that. The second applicant has no express provision in its constitution that it is a legal persona capable of suing and being sued.[71] Its constitution does, however, make it clear that it was created ‘ …to protect and further the interests of the Namibian hake fishing industry ... empowered to deal with all matter to achieve these objectives.’ [72] It was further pointed out that provision is made for balance sheets, statements of income and expenditure, audited financials and the appointment of auditors [73] and that these provisions clearly demonstrate independent perpetual succession. It was thus submitted that in the light of the principles referred to, the NHA has legal capacity. The third applicant’s constitution clearly confirms its distinct and separate legal entity and its right to hold and alienate property and that it may be involved in actions or suits,[74] so the argument ran further It also contains extensive provisions dealing with the acquisition, disposal and letting of property[75] and that the MTA thus also has legal capacity.  

 

[57]      In regard to the sufficiency of interest it was again pointed out that the relied upon authorities reveal that all the applicants had to establish was sufficient interest and that it had to be taken into account that this was an elastic concept, to be applied with reference to the facts of each case which also does not necessarily involve monetary considerations. It was emphasised that when it comes to environmental matters, a sufficiency of interest may be more easily established.

 

[58]      Counsel then homed in on the perceived essence of NMP’s ‘concerns’ expressed on the basis that: ‘The Applicants have not - through the adducing of admissible evidence - established that they are affected by the granting of ML 170 or the ECC for that matter, or that they have a sufficient interest in the subject matter of this application.    The Applicants have also not established damage or injury, or a reasonable apprehension of harm’.[76] It was understood that the reference to ‘admissible evidence’ was meant to refer to the complaint that Mr Amukwa is not sufficiently qualified as an expert on the risks posed to the fishing industry by dredge phosphate mining.

 

[59]      The so-called ‘concern’ was then countered with reference to the following submissions, namely :

 

  1. that it was undisputable, as a starting point, that the fishing industry is dependent upon a safe and sustainable marine eco system;[77]

 

  1. that it is equally undisputable that the fishing industry (largely represented by the Applicants) is a huge industry, a great contributor to employment and the Namibian economy and, consequently, that its continued sustainability is a matter of great public interest and importance;

 

  1. as revealed by the numerous expert reports and the debates and disclosures at the public meetings, that there is no certainty that phosphate mining at sea will not have any adverse effects upon the fishing industry;[78]

 

  1. that since inception and right through the entire process of public consultation and involvement, NMP recognised one or more of the Applicants as interested parties who could be affected by its contemplated mining operations, with whom it also exchanged reports and information and, throughout the process, acted with acute awareness of the concerns arising from possible marine damage.  For it, now, to claim that the Applicants have insufficient interest, flies in the face of its very own recognition, throughout the process, of such interest, even more so in the light of its acceptance that the Applicants had actively participated in the process which led up to the granting of the ECC to NMP;[79]

 

  1. that even NMP, itself, accepts that there is likely to be some impact (referred to as ‘minimal impact’) arising from its operations, to the Namibian shelf eco- system and there can, therefore, be no doubt about the fact that there would be some impact which, in turn, could influence the interests of the Applicants;[80]

 

  1. that the interests of the fishing industry are specifically recognised in Section 52(1)(f) of the Minerals Act;

 

  1. that monkfish are found within the mining area;[81]

 

 

  1. the Environmental Commissioner found the final EIA to be inadequate due to insufficient consultation with the fishing industry in particular;[82]

 

  1. in its final EIA, NMP contemplates a ‘no go zone’ over the active target mining area.[83]

 

[60]      In response to the argument mustered on behalf of NMP that the Applicants had to demonstrate that they will suffer prejudice [84] it was suggested that this argument puts the onus too high as environmental issues are at stake, which is an issue recognised in the Constitution [85] and where a lower threshhold would be required in matters of this nature. This was even more so where most of the views expressed can only be tested over time and, to that extent, the risk remains uncertain.

 

[61]      Finally it was pointed out on this score that if the Applicants had no interest, then the MFMR, would likewise be without interest, after all, the same interests where shared by these parties and where, despite the Ministry’s statutory role, rights and obligations, there could be no doubt that that the MFMR would, in any event, have had sufficient interest to oppose the application. To that extent, therefore, and as there is an overlapping of interest, there could be no question that the Applicants did not have sufficient interest. 

 

[62]      Applicants’ counsel then addressed the issue of authority and that NMP had raised this objection firstly on the basis that there was insufficient evidence to show that Mr Amukwa was, in fact, duly authorised and, secondly, that the ‘internal processes’ of the Associations (the First to Third Applicants) had been duly followed.

 

[63]      In this regard it was firstly pointed out that Mr Amukwa had initially stated that he was duly authorised by all the Applicants to institute the application [86] and once challenged he had replied with the relevant resolutions confirming his authority.[87] These resolutions so it was submitted may be received (in accordance with the legal principles) and that, in any event, in the absence of ‘evidence’ (as opposed to ‘speculation’), NMP has not raised a genuine factual dispute about the internal processes. After all, a ‘bald denial’ or ‘pouring scorn’ over an opponent’s version, does not give rise to a bona fide factual dispute.[88] Where the issue is raised in the form of a bare denial, a Court would easily conclude that authority is established, even from the bare minimum of evidence. [89] This was the applicable approach as adopted in Namibia where:             

 

‘[52]     It is now settled that in order to invoke the principle that a party whose authority is challenged must provide proof of authority, the trigger-challenge must be a strong one. It is not any challenge: Otherwise motion proceedings will become a hotbed for the most spurious challenges to authority that will only protract litigation to no end. This principle is firmly settled in our practice.

 

[53]      It is now trite that the applicant need do no more in the founding papers than allege that authorisation has been duly granted. Where that is alleged, it is open to the respondent to challenge the averments regarding authorisation. When the challenge to the authority is a weak one, a minimum of evidence will suffice to establish such authority.’

 

[64]      It was further argued that where authority is challenged, an applicant is allowed to cure same by allowing a supplementary affidavit and that unauthorised proceedings by a person who wrongly believed that he had the authority to act may be ratified with retrospective effect. [90] It was thus submitted that in these circumstances ‘authority’ has been demonstrated. 

 

[65]      During oral argument Mr Marais reiterated that the trigger challenge to authority must be a strong one and where a bald denial was not enough. As NMP’s criticised without knowledge its trigger challenge was weak. That CNFA has legal capacity could be established with reference to all the provisions in its constitution. Although this aspect did not expressly appear from NHA’s constitution this could be inferred from its objects which are to further the interests of the Namibian Hake Fishing Industry and for which purpose the association would be empowered to deal with all matters to achieve these objects. He referred to page 65 of the record from which it appeared that duly audited balance sheets and statements of annual income and expenditure had to be obtained, that the NHA was to be financed through member subscriptions – p 70 – and that its funds would have to be banked – p71. The NHA was thus an entity that should be recognised before the court. As far as the MTA was concerned it appeared expressly from p76 of the record - par 3.1 of its constitution - that it was a separate and distinct legal entity with all powers necessary to further the objects of the MTA as set out at p79 – para 6 of its constitution. The MTA thus had legal capacity.

 

[66]      On the applicants’ ‘sufficiency of interest’ he pointed out that there was no numerus clausus as far as relevant considerations were concerned and that this issue was decided on a case by case basis and that a more generous approach should be followed in this regard. He invited the Court to also look at interest in the context of the applicable legislation. He then referred the Court to section 52(1)(f) of the Minerals (Prospecting and Mining) Act of 1992[91] which imposed duties on mineral licence holders not to exercise their rights in any way which will interfere with fishing and marine navigation without prior permission. He thus submitted that this act already makes it clear- and gives recognition of the constitutional value to protect the environment as envisaged in Article 95(l) of the Constitution which obliges the state to maintain the ecosystem, but when one interferes with habitat one destroys species. He then referred to a number of further factors which demonstrated that the applicants did not merely have a negligible interest as was contended for on behalf of NMP. On the contrary the fishing industry had a direct and substantial interest in protecting the resource. Walvis Bay is a fishing town. He pointed out that it appeared from the EIA what primary impacts of phosphate mining had been provisionally identified – ie. loss of habitat, effects on marine benthic fauna, impairment of food chain functionality and the creation of a new habitat, colonised by as yet unknown fauna.[92]

 

[67]      There would also be secondary impacts of the proposed activity such as the modification of the water column, primary turbidity, the reduction of light penetration, change in oxygen levels and possible release of hydrogen sulphide, H2S, into the water column.[93]

 

[68]      Importantly, as far as the fishing industry was concerned, the proposed mining activities would cause the removal of typical spawning substrate, the removal of foraging substrate, interference with fish behaviour and the associated implications for the commercial fishing industry. Obviously there would also be increased marine traffic near Walvis Bay.[94] The fishing industry was a cornerstone of Walvis Bay where 70% of the industries located in the town where directly or indirectly dependent on the fishing industry.[95]

 

[69]      All this, according to Mr Marais clearly impacted on fishing and the fishing industry if one would also take into account the potential impacts that could result from the proposed mining activities and where the dredging operations would potentially cover a large portion of the historical monk trawling grounds, where 5.03 % of the hake trawling catch, 1.08 of the horse mackerel midwater trawl catch and 19.75% of the monk trawl catch was likely to be affected. All this would result in the displacement of fish due to loss of habitat and where the ecosystem would clearly be negatively affected. The dredge mining activities in the mining area would cause the destruction of the substrate with serious impact on the ecosystem. The fisheries specialist study thus revealed direct and significant impact, which includes the disturbance of habitat with a direct effect on historic fishing activities. If all this would be taken into account, so the argument ran further, it could not seriously be contended that the applicants have no substantial and direct interest in this matter or that they would not be prejudicially affected by the proposed mining acitvities. Finally, so it was forcefully argued in conclusion, the fact that the the proposed mining activities would also create certain no-go-zones, closed for fishing activities, demonstrated prejudice, the applicants’ real and substantial interest in the subject matter of the litigation and thus their locus standi.

 

Resolution: locus standi and authority

 

[70]      In accordance with the principles affirmed by the Supreme Court in Council of the Itireleng Village Community and Another v Madi and Others it becomes clear that the question of legal standing is in a sense procedural, but it also bears on substance. It concerns the sufficiency and directness of interest in the proceedings which warrants a party's title to prosecute a claim. The onus is upon a party instituting proceedings to establish legal standing. This not only concerns establishing sufficiency and directness of interest but also that it is the rights-bearing entity or acting on the authority of that entity or has acquired the rights.[96] 

 

[71]      In line with this formulation I will thus commence to consider first whether or not the applicants have established ‘sufficiency and directness of interest’ in the proceedings which they have launched, which ‘warrants their title’ to prosecute this application and then, secondly, whether or not the respective entities and the persons acting on their behalf have the necessary authority to prosecute the application.

 

[72]      If one then has regard to the broader/overall setting against which the Confederation of Fishing Industries, the Hake Association, the Midwater Trawling Association and a fishing company oppose the proposed marine phosphate mining activities of the sixth respondent, for which purpose they clearly have instituted these proceedings, it appears that these applicants either directly or indirectly engage in fishing or are involved in the fishing industry in some or other respect. These fishing activities occur- and the respective interests are all related to fishing activities which are carried out in the Atlantic Ocean off the Namibian coast, also in the area in which the proposed marine phosphate mining activities are to occur.

 

[73]      It is also not in dispute that the proposed mining activities - to a certain degree at least - will impact on fishing activities. In this regard it is taken into account that even Mr Tötemeyer has, fairly, accepted that, as a general proposition, ‘mining activities always cause some impact, disturbance and damage’ – a proposition I agree with – and which obviously applies with equal force to marine mining activities.

 

[74]      The interests of the fishing industry in this sphere are also recognised by the legislature as is underscored by section 52(1)(f) of the Minerals (Prospecting and Mining) Act 33 of 1992, which provides that

 

‘(1)       The holder of a mineral licence shall not exercise any rights conferred upon such holder by this Act or under any terms and conditions of such mineral licence-

……

 

(f)        which in any way will interfere with fishing or marine navigation, without the prior permission of the Minister granted, upon an application to the Minister in such form as may be determined in writing by the Commissioner, by notice in writing and subject to such conditions as may be specified in such notice.’

 

[75]      It is thus not surprising – and it is common cause that the applicants - as active participants - where recognised by NMP throughout the public consultation process - which spanned over many years – as interested parties - who could be affected by the contemplated mining activities and with whom reports and information was/were exchanged. In this regard NMP has acknowledged that this was so, at least for the purposes of the EIA – EMPR process.

 

[76]      Importantly it has to be kept in mind here that - particularly through this participation – ie. also through the stakeholder participation of the applicants - NMP was eventually able to obtain the ECC that was later set aside.

 

[77]      There is thus substance in the submission that NMP’s stance that the applicants have insufficient interest, ‘ … flies in the face of its very own …’ – and I might add prolonged – recognition and acceptance – ‘ … in the process that led up to the granting of the ECC to NMP’.

 

[78]      From a mere consideration of these aspects it already appears generally that the applicants certainly must have some interest in the proceedings they have launched. The question that remains is thus whether such interest is sufficiently direct and which thus warrants the applicants' title to prosecute their claims. NMP’s stance clearly is that this is not so and that the traditional legal approach to this issue should be followed.

 

[79]      It is at this juncture that it thus becomes relevant to consider what is to be made of the arguments raised on behalf of the applicants that, in matters of this nature, the courts should be quicker to vest litigants with locus standi.

 

[80]      Reliance was placed in this regard on McCarthy and Others v Constantia Property Owners' Association and Others 1999 (4) SA 847 (C) where Davis J dealt with the issue as follows :

 

‘The divide between the parties turns on the ambit and scope of the principle of locus standi. The question arises as to whether the private law context within which this dispute arises precludes an extension to an adaptation of the public law concept of locus standi. Mr Rose-Innes submitted that applicants are not busybodies; each applicant is a member of first respondent and is a resident of Constantia. They clearly have a direct and substantial interest in ensuring that the primary asset of the association, the asset which allows for a protection of the environment, must be dealt with in a responsible fashion. Were the servitude in favour of first respondent to be breached fundamentally it could have a detrimental effect upon the rustic character of the suburb, the preservation of which is the major objective of first respondent.

 

The issue of locus standi can no longer be examined in isolation from s 38 of the final Constitution (the Constitution of the Republic of South Africa Act 108 of 1996), which mandates a broad approach to standing for the purpose of enforcement of the rights entrenched in chap 2 of the Constitution. The section provides:

 

            'Anyone listed in this section has the right to approach a competent court, alleging that the right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are –

 

            (a)        anyone acting in their own interest;

            (b)        anyone acting on behalf of another person who cannot act in their own name;

            (c)        anyone acting as a member of, or in the interest of, a group or class of persons;

            (d)        anyone acting in the public interest; and

            (e)        an association acting in the interest of its members.'

 

This provision has radically extended the common-law rule of standing. See Chaskalson et al Constitutional Law of South Africa at 8-5; Van Huyssteen and Others NNO v Minister of Environmental Affairs and Tourism and Others 1996 (1) SA 283 (C) at 300-1. Were the provisions of s 38 to apply to the dispute in the present case, applicants would have the necessary locus standi. While s 29 of the Constitution, namely the right to a protected environment, was not relied upon in the present case and indeed may not be directly applicable to such a dispute, the question arises whether it and the provisions of s 38 have relevance to this dispute.

 

Section 39 of the Constitution provides that, when interpreting any legislation and when developing the common law or customary law, every court or tribunal or forum must promote the spirit, purport and object for the Bill of Rights. As Kentridge AJ stated in Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) at 885G-H   A  (1996 (5) BCLR 658 at 691E-F) this provision 'ensures that the values embodied in chap 3 (of the interim Constitution, the Constitution of the Republic of South Africa Act 200 of 1993) permeate the common law in all its aspects including private litigation'. Hefer JA adopted the approach in National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA) at 1216 that s 39(2) mandates a court to ensure that common-law principles are compatible with the Constitution.

 

In the context of the present case the Constitution clearly envisages a generous regime of access to courts. In addition it purports to protect the environment. Section 8(2) provides that the provision in the Bill of Rights binds all natural and juristic persons, if and to the extent that it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. Whatever the interpretation of this opaque phrase, it is clear that its intention was to extend the scope of application of the Bill of Rights. In short, the Bill of Rights was not only designed to introduce the culture of justification in respect of public law but intended to ensure that the exercise of private power should similarly be justified. Accordingly, the carefully constructed but artificial divide between public and private law which might have dominated our law prior to the constitutional enterprise can no longer be sustained in an uncritical fashion and hence unquestioned application.

 

For this reason the attempt to restrict the implications of the dictum in Waks (supra)[97] and Pillay's case[98] supra to pure exercises of public power is no longer sustainable within our law. Accordingly, I consider that applicants who have come to Court to protect the environmental fabric of their suburb have the necessary locus standi.’[99]

 

[81]      On a consideration of this dictum it immediately becomes apparent that also in this case ‘ … the divide between the parties turns on the ambit and scope of the principle of locus standi…’. It is also without doubt that also in our jurisdiction ‘ … the issue of locus standi can no longer be examined in isolation from … the Constitution’ - (here the Constitution of the Republic of Namibia).

 

[82]      The constitutional provisions however seem to differ on face value as it is clear that the Namibian Constitution does not have a verbatim equivalent to section 39 of the South African Constitution.

 

[83]      The relevant aspects of the South African Constitution are that ‘ … anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights and that the persons who may do so are –(a)   anyone acting in their own interest; (c)     anyone acting as a member of, or in the interest of, a group or class of persons; or (e)     an association acting in the interest of its members.'

 

[84]      It does not take much to appreciate that if Namibia would have similar provisions in its Constitution, the applicants would, for similar reasons, have a strong case to obtain the acknowledgement that they would be clothed with the necessary locus standi to bring this application.

 

[85]      The right to approach a court of law is, in the first instance an access to justice right. The access to justice principle and consequent rights are upheld and applied in Namibia.[100]

 

[86]      The Supreme Court has expressly stated that if access to justice would be denied in unjustifiable circumstances that would amount to a breach of Article 12, which guarantees that right.[101] The right is thus enshrined in Article 12.

 

[87]      It would thus seem that also the Namibian Constitution, as interpreted by the Supreme Court, envisages a generous regime of access to courts and has expanded the common law principles in this regard.

 

[88]      The only directly relevant article is Article 12(1)(a) which provides

 

‘(1)(a) In the determination of their civil rights and obligations or any criminal charges against them, all persons shall be entitled to a fair and public hearing by an independent, impartial and competent Court or Tribunal established by law: provided that such Court or Tribunal may exclude the press and/or the public from all or any part of the trial for reasons of morals, the public order or national security, as is necessary in a democratic society.’ (emphasis added).

 

[89]      As far as the enforcement of fundamental rights is concerned, the right of access to enforce and protect such rights, is contained in Article 25(2). Again the terminology employed is instructive as the article ‘entitles’ all persons, who claim that a fundamental right or freedom guaranteed by the Constitution has been infringed or threatened, ‘shall be entitled’ to approach a competent Court to enforce or protect such a right or freedom, for as long as such ‘persons’ feel ‘aggrieved’.[102]

 

[90]      It is clear that the applicants feel aggrieved that their fishing rights and interests in the fishing industry are threatened. The case they have brought entails environmental issues. Such issues are recognised in the Constitution and they are to be promoted and maintained by the State, as it did through the enactment of the here relevant 'EM Act 7 of 2007' and even the Minerals Act.[103]

 

[91]      Against such background the reference to ‘all persons’ or ‘aggrieved persons’ – surely to be interpreted to mean ‘all aggrieved persons’ - as used in the articles 12(1)(a) and 25(2) - on a purposive and liberal interpretation - is obviously also not to be limited only to natural persons acting in their own interests but must be understood to refer also to juristic persons and/or entities acting as a member or members of, or in the interest of, a group or class of persons; or to an association acting in the interest of its members', as also such entities may ‘feel aggrieved’ that their/its fundamental rights or freedoms, which clearly may also attach to such entities, may have been infringed, or may be threatened.

 

[92]      In my view it can thus safely be concluded that the Namibian Constitution envisages a generous regime of access to courts’ and. ‘ … mandates a broad approach to standing for the purpose of the enforcement of … rights …’, or in the words of O’Regan AJA : ‘ … The rules of standing should not ordinarily operate to prevent citizens from obtaining legal clarity as to their legal entitlements.’[104]

 

[93]      All this goes already goes a long way to afford the applicants the locus standi they seek.

 

[94]      In this endeavour they have also advanced a number of further factors, which on their submission strengthens this facet of their case. These factors were argued as follows:

 

‘a)        it is equally undisputable that the fishing industry (largely represented by the Applicants) is a huge industry, a great contributor to employment and the Namibian economy and, consequently, that its continued sustainability is a matter of great public interest and importance;

 

b)         as revealed by the numerous expert reports and the debates and disclosures at the public meetings, there is no certainty that phosphate mining at sea will not have any adverse effects upon the fishing industry; [105]

 

c)         even NMP, itself, accepts that there is likely to be some impact (referred to as minimal impact) arising from its operations, to the Namibian shelf eco system and there can, therefore, be no doubt about the fact that there would be some impact which, in turn, could influence the interests of the Applicants; [106]

 

d)         the Environmental Commissioner found the final EIA to be inadequate due to insufficient consultation with the fishing industry in particular;  [107]

 

e)         in its final EIA, NMP contemplates a no go zone over the active target mining area.     [108]

 

  1. NMP seems to suggest that the Applicants had to demonstrate that they will suffer prejudice. [109]

 

g)         That, we submit, puts the onus too high. We are concerned here with an environmental issue.    It is an issue recognised in the Constitution.[110] A lower threshold may be required in matters of this nature.   Even more so where most of the views expressed could only be tested over time and, to that extent, the risk remains uncertain.

 

h)         If the Applicants had no interest, then the Ministry of Fisheries and Marine Resources, would likewise be without interest.   (After all, they share the same interests).  Despite the Ministry’s statutory role, rights and obligations, there can be no doubt that it would, in any event, have had sufficient interest to oppose the application.     To that extent, therefore, there is an overlapping of interest and, we submit, no question about whether or not the Applicants had sufficient interest.’

 

[95]      In the final equation it was the applicants reliance on the principle[111] that is to be applied in the approach to disputed facts in motion proceedings, the Plascon-Evans approach, and in terms of which a Court is specifically enjoined to consider the Respondent’s evidence in conjunction with that of the Applicant (not in dispute) [112] - and also the argument - mustered particularly in response to the central submission advanced on behalf of the NMP to the effect that : ‘Any suggestion that the Applicants’ interests will be affected, has conclusively been gainsaid by the expert evidence put up by NMP, which shows no conceivable prejudice to the Applicants…’.  [113] - persuade me that the applicants’ interests are/will be sufficiently directly and prejudicially affected by the granting of ML 170, the ECC that was obtained in this regard and the consequential contemplated marine mining activities that were to follow which afford them the necessary locus standi and thus the ‘title to prosecute their claims’ in this instance. It will be appreciated that these claims do not only entail the immediate declaratory relief sought with its consequences, but which relief, as a consequence, is also of wider impact, as far as the relevant environmental considerations and impacts are concerned, and, where the applicants also seek to protect ‘the environmental fabric’ of the traditional fishing grounds in which they operate. These findings are in the final instance materially underscored by the argument that also NMP’s own papers demonstrate this interest, an argument I uphold also with reference to the further aspects/factors adduced in this regard.  

 

[96]      These further aspects/factors are that :

 

‘a)        on 1 September 2011 the project background information document issued for consideration by potential stakeholders (including the Applicants) already revealed that the secondary impacts could include:

 

•           removal of (fish) spawning substraight;

•           removal of (fish) foraging substraight; 

•           interference with fish behaviour; 

•           associated implications for the commercial fishing industry;[114]

 

  1. in the final report it is recognised that the contemplated mining would take place right in the heart of the fishing production area:  

 

It is an important centre of the marine biodiversity and marine food production.   Its distinctive bathymetry, hydrography, chemistry and trophodynamics combine to make it one of the most productive ocean areas in the world.   This high level of primary productivity of the Benguela supports an important global (and local) reservoir of biodiversity and biomass of zooplankton, fish, sea birds and marine mammals, ...     These living and non-living resources are of economic and strategic importance to Namibia[115]

 

  1. in the final report specialist consultant Japp stated the following: 

 

the fishing sectors will not be able to operate in certain areas due to 1) actual mining operations due to dredging operations and vessel activities, 2) associated sediment plumes, 3) exclusion zones around the dredging site and 4) increased levels of maritime traffic associated with the dredging operation

 

the impact will result in the redistribution and/or displacement of hake, monk, horse mackerel, sole, orange roughy, bearded goby populations and small pelagics because of 1) actual recovery activities due to dredging operations and vessel activities, 2) habitat disturbances and the removal of substraight and 3) sediment plumes turbitiy).[116] (counsels’ emphasis);

 

there is an obvious impact in the immediate area of the mining which is serious and likely to be permanent (or at least more than 15 years).[117] (counsels’ emphasis)

 

we conclude that the impact on Namibian fisheries will vary depending on the sector.   Overall the significance of impact on the fishing sector is considered to be negative and of medium to low significance ... The dredging will potentially cover a significant portion of the historical monk trawling grounds. ... 6.34% of the monk trawling fisheries will be impacted (with a displacement and mortality of the resource in the actual area mined) ... The impact of the proposed mining on the broader eco system, in particular the fish fauna will on average be moderate.  The mining will displace fish resources and essential habitat occupied by these resources (such as monk, gobies, hake and others) ...   Significant alteration of the eco system characteristics only in the immediate target mining sites is expected.   Any expansion of the proposed dredging will significantly alter the potential to impact on the broader eco system.[118] (counsels’ emphasis)

           

  1. in Chapter 5 of the final report, it is demonstrated (and, apparently, accepted) that 6.34% of the monk trawl fisheries take place within the mining area.   (This is not an insignificant percentage); [119]

 

  1. in the same Section the following summary reflects significant real impact:  

 

The Fisheries Specialist Study (Appendix 1c) lists the following potential impacts resulting from the mining operations on the fishing industry:     

 

•           The dredging operations will potentially cover a large portion of the historical monk trawling grounds, as well as small proportions of the hake and horse mackerel fisheries.

 

•           Commercial fishing operations are not expected to be directly impacted in a broader area extending outside the MLA to within a 25 km zone. 

 

•           Indirect impacts will primarily relate to dredger vessel movements and normal trawling patters with vessels expected to maintain a safe working distance from the MLA as well as having to trawl along tracks that may vary from the historical effort in the zone. 

 

•           Based on recent historical catch and effort data in the MLA and Zone 1, 5.03% of hake trawl catch, 1.08% of horse mackerel midwater trawl catch and 19.75% of monk trawl catch is likely to be affected.  (Note this does not imply that this proportion of catch will be lost but that the fishery in this area will in some way have to adjust normal fishing operations).

 

•           The mining will result in displacement of fish resources away from the disturbed area and loss of essential habitat by these resources (such as monk, gobles, hake and others).  

 

•           Significant alteration of the eco system characteristics only in the immediate target mining sites is expected (although the broader effects of the mining on the eco system in the region have not yet been determined). 

 

•           In the mined area, there will be a serious impact through the permanent physical removal and destruction of substrate.

 

•           With regard to biodiversity, the impact in the immediate mining area will be severe and will result in loss of marine flora and fauna.           [120]

 

  1. in Chapter 7 the impact is described as a certainty: 

 

Fishing effort will certainly be displaced for the full term of the dredging inside the MLA and around SP-1 in the first phase ... Fishing vessel operations and maritime traffic are however expected to have to alter normal operations and/or transits ... Demersal fish species live on the sea bottom and will be displaced by loss of habitat through the direct removal of substraight[121]

 

  1. in the same Section it is again stated that the fishing operations will be affected in the MLA and beyond to within a 25 kms boundary of the actual target dredging sites, that these effects would be long term and that significant impacts will occur for the duration of dredging in the MLA (with) moderate effects expected to occur in the long term once dredging ceases (up to 20 years). [122] (counsels’ emphasis);

 

  1. the same report confirms that the fishing industries would be restricted by the no go zone created by the mining activities. [123]

 

  1. It follows from the aforegoing that:

 

  1. the Sixth Respondent cannot possibly maintain that there would be no significant impact on the marine environment or that such impact will not impact the commercial fishing industry in any detrimental way; 

 

  1. on the Sixth Respondent’s own evidence, a very real, significant and ongoing interest is established for the fishing industry; …’.

 

[97]      But these findings are not the end of the matter as the first to third applicants’ authority to bring this application has also been questioned and where it is clear that it was also incumbent on these applicants to have established that the instituted proceedings were sufficiently authorised by these respective ‘rights-bearing entities’. The authority of the fourth applicant to litigate is no longer in question.

 

[98]      The first to third applicants -  the Confederation of Fishing Industries, the Hake Association, the Midwater Trawling Association - are all associations. An association can sue or be sued as a universitas in terms of the common law if it has the capacity to acquire rights, has the power to own property and has perpetual existence.[124] In order to establish whether or not an association has the power to sue regard is to be had to its constitution in terms of which such power may be expressly conferred or from which such power may be implied. In this regard consideration is to be given to the activities, aims and objectives of an association.[125] Even if an Association’s Constitution contains no indication of the right to sue, a Court may, therefore, having regard to its activities, aims and objectives infer the power to sue as inherent in the express powers given to the office bearers.[126] A written Constitution is therefore desirable but not essential to establish whether an Association complies with the requirements.[127]

 

[99]      It was in this regard thus contended in respect of these applicants that – in the first instance – the first applicant is clearly an entity capable of suing or being sued, an aspect clearly apparent from article 2 of its constitution. The constitution – article 5 - states further that the association has to protect and promote the interests of its members, as one of its objectives, and that it thus can take any action ‘necessary or conducive to the attainment of its objectives’. The introductory part of the relevant resolution taken in regard to the present proceedings then reads:

 

RESOLUTION OF CONFEDERATION OF NAMIBIA FISHING ASSOCIATIONS

 

SPECIAL RESOLUTION PASSED BY THE CONFEDERATION OF NAMIBIA FISHING ASSOCIATIONS ON 3 SEPTEMBER 2018 AT WALVIS BAY

 

WHEREAS     1.         At all relevant times MR MATTI AMUKWA the Chairperson of the First, Second and Third Applicants was authorised to act on behalf of CONFEDERATION OF NAMIBIAN FISHING ASSOCIATIONS, NAMIBIAN HAKE ASSOCIATION and MIDWATER TRAWLING ASSOCIATION in case number: HC-MD-CIV-MOT-REV-2016/00335 to institute an application in the High Court initially to seek interim relief under part A (which has since been abandoned) and under part B to seek the following orders:’

 

[100]   The second applicant, the Namibian Hake Association, the NHA, has no express provision in its constitution to the effect that it is a legal person capable of suing and being sued. The association was however created ‘… to protect and further the interests of the Namibian hake fishing industry ... empowered to deal with all matter to achieve these objectives…’. [128] Its constitution, per article 6.1.2 however provides for balance sheets, statements of income and expenditure, audited financials and the appointment of auditors. [129] Further provisions clearly demonstrate independent perpetual succession.[130]

 

[101]   The third applicant in turn, the Midwater Trawling Association, the ‘MTA’, as per its constitution, clearly is also to be regarded as a legal entity with legal capacity:

 

            ‘3.        LEGAL STATUS

 

3.1       The Association is and shall continue to be a distinct and separate legal entity and body, with the power to acquire, to hold and to alienate property of every description whatsoever, and with the capacity to acquire rights and obligations and having perpetual succession.

 

3.2       All actions or suits, proceedings at law or any arbitration shall be brought by or against the Association, in the name of the Association, and shall be represented by any person or persons authorised by the committee to act on behalf of the Association and to sign all such documents and to take all such steps as may be necessary in connection with any such proceedings.’

 

[102]   It can thus safely be concluded that all these applicants, in their own right, could thus have instituted these proceedings. They did however, seemingly, elect to do so through the Chairperson of the CNFA. His authority was also challenged by NMP.

 

[103]   In a nutshell it was submitted by counsel for NMP in this regard that the internal processes of the CNFA had not been complied with which require a resolution to be in place, taken at a duly and properly convened meeting of the CNFA. No evidence was contained in the founding- and replying papers that such meeting had taken place. Accordingly it had not been proved that Mr Amukwa had been duly authorised to institute these proceedings for and on behalf the first applicant.

 

[104]   These submission were countered with the argument that due to the nature of the challenge the applicants’ where entitled to respond with ‘a bare minimum of evidence’ entitling them to prove the requisite authority simply though the production of the relevant resolutions.

 

[105]   This stance was adopted on the authority of Otjozondu Mining (Pty) Ltd v Purity Manganese (Pty) Ltd 2011 (1) NR 298 (HC) where the Court had stated that :

­­­­­­­­­­­­­­­­­­­­­

‘[52]     It is now settled that in order to invoke the principle that a party whose authority is challenged must provide proof of authority, the trigger-challenge must be a strong one. It is not any challenge: Otherwise motion proceedings will become a hotbed for the most spurious challenges to authority that will only protract litigation to no end. This principle is firmly settled in our practice. It was stated as follows in Scott and Others v Hanekom and Others 1980 (3) SA 1182 (C) at 1190E – G:

           

'In cases in which the respondent in motion proceedings has put the authority of the applicant to bring proceedings in issue, the Courts have attached considerable importance to the failure of the respondent to offer any evidence at all to suggest that the applicant is not properly before the Court, holding in such circumstances that a minimum of evidence will be required from the applicant. This approach is adopted despite the fact that the question of the existence of authority is often peculiarly within the knowledge of the applicant and not his opponent. A fortiori is this approach appropriate in a case where the respondent has equal access to the true facts.' [Own emphasis added and footnotes omitted.]

 

[53]      It is now trite that the applicant need do no more in the founding papers than allege that authorisation has been duly granted. Where that is alleged, it is open to the respondent to challenge the averments regarding authorisation. When the challenge to the authority is a weak one, a minimum of evidence will suffice to establish such authority: Tattersall and Another v Nedcor Bank Ltd 1995 (3) SA 222 (A) at 228J – 229A.’

 

[106]   It would thus appear that it will have to be determined whether it is indeed so that NMP’s challenge is a weak one and whether, in the circumstances, the response that was elicited to the challenge, was sufficient.

 

[107]   Mr Amukwa pleaded this entitlement in the first instance as follows:

 

            ‘2.        I have been duly authorised by all the applicants collectively and individually to institute this application.  I am therefore deposing to this affidavit not only to institute the application as duly authorised, but also to serve as the witness in this application for and on behalf of each and every applicant individually.  I have therefore been duly authorised to institute the application and depose to the affidavit for each of the applicants separately.’

 

[108]   The challenge to his authority and that of the CNFA was formulated as follows:

 

            ‘26.      The deponent purports to act on behalf of “all the applicants collectively and individually” and alleges that he has been “duly authorised” by all the applicants.  Ex facie paragraph 1, he is the chairperson of the 1st applicant.  However, there is no further content in paragraph 2 demonstrating (be it by means of an attached extract from the resolution or any other document for that matter) the alleged authority relied upon by the deponent, Mr Amukwa.  It is to be noted that the 2nd applicant is cited as an association as well as the 3rd applicant.  The fourth applicant is cited as a company.  For reasons addressed elsewhere, it is disputed that the applicants have the necessary locus standi to initiate this application and further that the deponent to the founding papers is duly authorised to initiate the application for and on behalf of the second, third and fourth applicants’

 

And

 

‘31.      In reference to “MA2”, clause 11.2.1 provides that the chairman may act as a representative of the 1st applicant (“CNFA”) and as spokesperson in accordance with “guidelines determined by the members in general meeting”.  There is no indication in the founding papers that any such guidelines have in fact been determined, and it is accordingly also unclear as to whether or not the deponent is indeed duly authorised to act as a representative for the CNFA (this being thus denied by NMP) under such circumstances.  In addition, clause 9 deals with meetings of the CNFA.  There is similarly no indication in the founding papers that the provisions of clause 9 were complied with in respect of any resolution that may have been taken by the CNFA for the purposes of initiating the present proceedings against NMP.  I point out that there is no general power accorded to the chairperson of the CNFA to take any steps that may be necessary for the purposes of initiating proceedings.  The constitution is silent on this score.  A proper resolution thus requires to be in place, taken at a duly and properly convened meeting of the CNFA.  There is no evidence that any such meeting has taken place, and it is also not so alleged in the founding papers. NMP consequently disputes that the proceedings are properly authorised in respect of the 1st applicant and further disputes that the deponent is duly authorised to initiate these proceedings for and on behalf of the 1st applicant.’

 

[109]   NMP’s challenge to the Namibian Hake Association’s authority was formulated thus:

 

‘39.      With reference to “MA3”, there is no evidence whatsoever put up in the founding papers demonstrating that any decision-making, compliant with the provisions of the constitution in question, took place authorising the initiation of this application against NMP, or any of the respondents for that matter, and there is similarly no such documentation in respect of any meeting, duly convened in terms of that constitution, authorising the deponent to initiate the application on behalf of the said respondent.  The deponent’s authority is – as stated  - denied.

 

40.       I point out that the relevant constitution contains strict provisions regarding the convening of meetings and the taking of decisions in terms of the relevant constitution.  Again, I emphasize no evidence is put up by the applicants that the requirements of the provisions of this constitution have in fact been met.  I further point to paragraph 7 which deals with voting.  Again, strict provisions have been set up in terms of the constitution and there is no evidence that these provisions have been complied with.’

 

And in regard to the Midwater Trawling Association the following was pointed out:

 

            ‘43.      In respect of Annexure MA4, I point out that in respect of paragraph 6.10, the association only has the power to take court action for the “recovery of any amounts due to the association or to compel the fulfilment of any obligations in its favour, and also to defend any proceedings that may be instituted against it”. The powers of the association, accordingly, do not include (if regard is had to paragraph 6) to initiate proceedings of the present nature.  I further draw attention to be provisions of clause 12 of the constitution which addresses the committee.  In terms of clause 14, “the management and control of the affairs of the association vests in the committee, which shall have full power and authority to do any act, matter or thing which could or might be done by the association accepting such matters as are in the rules specifically reserved to be dealt with at a general meeting of the members”.  The committee, therefore, does not have more powers than the association itself.  Indeed, it has fewer powers.  Further, the constitution, accordingly, does not contemplate the institution of legal proceedings or for that matter the authorisation of a third party to purport to act for and on behalf of the association in respect of any legal proceedings.  On this basis also, the authority of the deponent to initiate the current application on behalf of the applicant, is placed in dispute.  There is, furthermore, no evidential matter put up before this court to demonstrate that the requirements in terms of clause 16 of the constitution have been complied with regarding the convening of a meeting and the taking of any decisions relevant to the decision to (a) initiate the present application and (b) authorise the deponent of the founding affidavit to do so on behalf of this applicant.’

 

[110]   The answer was as follows:

 

            Matti Amukwa’s authority to act on behalf of the second, third and fourth applicants

 

21.       NMP denies in paragraph 26 that I am authorized to initiate the application for and on behalf of the second, third and fourth applicants.  In paragraph 31, NMP also denies that I am authorized to act as a representative for the first applicant to initiate the present proceedings against NMP.

 

22.       I am advised that is was not necessary for me to have annexed to the founding affidavit resolutions proving that I am authorized to act on behalf of the applicants.  All I needed to do was to allege that the application is authorized and that I am authorized to initiate it on behalf of the applicants.  I am furthermore advised that anyone who challenges such authority must place some evidence before the court which would show that such authorization was not granted.  NMP has failed to provide any such evidence.  It has simply questioned whether certain processes were in fact followed.  I nevertheless annex hereto the resolutions taken by the applicants, ratifying all actions taken by me in respect of this application marked “MA25” to “MA28”.

 

23.       I furthermore refer to the confirmatory affidavits of Sharon Neumbo (the Chairperson of the third applicant) and Sakaria Amoomo (the Managing Director of the fourth applicant) that were filed along with my founding affidavit, in which the aforesaid applicants authorized the institution of the application.  In light of the above, I am advised that the challenge to my authority to institute these proceedings on behalf of the third and fourth applicants is without substance.  Further argument will be advanced at the hearing of this matter in this regard.

 

24.       In paragraph 43 of the answering affidavit the deponent points out that paragraph 6.10 of annexure “MA4” to the founding affidavit only gives the third applicant the power to take court action for the recovery of any amounts due to the association or to compel the fulfilment of any obligations in its favour and also to defend any proceedings that may be instituted against it.  It is then argued that the powers of the association do not include the initiation of proceedings of the present nature.

 

25.       I point out that in the introductory paragraph of article 6 of the Constitution of the third applicant (“MA4”), it is made clear that the association shall have such powers as may be necessary to further its purposes and objectives.  Those powers as set out in the remainder of article 6 are thus not the only powers that the association has.  In any event, I am advised, that the Constitution of the association cannot be interpreted in such a strict sense to exclude its right to access the courts to protect any of its rights and interests or those of its members.  I refer in this regard to article 5.1.  Further argument will be advanced at the hearing of this matter in this regard.

 

26.       With regard to the allegation in paragraph 43 of NMP’s answering affidavit that the third applicant’s Constitution does not contemplate the authorization of a third party to act on behalf of the association in the institution of legal proceedings, I again refer to the confirmatory affidavit deposed to by Sharon Neumbo in which she confirms that she is authorized to institute the application on behalf of the third applicant.  I am advised that it is not necessary for an entity to authorize a deponent to depose to an affidavit on its behalf, however, Ms Neumbo confirms that I am also authorized to do so.

 

27.       The second applicant’s Constitution does not (as pointed out by NMP) contain an express provision which establishes the second applicant as a legal person.  I am, however, advised that it does have the characteristics of a legal person based on the provisions of its Constitution as well as its activities.  The second applicant is for instance authorized in article 3 to negotiate on behalf of all its members with Government departments and to protect the interests of the hake industry.  It has its own staff (article 5), its own bank account and audited financial statements are approved every year.  The Executive Committee may in terms of article 8.1 bind the Association, not its members.  The second applicant does not own property but is currently leasing an office in its own name.  I annex hereto proof of the bank accounts, a copy of the lease agreement and a set of audited financial statements marked “MA29” to “MA31” respectively.’   

 

 [111]  With regard to the relevant parts of the ‘pleadings’ so exchanged and on a consideration of the arguments advanced by both sides iro the aspect of authority it seems to me that it was correctly pointed out in Mr Amukwa’s reply - and if regard is had to the principles enunciated in Otjozondu Mining (Pty) Ltd v Purity Manganese (Pty) Ltd  -  that it was really incumbent on NMP to have placed some evidence before the Court on the basis of which its challenge had to be mounted, which it failed to do. On closer analysis there also seems to be substance in the submission that what NMP essentially did, was to refer to the respective decision- making- processes, as apparent from the respective constitutions of the applicant associations and to then question whether these had actually been meticulously followed in each instance. The terminology employed is telling. For example:

 

  1. iro the CNFA :

 

  • after setting out the relied upon constitutional provisions it is pointed out that ‘ … there is no indication in the papers that guidelines where determined by members in general meeting in accordance with which the chairperson may act …’; and ‘ … it is accordingly unclear as to whether or not the deponent is indeed duly authorized to act …’; ‘ … there is no indication in the founding or replying papers that the provisions of clause 9 were complied with …’; ‘ a roper resolution requires to be in place taken at a duly and properly convened meeting. There is no evidence that any such meeting took place. NMP consequently disputes that the proceedings are properly authorized …’.[131]

 

  1. iro the NHA :

 

  • ‘ … there is no evidence put up in the founding papers demonstrating that any decision-making, compliant with the provisions of the constitution in question, took place authorizing the initiation of this application … and there is similarly no such documentation in respect of any meeting, duly convened in terms of that constitution, authorizing the deponent to initiate the application … The deponent’s authority … is denied’. [132]

 

  1. iro the MTA :

 

  • ‘ … there is furthermore  no evidential matter put up before this court to demonstrate that the requirements in terms of clause 16 of the constitution have been complied with regarding the convening of a meeting and the taking of any decisions relevant to a) initiate the present application and b) authorize the deponent of the founding affidavit to do so on behalf of this applicant …’.[133]

 

[112]   It so appears that NMP has simply tried to ‘turn the tables’ on the applicants. Instead of adducing any evidence itself, on the basis of which it mounted the respective challenges, it proceeded to create ‘artificial’ challenges, simply with reference to the prescribed constitutional provisions pertaining to the relevant decision-making-processes of the respective first three applicants, and by simply questioning whether or not such provisions had indeed been followed and then proceeding, by simply denying the authority of those applicants, on the basis of its own ‘no knowledge’.[134] The challenges also failed to take into account that supporting affidavits had been filed evenly with the founding affidavit of Mr Amukwa by the chairperson of the MTA, (and also the managing director of the fourth applicant), confirming that these applicants had authorised the institution of this application. It must so be concluded that NMP’s ‘trigger-challenge’ was not a strong one

 

[113]   Once challenged the applicants responded by providing the relevant resolutions in reply. I am satisfied, without quoting from the respective resolutions that they bear out that all the applicants have authorised the bringing of this application and have also authorised Mr Amukwa to do so on behalf of all the applicants, authorising him also to sign all the necessary papers, including affidavits, and to take all steps necessary in this case. [135] In any event and in so far as any such actions had not been authorised they were also ratified.

 

[114]   Ultimately it appears that what should have been prevented in motion proceedings, namely the so-called ‘hot-bed’ for spurious challenges, is precisely, what occurred in this application. These challenges are thus not upheld.

 

[115]   As a result of the above findings made in regard to locus standi and authority, the next in limine point, taken by NMP, on the  issue of delay, then becomes ripe for resolution.

 

Delay

 

NMP’s argument

 

[116]   Here it was in the first instance submitted that delay applies to all discretionary remedies[136] such as the declaratory relief now sought in respect of a licence already granted in 2011 and where the present application was only brought towards the end of 2016. This 5-year delay was glaring, obvious, exceptional and manifestly inordinate, and should lead to the dismissal of this application, unless condoned. Counsel for NMP thus argued that in such circumstances the issue of delay should have been dealt with upfront by the applicants in the founding papers[137]. Also the defence alleged in reply, to the effect that the “delay has no impact on the declaratory relief sought regarding the legal status of the ML170”[138] and that “unreasonable delay does not arise in this case”[139] was on the basis of the legal principles set out above, not accurate.

 

[117]   Criticism was levelled in regard to the manner in which the applicants had not sufficiently and properly dealt with the delay point, as delay, and the prejudice occasioned as a result, was an important consideration in the present matter.

 

[118]   In respect of the response furnished by the applicants in reply, that they did not know that there was alleged non-compliance with the provisions of the Act until Mr Namandje was furnished with documents by the first respondent on 26 October 2016 in response to his queries as contained in a letter dated 21 October 2016 (MA11) and that it was allegedly only then when the applicants discovered that “no application was submitted to the Minister of Mines and Energy or the first respondent”[140] it was submitted that such case should have been made in the founding papers. At best for the applicants, even if this explanation were to be accepted by this Court (which, so it was contended, it should not), this defence was advanced in respect of the declaratory relief sought in prayer 1 only. In any event, such stance was simply unsustainable and unavailing inter alia for a number of reasons –

 

  1. ‘ML170 was granted during July 2011, after NMP having completed an extended exploration programme commencing 2006 to define and prove the necessary mineral resources to support the ML application. The applicants were aware of this process;

 

  1. the ECC was applied for during April 2012 and in terms of the Act. The process which was followed in preparing the said reports (and thereafter) was robust, open and transparent. The applicants featured prominently (whether directly, through representatives or through the MFMR) and actively participating in the preceding consultative process[141]. That NMP intended applying for an ECC once the Act commenced (on 6 February 2012) was no secret and was a well-known fact, also to the applicants[142];

 

  1. the applicants knew, for several years prior to the initiation of this application, that there was an extensive environmental assessment process underway, driven by NMP, and which clearly concerned NMP’s rights under ML170;

 

  1. section 51 of the Minerals Act, provides for a register of mineral licences (which, by definition, includes a mining licence). A copy of any mineral licence issued in terms of that Act and the register referred to in that section shall during ordinary office hours be open for inspection by any person free of charge, and any person may on payment of such fee as may be determined under section 123 of the Act obtain copies of such mineral licence or extracts from such register;

 

  1. nothing precluded the applicants from – over the years – checking the register, obtaining a copy of ML170 (which would include the conditions sought to be relied on), make inquiries whether the condtions were met, by way of correspondence from the applicants’ legal practitioners of record or otherwise. Quite why this was only done in 2016, is unexplained. The same, with respect, applies to the applicants’ reliance on section 57 of the Act;

 

  1. section 17 of the Act requires the EC to maintain a register of ECCs issued and environmental plans approved in therms of the Act, as well as of environmental assessments undertaken in terms of the Act. Reference is also made to sections 33(1) of the Act. “Interested and affected parties”, in terms of regulation 23(2), have access to, and an opportunity to comment on, the report referenced therein (see regulation 23(3)). The keeping of records and assessment register is addressed in regulation 27.

 

[119]   It was thus argued on the strength of this that the process was not one ‘shrouded in secrecy’ and that nothing precluded the applicants from approaching the governmental repondents, or NMP for that matter, in order to obtain a copy of the application for an ECC, or to make inquiries as to what application process was followed. It was thus plain, and must cleary have been known by the applicants, that the EM Act came into operation (February 2012). The applicants must also have been keenly aware of its provisions. There is no suggestion to the contrary. Why inquiries on NMP’s ECC application were not made earlier, is simply not stated.

 

[120]   It was further forcefully argued that NMP had engaged in a time-consuming and costly exercise in gathering credible and established scientific evidence and expert, peer reviewed opinion which support the decision to grant it an ECC[143]. An ECC would not have been applied for, and the processes linked thereto, not undertaken, had NMP not been granted ML170. NMP expressly alleges (and this was not (properly, if at all) gainsaid in reply) that –

 

‘The fact that the applicants participated in the process which they now somehow seek to assail or rely upon in the present application, must surely be - it is respectfully submitted - a factor operating against them, and essentially amounts to a pre-emption on this score[144]. I again reiterate that the applicants never directly raised any issue with the due process being followed. The applicants never directly raised any issue with the due process being followed via their line ministry, the MFMR. The MFMR never raised any issue with due process during the six years of engagement. The entire process was conducted over an extended period (six years) and in full sight of the other key ministries, the applicants and their members, as well as other senior, high level Government structures and persons, including the said Cabinet Committee and the Cabinet itself. During this time, any one or all of the mentioned persons in these structures or organisations could and with respect, should have raised their concerns earlier (assuming that any such concerns would be valid, which remains denied for reasons already stated) and taken the appropriate action timeously. They failed to do so. In the interim, NMP has incurred a substantial amount of money in this process, which would essentially be rendered largely wasted (also given the lapse of time) if the relief sought in the present application is granted. This is to the distinct and material prejudice of NMP, and also does not auger well for foreign direct investment in Namibia[145].

 

[121]   Counsel then pointed out that an affected party is not even required to show that it has been prejudiced for an unreasonable delay challenge to be upheld, but if prejudice is, in addition, shown to exist, this was a further relevant consideration which favoured the upholding of the challenge. Indeed, an unreasonable delay is seldom, if ever, condoned if the delay caused prejudice[146]. Quite how the applicants could purport to claim ignorance regarding the manner of application by NMP for the ECC regarding ML170, remained unclear as the applicants, throughout, were engaged in the process, a process that was transparent. Accordingly, and if the applicants did not know, they should reasonably have become aware of the manner of the application for the ECC, and they could have established the “facts” now sought to be relied upon by means of a simple inquiry. There was no suggestion in the applicants’ papers that this was not possible. The delay point, so it was respectfully submitted, was to be upheld, on the basis of which, the Court should decline to exercise its discretion in favour of the applicants.

 

[122]   During oral argument Mr Tötemeyer reiterated that the principles relating to delay apply to declarators. A chronology of the events was supplied in answer and from which it appeared that the applicants were - throughout – aware of the entire process. He re-emphasised NMP’s prejudice, which could have been avoided if the application would have been brought without unreasonable delay.

 

The applicants’ argument on delay

 

[123]   In the main it was here firstly and crisply submitted that, despite sharing features of a review, the application is not, in fact, a review application and  rather should be seen as, an application arising from a declarator to the effect that a particular mining license has lapsed. Given such circumstances it was thus submitted that the requirement for the application to have been launched within a reasonable time was not applicable. Also, and as the licence expired by operation of law the question of delay similarly did not arise.

 

[124]   In the event that the delay issue was relevant then the Court should make two enquiries.  Firstly it should determine, objectively, whether the delay was, on the facts, unreasonable and secondly, and that enquiry would entail the exercise of a discretion and will depend on whether a reasonable and satisfactory explanation has been provided for the delay to justify condonation thereof.[147]

 

[125]   It was thus argued that despite the issue of the license and the protracted history from 2010 to 2016, the facts reveal that the application was not unduly delayed as: 

 

  1. the challenge is that the mining license became invalid or lapsed on 5 February 2013;

 

  1. the public consultation and scoping process which followed could obviously not be ignored and might have achieved a satisfactory end in circumstances where no party would have felt aggrieved enough to approach this Court and any earlier approach would, accordingly, have been premature;  [148]

 

  1. during this process the Applicants deferred to the Ministry of Fisheries and Marine Resources (as its line Ministry) to resolve the requirements for the scientific studies to complete the EIA assessment;[149]

 

  1. from 17 September 2013 to 17 March 2015 the Cabinet imposed an 18 month moratorium on the issue of Environmental Clearance Certificates;[150]

 

  1. on 5 September 2016 the Environmental Commissioner granted NMP’s application for an ECC in respect of ML 170; [151]

 

  1. the applicants only discovered that NMP did not comply with its licence conditions and section 32 of the Act when its legal representative was furnished with documents by the Government Attorney on 26 October 2016 (which revealed NMP’s non-compliances).  The legal proceedings were instituted shortly thereafter. [152]

 

[126]   It was thus contended that the application was launched within a reasonable time of the applicants coming to know of the grounds giving rise to it. In any event, the court was requested to consider the peculiar circumstances which influenced the entire process and which, ultimately, only reached finality with the issue of the ECC, fully justified any delay.

 

[127]   In supplementary heads of argument it was then reiterated that the authorities relied upon on the issue of delay by NMP were all concerned with review of proceedings.[153]

 

[128]   It was now highlighted that in the absence of any indication of invalidity there was no reason for the Applicants to have checked the register to establish whether the mining license was valid and it was, therefore, submitted that the counter-argument raised on behalf of NMP amounted to an unreasonable expectation.[154] While conceding that regard should be had to the date upon which a party should reasonably have become aware of the grounds to review, it was simply not demonstrated by NMP, on what basis the Applicants should, have become aware earlier of the defective licence. [155]

 

[129]   It was then submitted that, in any event, the authorities do not limit the discretion of the Court and that in fact, the Supreme Court has recognised that there may be circumstances when the public interest in finality and certainty should give way to other weighty considerations. [156] It was thus emphasized in this regard that in a situation where environmental and socio-economic rights may be influenced for many decades and future generations might in time to come pay the price for a process permitted for want of timeous application, the Court should find that the environmental considerations clearly constitute a consideration which would outweigh quick finality.    

 

[130]   Counsel for the applicants thus submitted that this would ‘ … represent(s) the typical kind of issue where the PP approach[157] shouts out for a decision on the merits, as opposed to form or procedure - which is really what the defence of delay was all about’. It was thus contended that ‘ … it would be a sad day for justice if, 100 years hence, the fish is all depleted and that generation must read in the law reports, that the decision was never made on the merits, but avoided for delay’

 

[131]   The concluding submission then simply highlighted that the Applicants: 

 

  1. only learnt of the defects on 26 October 2016;

 

  1. launched the application within a week thereafter. 

 

[132]   At the hearing Mr Marais urged the court to look at the substance of the matter and he re-emphasised that what was before the court was not the ‘typical type of declarator’ but one that related to the validity of a licence and an ECC and that for that reasons alone one should not just ‘stare blindly at the delay’. Even if the principles pertaining to delay in review would apply the court should not ignore the underlying facts and then apply the applicable ‘double test’ and consider in its discretion that what was at play was also an environmental issue, which enjoys constitutional protection, which would thus invoke a more generous approach. He thus bluntly asked the court ‘to be generous’.

 

[133]   He requested the court also to consider that there was not much more that the applicants could have done and that there was a moratorium in place for a particular period of time. He pointed out also that there was no suggestion that the applicants could have found out earlier and once found out the application was launched within a week.

 

[134]   He emphasized that the issue of delay, if any, should not be held against the applicants but should also be viewed against the relevant environmental and constitutional concerns.

 

Resolution – delay

 

[135]   Here it should firstly be recognized that counsel for both parties raised valid arguments.

 

[136]   It should also be stated immediately that it is not so, as counsel for the applicants have submitted, that :

 

  1. the principles of delay have no bearing on declarators;

 

and that

 

  1. the authorities relied on NMP where all concerned with review proceedings

 

as counsel for NMP have relied- and referred in paragraphs 16 and 26 of their main heads of argument[158] - inter alia also to Kandando v Medical and Dental Council of Namibia (HC-MD-CIV-MOT-REV-2017/00353) [2018] NAHCMD 287 (3 May 2018) at [55] to [56] where the Court refused to exercise its discretion in favour of applicant to accede to the sought declaratory relief inter alia also on the ground of the substantial and unreasonable delay that occurred in that matter. I am thus not persuaded that, in the circumstances of a matter. where an application for declaratory relief is brought years after the alleged expiry of a licence by operation of law, the question of delay does not arise. Declaratory relief is discretionary. Unreasonable delay remains a factor to be considered in this context. I will thus proceed to consider and apply the principles pertaining to delay also in this matter.

 

[137]   I am further not persuaded by NMP’s argument that the issue of delay should necessarily have been dealt with by applicants upfront in view of their stance on the issue and in view of the comments the Court has made on this issue in Hikumwah and Others v Nelumbu and Others 2015 (4) NR 955 (HC) at [47] to [49].

 

[138]   Counsel are however agreed that the leading authority to be applied is Keya v Chief of the Defence Force 2013 (3) NR 770 (SC) where the Court laid down the proper approach to the question of unreasonable delay.

 

‘[21]     This court has held that the question of whether a litigant has delayed unreasonably in instituting proceedings involves two enquiries: the first is whether the time that it took the litigant to institute proceedings was unreasonable. If the court concludes that the delay was unreasonable, then the question arises whether the court should, in an exercise of its discretion, grant condonation for the unreasonable delay.[159] In considering whether there has been unreasonable delay, the high court has held that each case must be judged on its own facts and circumstances[160] so what may be reasonable in one case may not be so in another. Moreover, that enquiry as to whether a delay is unreasonable or not does not involve the exercise of the court's discretion.[161]

 

[22]      The reason for requiring applicants not to delay unreasonably in instituting judicial review can be succinctly stated. It is in the public interest that both citizens and government may act on the basis that administrative decisions are lawful and final in effect.[162] It undermines that public interest if a litigant is permitted to delay unreasonably in challenging an administrative decision upon which both government and other citizens may have acted. If a litigant delays unreasonably in challenging administrative action, that delay will often cause prejudice to the administrative official or agency concerned, and also to other members of the public. But it is not necessary to establish prejudice for a court to find the delay to be unreasonable, although of course the existence of prejudice will be material if established.[163] There may, of course, be circumstances when the public interest in finality and certainty should give weight to other countervailing considerations. That is why once a court has determined that there has been an unreasonable delay, it will decide whether the delay should nevertheless be condoned. In deciding to condone an unreasonable delay, the court will consider whether the public interest in the finality of administrative decisions is outweighed in a particular case by other considerations.’

 

[139]   The first question which thus requires determination is whether or not the applicants have unreasonably delayed the institution of these proceedings?

 

Was the delay unreasonable?

 

[140]   NMP contends that the relevant period is a period of about 5 years, that is the period from the granting of ML170 in 2011 to the launch of the proceedings in 2016. It was submitted that the process was not one ‘shrouded in secrecy’ and that nothing precluded the applicants from approaching the governmental repondents, or NMP for that matter, in order to obatin a copy of the application for an ECC, or to make inquiries as to what application process was followed. In any event the applicants knew, that the EM Act had come into operation (February 2012) in which regard it had not been explained why inquiries on NMP’s ECC application had not been made earlier. On face value a delay of about 5 years would be unreasonable per se if one considers how the Supreme Court in SA Poultry Assoc v Minister of Trade & Industry 2018 (1) NR 1 (SC) commenced its analysis of a period of delay of more than 12 months when it stated:

 

‘[46] The starting point in this enquiry is a period in excess of 12 months taken from the date of publication of the notice to launching the review application. Much shorter periods have been found by the courts to be unreasonable for the institution of review proceedings. It certainly called for a full explanation, and one which covered the entire period.[164]

 

[141]   The defence to this was crisp in that reliance was placed on the date on which documentation was made available by the Government Attorney and which was the 26th October 2016 and through which NMP’s perceived non-compliances were discovered and where the reaction to this, through the institution of these proceedings, was prompt and without undue delay on 1 November 2016.

 

[142]   It should be remembered in this regard that NMP’s response to this was essentially that as the applicants were involved throughout in the process that eventually led to the granting of the ECC to NMP the applicants should reasonably have become aware of the complained of shortcomings earlier.

 

[143]   Given the nature of this particular dispute it becomes important to determine the point in time when ‘the clock - so-to-speak - started to tick’ in order to determine whether the applicants contentions, or those raised on behalf of NMP will have to prevail.

 

[144]   It is here that the timeline of events, as set out above, will be helpful as it will give an indication of what transpired in the relied upon 5 year period prior to the launch of the current proceedings, which analysis in turn will indicate whether or not the applicants should reasonably have become aware earlier of the grounds on which they rely upon for relief herein and whether or not they could thus have launched these proceedings at an earlier stage.

 

[145]   The most important aspects which emerge from the said chronology are :

 

  1. that during 2011 NMP appointed environmental practitioners to oversee and guide the EIA/EMPR process and that NMP commenced scoping and public consultation also with the MFMR; a scoping report was submitted to the Environmental Commissioner on 15 December 2011;

 

  1. that during 2012 the Environmental Commissioner gave directions in regard to further consultations;

 

  1. that during 2013 an independent external review was conducted on his directions;

 

  1. that during 2014 NMP still had to finalise its verification programme with input from various stakeholders and that NMP also prepared to conduct the requisite verification survey where after the data collected had to be analysed and a report was submitted to the Environmental Commissioner and MME in November 2014; 

 

  1. that an updated EMPR was also submitted to the Environmental Commissioner on 8 December 2014;

 

  1. that during 2015 and after the expiry of the Cabinet Moratorium the Environmental Commissioner ordered an external review of NMP’s verification report which was completed in November 2015;

 

  1. that during 2016 NMP still had meetings and workshops with various stakeholders to discuss its verification report and results.  MFMR objected in writing to NMP’s EIA and verification report and opposed the award of an environmental clearance certificate. Environmental Commissioner presented NMP’s application to Cabinet who directed that he use his discretion;

 

  1. that the environmental clearance certificate was issued on 5 September 2016.

 

[146]   Given this sequence of events - and given the relevance of an ECC in the process that would ultimately have entitled NMP to actively commence with the envisaged marine phosphate mining activities - could it thus - reasonably - have been expected of the applicants to have investigated and launch these proceedings at an earlier stage. I believe not.

 

[147]   NMP was throughout this period – ie. the period 2011 to 2016 - essentially engaged in the processes of obtaining the necessary and important ECC during which period Cabinet also imposed a moratorium on the granting of ECC’s. The end result of this protracted process leading up to the decision whether the applied for ECC was to be granted was by no means clear, or a forgone conclusion. If such certificate would have been refused the need for the bringing of the application would obviously have fallen away given the provisions of sections 27 of 57 of the EM Act 2007. In other words, if the application would have been launched during 2012 or even after the expiry of the moratorium, it would in all probability have been regarded as pre-mature as, at that stage, the possibility, that the ECC would eventually not be granted, could not be excluded. The outcome of the process was surely relevant in this regard throughout.[165] The opportune time to attack ML170 clearly arose once the relevant ECC was granted on 5 September 2016 through which it became clear that NMP could now commence with the envisaged phosphate mining activities. The discovery shortly thereafter of the grounds relied on occurred as a consequence of documentation provided on 26 October 2016. The application was launched on 1 November 2016.

 

[148]   I thus believe that, in such circumstances, it cannot be said that these proceedings where unreasonably delayed.

 

[149]   Even if I were wrong in this regard – and – if on the facts of this matter I should have found that the application was unreasonably delayed – I would have condoned such delay mainly in the exercise of my discretion on the basis of the considerable public interest and because of the importance of the issues raised in this case and – where the chronology set out above, justified the delay to some extent and - on the basis of which - it probably could not have been said that the delay – although lengthy – should, in the circumstances of the chronology and the activities reflected there, be regarded as egregious. The question of the substantial prejudice to NMP would, no doubt, have played an important part in the exercise of the discretion that would then have had to be exercised, but, ultimately, I would have been swayed by Mr Marais’ argument to the effect that the issue of delay should - in this case - also be viewed against the relevant environmental and constitutional concerns - and that the court - in its discretion – and in the consideration of what would be in the interests of justice – and with reference to what was at play, namely important environmental issues, which should enjoy constitutional protection - should invoke a more generous approach, as the matter : ‘ … shouts out for a decision on the merits, as opposed to form or procedure - which is really what the defence of delay is all about’ and where ‘ … it would be a sad day for justice if, 100 years hence, the fish is all depleted and that the next generation must read in the law reports, that a decision was never made on the merits, but avoided for delay’.[166]

 

[150]   What would have become clear from what I have found and stated above is it that I will not uphold NMP’s defence of ‘unreasonable delay’.

 

[151]   This finding then means that the merits of the declaratory relief sought, can now be considered.

Applicants’ argument on the merits: the validity of ML170

 

[152]   The applicants’ challenge against ML170 was, in essence, raised on the grounds:

 

  1. ‘that NMP had failed to undertake an EIA within a period of 6 months from the date of issue; and

 

  1. that NMP had failed to apply in the prescribed manner for an ECC within one year of the date of the EM Act, in other words, within 12 months from 6 February 2012.’

 

[153]   It was firstly pointed out that ML170 was subject to certain terms and conditions issued by the Minister of Mines [167] of which the relevant ones stated:

 

‘7.        The holder of the mining license shall undertake an environmental impact assessment over the area covered by the exclusive prospecting license, formulate and forward to the Ministry of Mines and Energy for approval an environmental management plan report within 6 months from the date of issue of the license.  

 

8.         The holder of the mining license shall enter into an environmental contract with the Ministry of Environment and Tourism and that of Mines and Energy once the EMPR is approved.’ [168]

 

[154]   Counsel for the applicants acknowledged that the phrase ‘subject to’ can be assigned different meanings as it might simply reflect an ‘obligation’ or it might mean ‘a condition proper’ and it has also been interpreted to mean “except as curtailed by”.[169] Accordingly and in order to consider its proper meaning in a particular case, it would be necessary for the written instrument to be interpreted in terms of the modern interpretational approach.[170] The terms and conditions seem to incorporate both varieties.   (For example, the requirement for local employees to be employed for its Namibian off-shore operations and for taxes to be paid here might not operate as a condition proper whilst, on the other hand, the environmental conditions are, on any approach, clearly of conditional nature). It was then submitted that the relevant phrase was clearly jurisdictional:   

 

            ‘Generally speaking, the words ‘subject to’ have the effect of introducing a qualification, limitation or condition precedent, thereby curtailing a person’s exercise of otherwise unlimited or unrestricted rights.’ [171]

 

and that some guidance could be obtained from the law of contract where a condition may be regarded as a condition precedent if it goes to the root, or is of the essence of, the contract. [172]

 

[155]   Although NMP claims that there was substantial compliance it was beyond doubt that: 

 

  1. a draft EIA / EMPR was submitted on 12 January 2012; [173] and

 

  1. the final EIA / EMPR was only submitted on 11 April 2012.[174]

 

[156]   It was thus submitteed that this occurred in circumstances where it was clear that the relevant condition was not interested in the supply of a draft report.   (After all, a draft is exactly that) and where it was also beyond dispute that the report was a draft and nothing else, as reflected by NMP’s own affidavit:

 

‘On 12 January 2012, being 6 months from date of issue of ML 170, the draft EIA / EMPR was submitted to MET, MFMR and MME as competent authority, in compliance with the conditions of ML 170.’[175]

 

[157]   Also on a careful consideration of the draft report itself it appeared that it was really nothing more than a draft. [176]

 

[158]   It was accordingly submitted that the issue of a ‘draft’ could never in be compliance with the conditions of the mining licence.

 

[159]   In further support of this argument it was then contended that to hold otherwise would open the door to any party claiming that a draft (however incomplete and conditional it might be) would constitute compliance and that the legislature would have mentioned that it would have been satisfied with a ‘draft’ if that was all it required.   It was thus argued that on no possible basis could it be concluded that the issue of a draft constituted compliance with the requirement for a final report also as it becomes clear from Section 17(2) of the EM Act that the EC would have to review a ‘final’ EIA – and not a “draft”.[177]  In juxtaposition it was pointed out that a ‘draft’ management plan was by way of comparison recognised only in respect of the scoping report, as per Regulation 8(j)).

 

[160]   In further support of their argument that what was submitted by NMP was a ‘draft’, counsel argued that this was also confirmed by the fact that, subsequently, a final EIA / EMPR was submitted only after it had been circulated for comments from the public and relevant stakeholders. It was accordingly contended that NMP itself recognised its obligation to issue a final EIA / EMPR. Also from this recognition it appeared that the final EIA/EMPR was delivered outside the time allowed. While it was true that NMP could have requested an extension of the deadline (as pointed out in a letter of the Minister of the MME to the Minister of the MFMR dated 13 February 2012) [178]  it did not. The question thus arose what effect of this would be?

 

[161]   It this regard the argument ran as follows:

 

  1. The Act came into operation on 6 February 2012;

 

  1. Section 57 of the Act provides as follows: 

 

‘(1)   A person who, on the date of commencement of this Act, undertakes a listed activity under an authorisation may continue to undertake such activity for a period not exceeding one year, or such longer period as the Minister may on application approve.

 

(2)   A person who wishes to continue with a listed activity in terms of an authorisation contemplated in subsection (1) after its expiry in terms of that subsection must apply for an environmental clearance certificate, in terms of this Act before its expiry.

 

(3)    If a person has lodged an application in terms of subsection (2) the relevant authorisation in respect of which the application has been lodged remains valid until such time as the application has been dealt with in terms of this Act.’;

 

  1. A ‘listed activity’ means an activity listed in terms of section 27(1) and 29;

 

  1. The relevant provisions of Government Gazette 29 include the following as listed activities: 

 

MINING AND QUARRYING ACTIVITIES

 

3.2       Other forms of mining or extraction of any natural resources whether regulated by law or not.

 

3.3       Resource extraction, manipulation, conservation and related activities;

 

 

  1. NMP acknowledged, in its draft EIA report,[179] that exploration activities are ongoing in respect of the area covered by the licence where resource development continues.  (The Applicants also claim that NMP removed samples during the relevant period). It was thus submitted that these activities all constitute ‘resource extraction’ - which is a ‘listed activity’;

 

  1. These provisions therefore required NMP to apply for an ECC before the expiry of 12 months since commencement of the Act or, at least, that it had to timeously make application for an extension;[180]

 

  1. NMP did not do so.   (Here it was highlighted that, after all, it was common cause that NMP applied on 11 April 2012).  Significantly in this regard, it appears that the application for the ECC was made directly to the Permanent Secretary of the MET and that the Minister of the MME was only served with a complimentary copy of the EIA/EMPR.[181] 

 

[162]   In conclusion of the written argument counsel posed- and answered the following questions, which I quote verbatim:  

 

  1. Is the obligation to submit an EMPR within 6 months from the date of issue of the license a jurisdictional fact, upon which the ongoing validity of the license depended?   

 

We submit that it clearly is and the licence automatically lapsed upon failure to submit the EMPR within 6 months.   In context we submit that the clause constitutes a condition, as much as renewal of a driver’s or pilot’s license may be required for its ongoing validity.   Any other approach would negate the effect of the condition and give rise to uncertainty, a decision to revoke, a challenge to such decision and other complications which the Ministry no doubt did not contemplate. This approach is consistent with incorporation of both phrases in the preamble, namely terms and conditions.

 

  1. Is a draft EIA sufficient for compliance where a proper / final EIA is required?

 

            We submit, certainly not.   A draft is a draft.  The meaning of a ‘draft’ connotes an incomplete, preliminary or provisional document.   If the legislature was going to be satisfied with something like that, it would have said so.   It also makes no sense, whatsoever, for a draft to be required.

 

  1. Does exploration amount to the extraction of natural resources?

 

It does, in our submission.   It follows that it is a listed activity in terms of Sections 3.2 and 3.3 of the annexure. If it is a listed activity, NMP clearly had to comply with Section 32 and 57 of the Act. It did not.

 

In these circumstances we submit that the application should be granted, with costs, such costs to include the costs of one instructing and, at least, two instructed Counsel.’

 

Argument on behalf of NMP

 

[163]   In response NMP’s initial counter-argument referred in the first place to the conditions under which ML170 had been granted. It was pointed out that at the time when ML170 was granted and issued, the EM Act was not in force.  The Act came into effect on 06 February 2012[182]. There was thus a pre-existing and valid ML170 in place. It did no lapse in January 2012. Whatever events transpired thereafter, in any event, did not impact on the validity of ML170. The conditions to ML170 do not state that if they are not met, ML170 lapses. There is also no such provision in the Minerals Act. That, in any event, cannot be the position in law. The Act is clear. The Minister of MME may, or may not, in the exercise of the discretion vested in him by section 55 of the Minerals Act, decide whether he will invoke his discretion to possibly cancel the mining licence as a result. If he decides to invoke his discretion, he is statutorily obliged to comply with the provisions of section 55 of the Minerals Act, which regulate how a mineral licence may be cancelled. These provisions where pre-eminently reasonable and in compliance with Article 18 of the Namibian Constitution, which in any event requires that the Minister of MME should have invoked a process of audi alteram partem in terms of his duties under the said Article to engage in fair and reasonable decision making before he takes a decision to cancel a mining licence on the bases of an alleged non-compliance with conditions attached thereto. This process has wisely been included expressly in the relevant statutory instrument, being the Minerals Act (section 55), leaving it in the discretion of the Minister of MME. There may well be compelling reasons why a mining licence holder has not complied with a condition, short of vis major (addressed in section 56 of the Minerals Act).There is no question, and none of the parties have sought to raise this, that there was ever any question that the Minister of MME sought to implement or invoke section 55, let alone take a decision under it. The procedure was never invoked.

 

[164]   The next point that was taken by counsel for NMP was that the applicants misinterpret the conditions relevant to ML170 and also make incorrect calculations on time. They thus incorrectly contend that ML170 has lapsed within six months of its issue as :

 

‘a)        The terms and conditions attached to NMP’s licence appear from “MA5”.  The requirements set out under paragraph 7 (part 3) of the terms and conditions refers to the EMPR.  The EIA must first be completed in order to determine the EMPR.  The terms set out in the licence document is specific in calling the requirement for the EMPR to be submitted to the MME (within the six-month period referred to) for approval, and makes no mention of the Ministry of Environment and Tourism (“MET”);

 

b)         the period of six months from the “date of issue of the licence” is defined in the ML170 licence document, schedule of supplementary terms and conditions, Part 1, paragraph 1, as being “the mining licence shall endure for a period of twenty years reckoned from the date of acceptance (hereinafter “the date of issue”) of the terms and conditions referred to in this notice”.  The terms and conditions were accepted on 13 July 2011.  Hence, six months from that date is 13 January 2012 or 12 January 2012 at the latest[183].The term (part 3) mentioned is specific in that it clearly explains the process for NMP to enter into an environmental contract with MET and the MME once the EMPR has been approved by the MME.  There is no requirement stated for the EMPR to have been approved within the six-month period or for the environmental contract with the MME and the MET to have been signed off within the six-month period.  NMP has no control as to when the EMPR would be approved by the MME;

 

c)         The relief sought in prayer 2 is also in any event gainsaid by what is put up in NMP’s answering affidavit – the requirement having been met if regard is had to annexure “MW54”.  NMP duly completed and delivered the ML170 EIA and EMPR (included)[184] to both the fourth respondent and the second respondent on 12 January 2012[185] (and therefore within the six-month period[186]) (the report referred to being annexure MW07[187]), in full compliance[188] with the relevant terms and conditions governing ML170[189]. This much is confirmed by expert evidence, and has not been gainsaid by the applicants. The documents so submitted are extensive (consisting of some 190 pages, and including chapters dealing, in detail with an EIA (spanning some 36 pages), an environmental management plan (spanning some 23 pages), the specialist consultant reports, the project supporting documents and the external review report) and there is – with respect – nothing put up by the applicants to suggest their inadequacy or insufficiency;

 

d)         in respect of the reference to “draft report” (the applicants make much of this), NMP points out that all assessment reports which were submitted to the EC were referred to as “draft” reports until accepted and approved as final reports, which then, in the deponent to NMP’s answering affidavit’s assessment, would become binding legal documents for environmental management and compliance purposes.  Accordingly, the reference to “draft” is not to be construed as equating to “incomplete”.  This much is confirmed by an expert witness[190].’

 

[165]   It was then contended that the argument that ML170 had expired, given the allegation that NMP “not having applied in the prescribed manner” for an ECC, ML170 “expired as contemplated in section 57” of the Act reflected a fundamental misconception of what section 57 of the Act means and that NMP’s contentions in regard to the proper interpretation of section 57 should be upheld as –

 

  1. The section does not intend to extinguish or invalidate an (existing) authorization (as defined in section 1 of the Act), including ML170;

 

  1. The section merely concerns activities under an authorization, which may be undertaken thereunder, and created a window period of 1 year (for those persons who, on the date of commencement of the Act, were undertaking a listed activity under an authorization), to so continue and for an ECC application to be made. Once the application was made, and until it is disposed of, the relevant applicant would then be authorised to continue undertaking the relevant activity;

 

  1. If an applicant was not undertaking a listed activity at the time when the Act came into operation, the applicability of section 57 of the Act does not even arise. In this event, the Act (section 27(3)) simply precludes a person from undertaking a listed activity under an existing authorisation until that person becomes the holder of an ECC.

 

[166]   Counsel then indicated that this would be argued, both on a premise of law and that the interpretation of the EM Act was also to be informed by the principles of statutory interpretation referred to. In so interpreting section 57 –

 

  1. the point of departure would have to be that there exists a valid ML170, and that it so existed at the time when the Act came into operation;

 

  1. that ML170 accorded NMP rights under the Minerals Act, and constitutes an immaterial property right under Article 16 of the Namibian Constitution. It also is central to NMP’s right to conduct business under Article 21(1)(j) of the Namibian Constitution;

 

  1. a provision in the Act which caused the setting aside or invalidation of existing rights under the Minerals Act may well have been unconstitutional, but this need not be considered at this juncture because the Act, it is respectfully submitted, is clear on this score (as contended by NMP) and in conformity with the principles of interpretation referred to herein and relied upon by NMP;

 

  1. ML170 endures for 20 years, unless abandoned in terms of section 54 or cancelled under section 55 of the Minerals Act. None of these events happened. NMP has a right that endures;

 

  1. context would be important. Sections 27(3)[191], 31[192] (read with sections 32 and those further sections addressing an application for an ECC) are also to be considered. Section 27(3) provides that a person “may not undertake a listed activity, unless the person is a holder of an environmental clearance certificate in relation to that activity”. The prohibition pertains to the “undertaking” of a listed activity. Section 31 prohibits the “issuing” (not the granting[193]) of an authorization unless the proponent has obtained an ECC. An authorization issued contrary to section 31(1) is invalid. The Act – prospectively and not retrospectively – seeks to prohibit the undertaking of a listed activity (i.e. already ongoing activities) sans an ECC;

 

  1. section 57(1) addresses someone who “undertakes” a listed activity under an authorization on the date of commencement of the Act. Section 57(2) requires a person who wishes to continue with a listed activity “in terms of an authorization contemplated in subsection (1) after its expiry in terms of that subsection” must apply for an ECC in terms of the Act and before its expiry. Clearly, the “authorization contemplated in subsection (1)” is the authorization to continue to undertake a listed activity for a period not exceeding one year, and not an “authorization” as defined in section 1 of the Act. The same, with respect, is the position under section 57(3), being that reference therein to “the relevant authorization” in that section refers to “an authorization contemplated in subsection (1)” which, in turn, refers to the authorization to continue to undertake a listed activity for a period not exceeding one year, and not an “authorization” as defined in section 1 of the Act;

 

  1. thus, it is not the validity of an “authorization” (as defined in section 1 of the Act) which is impacted upon by section 57, but the authority (or right) to continue to undertake a listed activity provided for in section 57(1). It is thus strictly irrelevant whether NMP was undertaking listed activity or not, given the aforementioned interpretation. It does not affect the validity of the authorization (as defined in section 1 of the Act). Even if this Court does not concur with NMP’s interpretation, NMP was not undertaking a listed activity on the date of commencement of the Act under ML170 (this is briefly addressed below);

 

  1. NMP’s interpretation of section 57 is consistent with the governing principles of statutory interpretation, including –

 

  1. In Total Namibia v OBM Engineering and Petroleum Distributors 2015 (3) NR 733 (SC) (at paragraph 18), the Supreme Court (with approval) referred to the approach to be followed in the construction of text and cited the approach to interpretation adopted in the South African case of Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) (at paragraph 18) being –

 

[18]      South African courts too have recently reformulated their approach to the construction of text, including contracts. In the recent decision of Natal Joint Municipal Pension Fund v Endumeni Municipality Wallis JA  H  usefully summarised the approach to interpretation as follows:

 

'Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed; and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighted in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used.'

 

  1. With further reference to theTotal matter[194] the Supreme Court referred to the approach in England and concluded that –

 

‘[19] … What is clear is that the courts in both the United Kingdom and in South Africa have accepted that the context in which a document is drafted is relevant to its construction in all circumstances, not only when the language of the contract appears ambiguous. That approach is consistent with our  E  common-sense understanding that the meaning of words is, to a significant extent, determined by the context in which they are uttered. In my view, Namibian courts should also approach the question of construction on the basis that context is always relevant, regardless of whether the language is ambiguous or not.’

 

  1. The Supreme Court further found (at paragraph 41) in the matter of Namibian Association of Medical Aid Funds and Others v Namibian Competition Commission (SA18/2016) [2017] NASC 27 (19 July 2017), that the approach to interpretation would entail assessing the meaning of the words used in their statutory context as well as against the broader purpose of the Act.  The court further found that[195] “the context in this matter is the Act and its purpose”.

 

  1. “Traditionally, it was said to be ‘a well-established rule in the construction of statutes that where an Act is capable of two interpretations, that one should be preferred which does not take away existing rights, unless it is plain that such was the intention of the legislature” [196];

 

  1. Legislation which takes away existing rights retrospectively or retroactively may well conflict with Article 1(1) of the Namibian Constitution. Law should be “clear and understandable”, as well as “certain” and be “ascertainable in advance so as to be predictable and not retrospective in its operation”[197].

 

  1. The Act (including section 57) should be interpreted to have no effect on existing rights, including ML170. This is in accordance with the rule that “laws and decrees give shape to future matters and are not applied to acts of the past, unless express provision is made for past time and for matters which are still pending”[198].

 

  1. A statute is not presumed to take away prior existing rights unless this expressly appears from the statute (in so far as the latter is at all constitutionally possible)[199].

 

  1. NMP’s interpretation also accords with an interpretation which gives the fullest amplitude and effect to its fundamental constitutional rights referred to above[200].

 

[167]   On this basis it was then argued further that whether or not NMP applied for an ECC within the one-year period, this would not impact on the validity of ML170. In any event, NMP did submit an application for an ECC within that period, which application – on the applicants’ own version – remains pending. Accordingly, even if NMP is wrong with its interpretation, application for an ECC (dealt with below) was made within the one-year period (the application being in compliance with the Act, alternatively substantially complied with the requirements of the Act, also for the reasons further referred to below) and that application remains pending.

 

[168]   It was thus disputed that ML170 did “not remain valid beyond February 2013”[201] as:

 

‘both the Minister of MME (who grants a mining licence) and the MC (who issues a mining licence) continued to recognise the validity of ML170.  If there was any doubt on this score, this would have been raised during the consultative processes referred to in the answering affidavit, it was not. Participation in that process was on the premise of the very acceptance of the validity of ML170[202] (this applies both to the condition challenge and the section 57 challenge);

 

ML170 remained valid beyond 06 February 2013 and currently remains valid as recently confirmed by the MME during a meeting on 23 April 2018 with the Deputy Minister of MME and the Deputy Director Abraham Illende.  NMP denies that it “does not exist in the eyes of the law anymore”;

 

NMP’s ML170 was valid beyond 6 February 2013 and remains valid from the effective date of issue, being 13 July 2011. Section 57 of the Act does not apply to or impact on the validity of ML170. In terms of ML170, the applicable law and the terms contained in the schedule, the mining licence shall endure for a period of twenty years reckoned from the date of acceptance of the terms and conditions referred to in the notice, unless it is abandoned in terms of section 54 of the Minerals Act, or cancelled in terms of section 55 of the said Act. Neither of the aforementioned eventualities – as already stated – have occurred[203];

 

NMP denies that ML170 has lapsed and further denies that ML170 has “automatically ceased to be valid at the expiration of the period of one year on 6 February 2013”.  NMP further denies the applicability of sections 57(1), (2) and (3) in respect of what is sought to be raised by the applicants in this application[204].  In any event – as stated – NMP did in fact make an application for an ECC in April 2012. 

 

[169]    On the issue of whether or not NMP was undertaking a listed activity at the time of the commencement of the Act, the following was submitted –

 

  • the applicants (in the replying papers), in dealing with the question of whether at the commencement of the Act, NMP was undertaking a listed activity, introduce new matter in reply, and allege that certain activities are “all being conducted under an existing authority, ML170, and that therefore section 57 of the Act applies to NMP”. In support of this allegation, reliance is placed on annexure “MW7” (page 3 – 19).  However, if regard is had to the relevant page relied upon, the relevant extract of the draft report states as follows –

 

In addition to the mining licence area (ML170 of 2233 km²) the Company also holds six exploration prospecting licences (EPLs) (Table 3.4) over 4810 km² with identified phosphate mineralisation (Figure 3.10). Exploration activities are current and on-going within these EPLs as is the case in the Mining Licence Area where resource development continues.

 

  • in paragraph 3.8 of the same draft report (page 3 – 29), it states that within the mining licence area ML170, “there is the need to continue with resource development and characterisation”. The resource development and characterization, per the relevant document, primarily relates to what is stated in the five bullet points indicated on pages 3-29 – 3-30[205].  The very purpose of the draft report quoted from was stated as being: “to ensure that the project complies with the requirements of the Environmental Management Act (No. 7 of 2007), it is necessary to conduct an environmental impact assessment (EIA) and compile an environmental management plan (EMP).  This process and its outcome then allows for the MET in association with the relevant ministries to make an informed decision as to whether or not the project should receive an environmental certificate and be allowed to proceed”[206];

 

  • the page reference of “MW7” sought to be relied upon by the applicants does not evidence that on the date of commencement of the Act, the sixth respondent was undertaking a listed activity under an authorisation. In any event, what is referred to by the applicants in paragraph 48 of the replying affidavit does not – it is respectfully submitted – fall within the listed activities provided for in the relevant Government Notice.  There is, with respect, no case made out to the effect that NMP, under ML170, on 06 February 2012 or thereafter has undertaken “resource extraction, manipulation, conservation and related activities” or “mining or extraction of any natural resource”, in the sense contemplated in the relevant Government Notice;

 

  • in paragraph 48 of the replying affidavit, the applicants further state that NMP has “also removed samples from the mining licence area”[207]. No particularity is provided. In any event, reference is made to what is already stated above. On 25 August 2011[208] the MME was informed that the mining licence requires that an EMPR be prepared and approved before the initiation of mining.  NMP also indicated that it was currently initiating the necessary actions to meet those requirements. In addition, NMP indicated that “in the interim, NMP is continuing with its sampling programme in the licence area.  These sampling activities are a continuing of the exploration programme as undertaken under the exclusive prospecting licence. Environmental contracts are in place for these activities”[209].’ 

 

[170]   In respect of the ECC application it was pointed out that this had been dealt with, in significant detail, in NMP’s answering affidavit[210] and in respect of which, the following was notable –

 

  • ‘NMP – being a responsible corporate citizen of Namibia – already appreciated that the provisions of the Act would be implemented in the near future.  The Act was promulgated already during 2007.  Draft regulations were also circulated.  NMP thought it prudent (on the advice of its environmental consultants) to already take steps before the commencement of the Act, in order to comply with the provisions which were expected to come into operation.  This would also (so it was thought) lubricate the application process for an ECC. As stated, on 06 February 2012 (when the Act came into operation), NMP was not undertaking a listed activity under ML170 and has still not until date undertaken any such listed activity[211]

 

  • MME and MET knew at the time that the purpose of the process being embarked upon was to enable NMP to apply for an ECC[212];

 

  • as reflected in the extensive chronology pertaining to the matter detailed in the answering affidavit, emphasis was placed on the consultative process.  So much so that despite a thorough process of public consultation having taken place before 11 April 2012, the first respondent formed the view that the public consultation process was “inadequate” and required NMP to “conduct another round of consultation and to document all objections in support of evidence from the public in detail”.  This NMP duly did (at yet additional cost).  It reported back to the first respondent during November 2012 (annexure “MW48”)[213];

 

  • pursuant thereto, NMP also conducted verification studies at the behest of the first respondent. This process entailed yet further meetings and consultative processes which concluded with a final meeting on 27 April 2016 at the MFMR and MET.  Key issues were raised and addressed at that meeting[214];

 

  • the final verification report comprises annexure “MW30”. An independent peer review provided by the (South African) Council for Scientific and Industrial Research confirmed inter alia that “there is no objective scientific reason why an Environmental Clearance Certificate should not be issued and the project permitted to proceed”[215];

 

  • the applicants actively participated in the process which led up to the granting of the ECC to NMP[216]. Exhaustive consultation took place[217];

 

  • the prescribed application form was used. To the application was attached the final EIA report and the EMPR. These attachments comprised the culmination of a significant amount of work undertaken by experts and consultants engaged by NMP[218];

 

  • by letter dated 05 September 2016 (“MW50”)[219] the first respondent –

 

  1. confirmed that the EIA and EMP submitted by NMP is sufficient;

 

  1. issued the ECC, to which terms and conditions in Appendix A to that letter were attached and with a validity period of three years[220].’

 

[171]   As far as the submission was concerned that the application for the ECC was not made to the competent authority, but submitted to MET it was submitted that this point has no substance and was in any event highly formalistic as–

 

  • ‘The applicants failed to point to any prejudice occasioned by the manner in which NMP applied for the ECC.

 

  • The application for the ECC was submitted to the Permanent Secretary of MET and received by the EC (see annexure “MW51”)[221], and the MME was informed in writing of the assessment report having been so submitted for approval and subsequent issue of an ECC (reference is made to “MW52”)[222], and raised absolutely no objection whatsoever to the process followed, and tacitly acquiesced thereto. NMP accepts that the fourth respondent suitably liaised with the first respondent pursuant to the receipt of the ECC application. In any event, the manner in which NMP applied for an ECC did not serve to prejudice anyone, least of all the applicants[223].

 

  • NMP had already initiated engagement with the MET on the matter of the application for an EIA, having already registered a process with the MET and MME in 2010 and appointed an EAP to manage the process in consultation with the MET and MME, prior to the enactment of the Act. In accordance with the terms and conditions of ML170 and in consultation with MME, NMP had commenced direct engagement with MET to complete the process and had discussions on the standards to be applied in anticipation of the commencement of the Act.  There was, therefore, in any event, no need for the Minister of MME to “double handle” the application submitted by NMP (sight must not be lost of the fact that there was a pre-existing authorization in place, being the issued ML170. The Act only came into operation after it was granted to NMP, this being distinguishable for what is contemplated in section 31 of the Act).  At the time it had been determined that NMP indeed held a valid mining licence granted by the MME, and that MME was fully aware of the nature of NMP’s project. It had already been determined as a condition of the mining licence that NMP would be required to complete a full EIA given the nature and scope of the project, making it unnecessary for the EC to first complete the assessment process contemplated under section 33(1)(b) of the Act[224]

 

Section 32(2) of the Act provides that “the competent authority must in the prescribed manner forward the application referred to in subsection (1) to the EC, if the proponent complies, in respect of the proposed activity, with any requirements prescribed by law in respect of that activity.”

 

  • The object of the Act was clearly met, also given the fact that an existing authorization was, in fact, already in place (issued ML170). Section 32(2) of the Act obviously relates to circumstances where the authorization is not already in place. This case is different. The statutory object sought to be met by section 32(2) of the Act was, in fact, met in advance – ML170 was already granted and issued by the time the application for the ECC was made, and since then there has also been no suggestion by MME that NMP did not and does not comply, “in respect of the proposed activity, with any requirements prescribed by law in respect of that activity”. There was thus no need for MME to make the initial assessment, i.e. whether or not the proponent “complies, in respect of the proposed activity, with any requirements prescribed by law in respect of that activity”. This clearly relates to new applications where an ECC is first applied for before the authorization is issued, in which case the initial screening by the competent authority with regards to whether the proponent “complies, in respect of the proposed activity, with any requirements prescribed by law in respect of that activity compliance with” is required.

 

  • By April 2012, the fourth respondent (being the Minister of MME) had been extensively involved – through officials of the Ministry of Mines and Energy – in the preceding consultative process. The fourth respondent supported NMP’s initiatives in seeking to engage in the commencement of phosphate mining under ML170, and at no stage expressed any concern that NMP was not complying, in respect of the proposed activity, with any requirements prescribed by law in respect of that activity.  As stated, no such concern was raised by the fourth respondent, whether at the time of the making of the application for the ECC or, for that matter, thereafter.

 

  • In any event –

 

  1. and ultimately, the first respondent is empowered, in terms of section 37 of the Act, to grant the application for, and issue an ECC.  Neither the fourth respondent nor the first respondent raised demur as to the process followed by NMP in applying for the ECC.  It is also apparent from the answering affidavit that some confusion was present (also within the Government of the Republic of Namibia), as to who the “competent authority” was.  Be that as it may, and out of abundant caution, the application was sent to the EC, and all three ministries (MET, MFMR and MME) were informed thereof.  NMP should, with respect, not be chastised for being over-cautious and sight should not be lost of the fact that all three of the mentioned Government ministries were actively engaged, and also participated, in the consultative process which led to the ECC application, and in the process followed thereafter. In as far as there was any non-compliance then at the very least there was substantial compliance with what the Act requires[225];

 

  1. and following the section 50 appeal outcome of 21 June 2018, the Minister of MME was provided with the application for the ECC[226]. The period allowed for the consultation process ordered by the Minister of MET has come to an end. The application for an ECC must now be decided.’

 

[172]   Reference was then made to Mr Amukwa statement that he was advised that the submission of the application to the competent authority is “not a mere formality”[227].  It seemed to counsel that the basis of Mr Amukwa’s statement is that, “the competent authority must therefore consider the application and make a determination before sending it to the Environmental Commissioner”. He further states that the “application can only be considered by the Environmental Commissioner once the competent authority has made the necessary determination”.  On this basis the applicants seemingly persist with their “condition” (sic) that NMP “failed to comply with section 57 read with section 32 and the applicable regulations” and that therefore “ML170 expired” as contemplated in section 57(1) and (2)[228]. Again, not only is this stance premised on an incorrect (with respect) interpretation of section 57, but it ignores the pertinent facts (essentially undisputed in the replying affidavit) regarding the process followed, and the integral involvement of the MME, referred to above.

 

[173]   In summary, it was thus submitted that NMP had complied, alternatively substantially complied, with the relevant terms and conditions attached to ML170, as well as with the formalities necessary to apply for the ECC[229]. Substantial compliance requires that the statutory object of the required compliance has been met. This has clearly happened[230]. ML170 was already in place before the commencement of the Act and at the time when the ECC was applied for. In any event, no basis exists, whether in fact or in law, to unseat ML170. In such premises the present application should be dismissed with costs, including the costs of instructing- and two instructed counsel.

 

[174]      As a result of the opportunity to address the questions of the court the parties were given the opportunity to file supplementary heads of argument through which they were also able to re-assess each other’s arguments and to respond thereto.

 

Supplementary argument on behalf of the applicants

 

[175]   With reference to NMP’s arguments that the mining license did not lapse, the mining license was not cancelled, Section 57 does not arise because and with reference to the argument that, at the time, the NMP was not undertaking a listed activity, it was firstly reiterated that the words ‘subject to’ introduce a ‘qualification’, ‘limitation’ or ‘condition precedent’ [231] and that deeming provisions must always be construed contextually and in relation to the legislative purpose. [232] It was thus contended that on any approach to interpretation, the whole purpose behind the granting of the licence would be frustrated if the Sixth Respondent could continue to mine despite non-compliance with an obvious condition. In effect, NMP would then have been entitled to mine without an EIA, an EMP, a MET or, for that matter, any concern to the environment (all dependent upon whether or not the Minister wanted to cancel) and that such a situation, contextually construed, could never be. 

 

[176]   It was thus submitted that in the circumstances:  

 

‘a)        the reference to terms and conditions in the schedule should be given effect to, to recognise that both appeared in the document; and

 

b)         the requirement for the Sixth Respondent to undertake an EIA and submit an EMPR within six months, clearly constituted a condition in the true sense.’

 

[177]   It was pointed out that on the Sixth Respondent’s own version, it failed to do so. (It argues that the Applicants are being too formalistic to argue about the authorised recipient and to distinguish between a draft and final report).  

 

[178]   Counsel then indicated that at the hearing the Court will be invited to compare the two reports and, in particular, the following pages:   

 

•           939 - 3356

•           941

•           943 - 3362

•           1070 - 3481

•           1073 - 3488

•           1085 - 3507 to 3509

•           1109 - 3556

•           3590

•           3608

 

which comparison would demonstrate that the one was a ‘draft’ or a ‘provisional’ report and the other, was to be regarded as ‘final’.

 

[179]   It was further submitted that recognition for a distinction between the two would also arise upon comparison of the different relevant provisions of the EM Act:  

 

•           Section 17(1)(e);

•           Section 32;

•           Regulation 7;

•           Regulation 8(j);

•           Regulation 12;

•           Regulation 14;

•           Regulation 15;

 

and that section 57 provides that a person who, at the date of commencement, undertook a listed activity under an authorisation could continue to do so for no more than a year and that thus, upon a proper construction of the Section, it would become clear that, in the absence of approval, the authority expires.  (After all, authorisation is defined to mean ‘an approval, license, permit or other authorisation by a competent authority in respect of a listed activity’). [233]

 

[180]   Counsel submitted further that it was accepted by NMP that it had in the interim continued with its sampling programme in the license area and that these sampling activities were continued as part of the exploration programme undertaken under the exclusive prospecting license. [234] After all NMP, itself, had confirmed that, upon the issue of the mining license ‘in July 2011 mine development activities commenced immediately as per the contract conditions, (but that) the year 1 work programme of trial mining / bulk sampling was completed on time, somewhere in the fourth quarter of 2011.’  [235]    

 

[181]   Here is was important to take into account that he phrase “listed activity” was defined in section 1 of the EM Act as “an activity listed in terms of section 27(1) and 29” and that the following activities have been listed in Government Gazette 29:

 

‘MINING AND QUARRYING ACTIVITIES

 

3.2       Other forms of mining or extraction of any mineral resources whether regulated or not.

 

3.3       Resource extraction, manipulation, conservation and related activities’.    (counsels’ emphasis).

 

[182]   The phrase used was very wide, so the argument went further, and does not limit listed activities to those that were regulated.  It is also not limited to mining activities as contemplated in the Minerals Act.  The Gazette also does not exclude activities conducted under a prospecting licence.

 

[183]   Counsel then urged the court to take into account that this definition had to be considered in the context of the broader purpose of the EM Act [236] as set out in the preamble as follows:

 

‘To promote the sustainable management of the environment and the use of natural resources by establishing principles for decision making on matters affecting the environment; to establish the Sustainable Development Advisory Council; to provide for the appointment of the Environmental Commissioner and environmental officers; to provide for a process of assessment and control of activities which may have significant effects on the environment; and to provide for incidental matters.’

 

[184]   It was to be noted that the EM Act does not distinguish between the types of authorisations to which section 57 will apply.  In fact, the definition contemplates any ‘approval, licence, permit or other authorisation by a competent authority in respect of a listed activity’ which authorises a listed activity.  The holder of a non-exclusive prospecting licence is entitled to remove minerals or samples of minerals to a place in Namibia for any purpose other than sale or disposal from any place where it was found or was won through prospecting operations.  It needs the permission of the Commissioner to remove minerals to a place outside Namibia.  This entitlement is derived from the fact that such person holds a non-exclusive prospecting licence, i.e an authorisation.In listing activities to which section 57 applies, the Minister must have had in mind that different types of activities were authorised under different types of licences issued under the Minerals (Prospecting and Mining) Act.    (If he had wanted to limit the listed activities under Mining and Quarrying to only those conducted under a mining licence, he would have done so), so the argument ran. 

 

[185]   It was now argued that in interpreting these provisions, the court should also be guided by the principles set out in art 95(l) of the Constitution [237] as the principles in art 95 require of the state to adopt policies to ensure the maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and utilization of natural resources on a sustainable basis for the benefit of all Namibians…. 

 

[186]   It was thus submitted that these provisions create a duty for the State and they oblige the State to protect and maintain biodiversity and ecology.  

 

[187]   Counsel submitted then that the impact of the Section goes even wider and that, as an arm of the State, the judiciary would be obliged to implement these provisions and to protect the environment from hasty / unsound executive policies or decisions and that this could only really be done if it would act as the upper guardian of the environment. These provisions therefore weighed heavily in favour of a more generous approach to locus standi and statutory interpretation, where in the case of locus standi, the mere risk of harm should afford a hearing (as long as it would not be so remote as to be negligible) and where in the case of statutory interpretation, all provisions relevant should be interpreted to achieve the overall objective, namely to protect the environment for future generations and to prevent exploitation where there is risk of harm. 

 

[188]   At the hearing Mr Marais asked the court to look at section 52(1)(f) of the Minerals Act 1992 which provides :

 

‘(1)       The holder of a mineral licence shall not exercise any rights conferred upon such holder by this Act or under any terms and conditions of such mineral licence-

(f)        which in any way will interfere with fishing or marine navigation, without the prior permission of the Minister granted, upon an application to the Minister in such form as may be determined in writing by the Commissioner, by notice in writing and subject to such conditions as may be specified in such notice.’

 

[189]   He submitted that these provisions already make it clear – and give recognition of the constitutional value to protect the environment as contained in Article 95(l). These values should be taken into account in interpreting the relevant provisions as the legislative context, which should thus be interpreted in favour of the ecology in order to protect the environment for future generations. He argued further that there was no reason why such an approach should not be followed. It was further relevant that the Environmental Management Act was assented to some four years before its implementation and at the time that ML170 was issued everybody knew that this act would form the backdrop to the exercise of the mining licence rights and that it would provide for a process of assessment and control of activities which may have significant effects on the environment.

 

[190]   On the issue of what type of report was required he referred to section 17(1)(e) which require the EC to ‘to review the assessment report in accordance with this act’. The EM Act required the EC to consider an ‘assessment report’ and not a ’preliminary report’ or a ‘draft’. Further statutory provisions such as those contained in sections 27(1) and (2)(c)[238] and the process prescribed in Part VIII – section 35, as well as regulations 6 and 7 [239] all showed that NMP’s argument in respect of the applicants’ insistence on a ‘final report’ was not formalistic and that the arguments in regard to ‘substantial compliance’ where also without merit.

 

[191]   He then submitted that the legislative process contemplated an independent 2-phase process and not a ‘pass-on exercise’.

 

[192]   On the issue of whether NMP was conducting a ‘listed activity’ he referred the court to GN 29 which refers in the annexure under the heading ‘Mining’ to quarry activities and in paragraph 3.2 to other to other forms of mining or extraction of mineral resources whether regulated by law or not. One of the activities in respect of which you need an ECC is extraction. 

 

[193]   As promised counsel then embarked on a comparison of the reports.

 

  1. p 939 of the record – NMP’s letter dated 12 January 2012 to the PS is the Ministry of Environment & Tourism which states : ‘we are pleased to provide for your review the draft report : …’ with p 3356 – the letter dated 11 April 2012 under cover of which NMP provided the PS with ‘the final report’.

 

  1. P 943 the report which was submitted on 12 January 2012 and which reflects at the left bottom of the page the inscription : ‘draft report Namibian Marine Phosphate (Pty) Ltd’ with p3362 the cover page of the report which is reflected as “Final Report’ and which has a date being ‘March 2012’;

 

  1. p 1070 which reflects paragraphs 6.3 to 6.4 of the Environmental Impact Assessment Report and which reflects at the left bottom of the page the inscription : ‘draft report Namibian Marine Phosphate (Pty) Ltd’ with p 3481 which reflects the contents of Chapter 5 of the Environmental Impact Assessment Report and which reflects at the left bottom of the page the inscription : ‘final report Namibian Marine Phosphate (Pty) Ltd’;

 

  1. p 1073 which reflects paragraphs 7.1 to 7.2 of the Environmental Impact Assessment Report and which reflects at the left bottom of the page the inscription : ‘draft report Namibian Marine Phosphate (Pty) Ltd’ with p 3488 which reflects the contents of a portion of Chapter 5 of the Environmental Impact Assessment Report para 5.4 and which reflects at the left bottom of the page the inscription : ‘final report Namibian Marine Phosphate (Pty) Ltd’;

 

  1. p 1085 which reflects a portion of Chapter 7 of the Environmental Impact Assessment Report and which reflects at the left bottom of the page the inscription : ‘draft report Namibi an Marine Phosphate (Pty) Ltd’ with p 3507 and p 3509 where p3507 reflects the contents of para 7.3.1.2 Chapter 7 of the Environmental Impact Assessment Report and which reflects at the left bottom of the page the inscription : ‘final report Namibian Marine Phosphate (Pty) Ltd’ and where p 3509 reflects the contents of paras 3 to 5 of Chapter 7 of the Environmental Impact Assessment Report and which reflects at the left bottom of the page the inscription : ‘final report Namibian Marine Phosphate (Pty) Ltd’’ and where  ‘the impacts’ of the proposed activities are tabulated;

 

  1. p1109 which reflects the contents of Chapter 8 of the Environmental Impact Assessment Report and which reflects at the left bottom of the page the inscription : ‘draft report Namibian Marine Phosphate (Pty) Ltd’ with p 3556 and p 3590 where p 3556 reflects the contents of Chapter 8 of the Environmental Impact Assessment Report and which reflects at the left bottom of the page the inscription : ‘final report Namibian Marine Phosphate (Pty) Ltd’ and where p 3590 reflects the contents of paras 8.9.3  and 8.9.3.1 of Chapter 8 of the Environmental Impact Assessment Report and which reflects at the left bottom of the page the inscription : ‘final report Namibian Marine Phosphate (Pty) Ltd’.

 

[194]   Counsel conceded fairly that the draft- and final reports also contained major similarities but that despite such similarities and particularly on a comparison ‘ a draft remained a draft’ and that ‘what the Minister was ultimately interested in would be a ‘final report’’. The application should thus succeed.       

 

Supplementary argument on behalf of NMP

 

[195]   Counsel for NMP firstly, in their introductory comments, took the following stance:

 

‘This matter simply involves the applicants seeking certain declaratory relief against NMP. This Court is not the “upper guardian” of the environment. There is no warrant for amicus curiae counsel. This Court need not decide or express itself as to the desirability or not of Phosphate mining in Namibia or whether or not NMP should be permitted to do so – the latter is the remit of those administrative officials specifically designated for that purpose by the Legislature. What is expected of this Court is to apply the law as it presently pertains, governing civil process, locus standi and the principles applicable to the granting of declaratory relief, and to adjudicate upon the application. Resort to alarmist and unfounded submissions, seeking to somehow (in anticipation) blame the judiciary for a 100 year hence alleged depletion of all fish, and encouraging it to jettison established legal principle to cover for the applicants’ inaction, delay and failure to put up proper papers before this Court, can simply not be sustained.

 

At the outset it is recorded that environmental aspects only concern locus standi and certain of the other in limine issues raised. The crux of the case on the merits, should it be held that the applicants have locus standi and have not unreasonably delayed and that declaratory relief at all should be considered, can be resolved in NMP’s favour on what we submit are two interpretational issues, applying ordinary principles of statutory interpretation. The plain grammatical meaning of the statutory provisions in question would lead to a conclusion in favour of NMP and dismissal of the relief sought by the applicants.’

 

[196]   It was indicated further that, in the main, NMP would remain with the stance adopted in its principal heads of argument and that further responses, if necessary, would be addressed in oral argument.

 

[197]   Some argument was then nevertheless made on the Interpretation of statutes and it was contended in this regard that the principles governing the interpretation of statutes had been clearly enunciated and whether or not environmental issues are at play they would have no impact on the “traditional legal approach” to declaratory relief.

 

[198]   In line with this argument it was then submitted that Section 2 of the EM Act deals with the objects of the Act whilst Section 3 deals with the principles of environmental management. The principles of environmental management would not necessarily be applicable (on their own) in the interpretation process. As for Section 2, in Torbitt [240] (paragraph [38]), and when interpreting section 86(18) of the Labour Act, 2007, regard was to be had to the scope and object of the Act as well as the semantic and jurisprudential guidelines referred to therein. In interpreting the Act, however, sight should also not be lost of the provisions of the Namibian Constitution which may be impacted upon by such interpretation including NMP’s rights in terms of Article 21(1)(j) of the Namibian Constitution. 

 

[199]   It was further submitted that the provisions of Sections 2 and 3 would not have a bearing on the declaratory relief sought given the fact that the declaratory relief is confined, and will essentially entail an enquiry as to whether or not – on established legal principles – the applicants have made out a case for the relief sought. In any event and even if regard were to be had to Section 2 pertaining to the objects of the Act, the objects have indeed been met, if not – it is respectfully submitted – exceeded. It was again important to underline that there is no (admissible) evidence placed before this Court that there will be any significant effects on the environment or the use or natural resources.  Instead, the evidence before this Court demonstrates the contrary. There is also no (admissible) evidence before this Court that there are any “threats of serious or irreversible damage to the environment”. 

 

Article 95(1)(l) read with article 101 of the Namibian Constitution

 

[200]   In regard to Article 95(1)(l), which falls under Chapter 11 of the Namibian Constitution dealing with the principles of state policy and which provides that the State shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at – “maintenance of eco-systems, essential ecological processes and biological diversity of Namibia and utilisation of living natural resources on a sustainable basis for the benefit of all Namibians, both present and future; in particular, the Government shall provide measures against dumping or recycling of foreign nuclear and toxic waste on Namibian territory”, it was pointed out that  Article 101 provides also that –

‘The principles of State policy contained in this Chapter shall not of and by themselves be legally enforceable by any Court, but shall nevertheless guide the Government in making and applying laws to give effect to the fundamental objectives of the said principles.  The Courts are entitled to have regard to the said principles in interpreting any laws based on them.’

 

[201]   It was then argued that it does not appear, ex facie the EM Act, that it is “based on” Article 95(l), there being no mention whatsoever of that Article or the principles of State policy in the Act. Even if one were to accept that the Act is a law based on the principles of State policy (more particularly, Article 95(l)) then it would, in any event, have no impact on the adjudication of this matter and on the interpretation of those provisions which call for interpretation for the purposes of deciding the relief sought. 

 

[202]   During oral argument this stance was reiterated and whether or not the applicants would succeed would depend on the statutory interpretation applied. Mr Tötemeyer submitted further that no authority had been provided on which it could be said that the general principles of interpretation would not apply. In any event NMP’s approach would not detrimentally affect the principles of environmental protection with which it was in harmony.

 

[203]   In any event so the argument ran further there was no merit in the applicants’ challenges. In the event that the court would not agree with NMP’s interpretation then it was NMP’s case that it had substantially complied with all requirements. The application was thus to be dismissed with costs.

 

The validity of ML170

The applicable licence conditions

 

[204]   At the core of this part of the dispute and the relief sought are the licence ‘terms and conditions’ and also the effect that the alleged out- of- time compliance with section 57 of the Environmental Management Act has on the rights obtained through the granting of ML170. Relevant in this regard is whether NMP at the time was engaged in a ‘listed activity’

 

[205]   NMP makes much of the fact that the Minerals Act of 1992 creates its own regime for the cancellation of mining licences. As this regime was not activated or a decision taken in terms of it, ML170 was never cancelled. It was also not abandoned. It has a lifespan of 20 years. It accorded NMP certain immaterial property rights. It also touches on NMP’s right to conduct business under article 21(1)(j) of the Constitution. NMP also contends that all of this was not impacted upon by the advent of the later EM Act.

 

[206] Applicants on the other hand place reliance on the relevant licence conditions which obliged NMP to undertake an EIA within a period of 6 months from the date of issue and NMP’s failure to apply in the prescribed manner for an ECC within one year of the date of the commencement of the EM Act, in other words, within 12 months from 6 February 2012, which so the argument ran was/is a jurisdictional fact upon which the ongoing validity of ML170 depended.

 

[207]   In this regard it is common cause - on NMP’s accepted version - that

 

‘On 12 January 2012, being 6 months from date of issue of ML 170, the draft EIA / EMPR was submitted to MET, MFMR and MME as the competent authority ….[241]

 

[208]   Issue was thus taken with the fact that the ‘draft EIA/EMPR’ that was submitted was not what was contemplated and also was not in compliance with the relevant licence conditions. A number of other issues were also raised. It is however clear that the applicable mining conditions should be considered first.

 

[209]   Here it appears that the Mining Commissioner, under cover of his letter dated 8 July 2011 advised that the Minister would be prepared to grant a mining licence to NMP :

 

            ‘ … subject to the terms and conditions contained in the attached schedule …’ [242]

 

and importantly :

 

‘ … which terms and conditions supplement the terms and conditions and provisions of the said act ‘

 

[210]   Now to me it immediately seems clear - given the nature and tone of the notification - which emerges on a simple reading of the letter and which leaves no doubt that - in order to accept the offer of ‘preparedness to grant (the applied for) licence’ and thus to accede to the rights conferred by it - an applicant - in this case NMP - would have to ‘unconditionally’ indicate its acceptance of such terms and conditions, by complying with the steps prescribed in sub-paragraphs a) to c) of the letter. While it is accepted that the phrase ‘subject to’ can be interpreted in different ways I believe that the language- and tone of the letter and the context in which the language was employed indicate clearly that, what was meant, unequivocally, was, that only on acceptance of the terms and conditions set in the schedule, the Minister would be prepared to grant the applied for licence, which would then be subject to the terms and conditions contained in the schedule in the sense that the applied for licence and the rights conferred by it would be ‘curtailed thereby’ as they would be subject to the ‘qualifications’ contained in the schedule, or would be ‘limited’ by such qualifications or terms and conditions , or even by any ‘conditions precedent’ contained in the schedule.[243]

 

[211]   The argument advanced in support of such construction to the effect that the whole purpose behind the granting of the licence would be frustrated if NMP could continue to mine despite non-compliance with such terms and conditions, underscores this conclusion. This could never have been the intention.

 

[212]   If one then turns to the ‘terms and conditions’ in question they read as follows:

 

‘7.        The holder of the mining license shall undertake an environmental impact assessment over the area covered by the exclusive prospecting license, formulate and forward to the Ministry of Mines and Energy for approval an environmental management plan report within 6 months from the date of issue of the license. (emphasis added) 

 

8.         The holder of the mining license shall enter into an environmental contract with the Ministry of Environment and Tourism and that of Mines and Energy once the EMPR is approved.[244]

 

[213]   The obligation formulated in condition 7 seems peremptory. The key dates for the running of the period are fixed. The period commences to run ‘from the date of the issue’ of the mining licence in question and ends ‘within 6 months’ from that date.

 

[214]   The question thus arises what is that date. From the facts not in dispute it appears that ML170 was issued on 13 July 2011. The parties seem agreed that the set 6 month period thus expired on 12 January 2012. It was on that date that NMP also submitted its ‘draft EIA/EMPR’.

 

[215]   A number of issues where raised in this regard which now require determination: Firstly NMP contends that the EIA /EMPR was duly completed and delivered to both the fourth and second respondents on 12 January 2012 and therefore within the 6 month period and that this was in full compliance with the relevant terms and conditions pertaining to ML170, alternatively in substantial compliance thereof. The point was also raised in this regard that, what was referred to as a ‘draft report’, was, in fact, like all assessment reports, referred to, as a matter of routine, as a ‘draft report’ until accepted and approved as a ‘final report’, which report would then become a legal document for environmental and compliance purposes and that accordingly the reference to a ‘draft’ was not to be equated with ‘incomplete’. All these contentions where disputed.

 

[216]   The first contention in regard to ‘full compliance’ would clearly be correct if what was delivered was not a ‘draft’, (although labelled as a ‘draft), as was suggested by NMP. Inherent however in NMP’s contentions made in this regard seems to be the acceptance that the condition – that is condition 7 - did not contemplate the submission of an actual ‘draft EIA/EMPR’ within the set 6 month period, but a ‘final’ one. I believe that to be correct. The intention could never have been that the submission of a ‘draft’ report would be in compliance with such a governing condition as was correctly submitted. After all the environmental concerns that are to be addressed through the submission of these reports demonstrate that these condition are fundamental.

 

[217]   Further support for such interpretation is afforded by the submission that if a ‘draft’ was all that would be required that such intention could easily have been expressed, but it was not. It is also unlikely that it was intended that the submission of a ‘draft’ should constitute compliance or substantial compliance in circumstances where the EC would have to review the submitted EIA/EMPR in terms of section 17(2) of the Act, which section in turn does not indicate that the statute imposes a duty on the EC to review ‘draft’ assessment reports. In juxtaposition it also was pointed out by counsel for the applicants that the only occasion where the scheme contemplates the submission and consideration of a ‘draft’ is in Regulation 8(j) of Environmental Impact Assessment Regulations (GN 30 in GG 4878 of 6 February 2012) which prescribes that a scoping report must include a ‘draft management plan’, which is indicative that the scheme that was created ‘consciously’ distinguished between the situation where a ‘draft’ was required and when not..

 

[218]   Finally it should be said on this score that also section 32 of the Act, which regulates applications for an EC, Regulation 7, which regulates the further process to be followed after the submission of an application, Regulation 12, which deals with the consideration of the required scoping report and the determination of the need for assessment, Regulation 14, in terms of which the EC has to decide on the scope of assessment and also Regulation 15, in which the content of such a report is prescribed, all militate towards the conclusion that, what had to be submitted, was a ‘final’ report.

 

[219]   It follows that the issues raised in this regard would thus hinge on the determination of what was actually submitted on 12 January 2012.

 

[220]   Here there can, in the first instance, also be no question that the ‘EIA/EMPR’ submitted by NMP on the last day of the 6 month period was factually labelled a ‘draft’ and that a further report, submitted subsequently, on 11 April 2012 was factually labelled a ‘final report’.

 

[221]   The applicants, who rely on the point, invited the court to compare the two reports and that here it should also be borne in mind that - in obvious contradiction of its aforesaid stances and defences – NMP factually followed up the ‘draft’ report - submitted on 12 January 2012 - with - a ‘final report’ - on 11 April 2012.

 

[222]   The said invitation was extended in respect of the following portions:

 

Ad record p 939 as compared with record p3356

 

  1. Here attention was firstly drawn to the contents of NMP’s letter, dated 12 January 2012, signed by a Mr Tonataltenge Emvula, a director of NMP,  under cover of which the first report, the so-called ‘draft’ was submitted:

 

 

 

 

  1. By way of comparison attention was also drawn to the contents of a second letter, dated 11 April 2012, signed on behalf of Mr Emvula, the said director of NMP, under cover of which the second report, the one labelled as the ‘final report’ was submitted:

 

 

Ad record p 941 as compared with record p3362

 

  1. This refers to the cover page of the report that was submitted on 12 January 2012 : it clearly and unmistakingly reflects :

 

 

 

            And

 

           

 

 Ad record p 943 as compared with record p3364

 

  1. This comparison indicates, with reference to the dates reflected on the respective reports, that they were prepared for NMP, by various signatories by a particular date - namely :

 

  • Messrs Woodborne and Daniel indicated their acceptance of the (draft) ‘report preparation’ and ‘approval’ on 12 January 2012;
  • Mr JR Midgley of Midgley & Assoc indicated his (draft) ‘report preparation’ as at 12 January 2012;
  • Mr Morant indicated his ‘independent review’ (of the draft) as at 12 January 2012;
  • The CSIR verified ‘the compliance with environmental process’ (iro the draft report) as at 12 January 2012 [245];

 

  1. The same persons :

 

  • namely Messrs Woodborne and Daniel indicated their further or renewed report ‘approval’ (now iro the ‘final report) as at 30 March 2012;
  • Mr JR Midgley of Midgley & Assoc indicated his further or renewed ‘report preparation’ (now iro the ‘final report’) as at 30 March 2012;
  • Mr Morant indicated his further or renewed ‘independent review’ (now iro the ‘final report’) as at 30 March 2012;
  • The CSIR again verified ‘the compliance with environmental process’ (now iro the ‘final report’) as at 30 March 2012

 

  1. What is also new/different in the 30 March 2012 ‘final’ report is that a Mr Wellbeloved now also indicates his ‘report approval’.[246]

 

Ad record p 1070 as compared with record p3499

 

  1. It appears here that the 12 January report would be made available to ‘registered I&AP’s’ and the relevant authorities for review, as well as to Enviro Dynamics, public libraries in Windhoek and Walvis Bay and with registered stakeholders – as advised – and MET, MME and MFMR.

 

  1. The ‘final report’ however then reflected:

 

‘The comments received on the draft EIA and EMPR are seen as critical in the evaluation of the proposed project.

 

The received comments have been compiled into the Final EIA and EMPR, as an appendix, with the raised matters appropriately integrated into the final report:

  • Made available on the Enviro Dynamics web site: http://www.envirod.com, with registered stakeholders advised;
  • Made available in public libraries in Windhoek and Walvis Bay with stakeholders advised through notices in the press, and
  • Provided to MET, MME and MFMR.

 

Approval

 

On the completion of these processes the authorities will be in a position to advise the project proponent of their decision.

 

If the application is successful an Environmental Contract will be established and co-signed by the relevant authorities and the proponent.  The Environmental Contract, a legally binding document will describe the conditions of approval.’

 

Ad record p 1073 – 1074 as compared with record p3503 - 3504

 

  1. This comparison reflects the following changes to Chapter 7, headed ‘Environmental Impact Assessment’ :

 

  1. An additional paragraph - added to paragraph 7.1 in the ‘final report’ – now advised that a further specialist and independent consultant, Dr J. David, had provided an additional review, as presented in Appendix 3 with ‘ … sections extracted for inclusion in this Chapter, refer to section 7.4 …’;  and

 

  1. An additional sentence was added to para 7.2 of the ‘final report’, now advising that : ‘… The definitions are identified as robust and in line with commonly applied impact criteria used in Southern Africa and as recognized internationally. ‘

 

Ad record p 1077 -  p1081 as compared with record p3507 – p3512

 

  1. This comparison demonstrates that changes where effected in regard to all the ‘originally’ listed environmental impacts that the proposed mining activities could/would have. Subsequent changes where effected to all the paragraphs dealing with : ‘Exclusion of fishing to avoid dredging, and the loss of potential fishing grounds’, ‘the removal of habitats’, ‘the creation of sediment plumes’, ‘the loss of biodiversity’, ‘displacing the normal behavior of seabirds and mammals’, ‘disturbance of normal trophic interactions and the general ecosystem functioning’ and ‘impact assessment’. These changes were not insignificant as the comparison reveals.

 

Ad record p 1109 - as compared with record p3556 – p3557

 

  1. Here the simple comparison of the contents of Chapter 8 – relating to the ‘Environmental Management Plan’ – alone - already reflects that this chapter of the ‘draft report’ - initially consisted of some 21 pages - whereas a further, and entirely new section - 8.9 - headed ‘Verification and Monitoring’ – of some 29 additional pages[247] was added to this chapter in the ‘final report’.

 

[223]   I believe that further comparisons will serve no real purpose as they will not change the clear picture that has already emerged, namely that there are significant and material differences between the ‘draft ‘- and the ‘final reports’ that were submitted.[248] The comparison also reflects that both reports where considered by various experts who indicated their various roles, by a particulars date, in respect of the ‘draft’ and a ‘final’ report’. It is most unlikely that this difference would have gone unnoticed or was a mistake. This bears out that the argument made on behalf of the applicants that what was submitted on 12 January 2012 was actually a ‘draft’, also in the sense that what was submitted was ‘incomplete’ and ‘provisional’, which submissions thus have to be upheld. Why otherwise would Mr Emvula, a director of NMP, have submitted two reports labelled - in clear and unambiguous language – the one as a ‘draft’ and the other as ‘final’ - on two separate occasions - if on NMP’s own version, ie. based also on the version of its own expert witnesses - there was no need to do so in the first place and in circumstances where the first report was to be considered and would become the ‘final report’ once accepted unless NMP also understood, then at least, that the requirements imposed on it, actually required the submission of a ‘final report’. In this regard the ancillary question arises why - and if the evidence of NMP’s experts is to be accepted that all assessment reports that were submitted were ‘routinely’ referred to as ‘draft reports’ until accepted which would then become the legally binding documents -  was this ‘routine’ not followed when it was then indicated, expressly in the ‘final report’ of 11 April 2012 – (a report that incidentally has also not been signed and accepted) - that it was a ‘final report’, (contrary to the ‘routine), and when, at the same time, the text of the draft report indicates, in contradiction of the ‘final report’, that only on ‘completion of these processes’ will the authorities be in the position ‘to advise the project proponent of their decision’ if the January 2012 submission was to be regarded as ‘final” or was intended to become final?

 

[224]   Interestingly enough, on the other hand, the ‘final report’ states expressly that the comments that were still to be received in respect of the ‘draft EIA and EMPR’ were seen as ‘critical’ to the ‘evaluation of the proposed project’ and that the comments received in this regard would be ‘compiled into the final EIA and EMPR by way of an additional appendix and that ‘only on completion of these processes will the authorities be in the position to advise the project proponent of their decision’.[249] Also this statement and the terminology employed leave no doubt that the 12 January 2012 ‘draft report’ was nothing more than a ‘draft’ and that it was not ‘complete’ and clearly also ‘not ready for approval’ and that the comments that were to be received would later be compiled into the ‘final EIA/EMPR’ and not the ‘draft’.

 

[225]   Further questions that arise from the comparison and which underscore these findings are:

 

  1. why, if the 12 January 2012 report was not to be regarded as ‘incomplete’, was there a need to file a further report on 30 March under cover of which :

 

  1. further approval as at 30 March was indicated by the experts and;
  2. why had it become necessary, in the interim, to now also obtain the further approval from a Mr Wellbeloved?

 

  1. what was the reason for Messrs Woodborne and Daniel to not indicate- again - their ‘report preparation’ on 30 March iro which Mr Midgley now indicated that he had performed this task iro the ‘final report’ submitted on 30 March;

 

  1. why would comments received on the draft report have to be incorporated by way of an appendix into a ‘final report’, and where the 30 March report could simply have been titled ‘amended draft report’? and

 

  1. why would such further comments on a ‘draft’ - (already regarded to be as final or at least as the basis of something that could become final) – and which were to be seen as ‘critical’ in the evaluation of the project be incorporated into a ‘final report’ instead of an ‘amended draft report’ which could then be simply signed and accepted? and

 

  1. why does the ‘final report’ state in these circumstances that only ‘on completion of these processes’ will the authorities be in the position ‘to advise the project proponent of their decision’ if the January 2012 submission was to be regarded as ‘final” or would become the final report? and

 

  1. why would the ‘final report’ state ‘ … that only once the application is successful an environmental contract will be established and co-signed’ by the relevant authorities and the proponent - if the approved ‘draft report’ was intended to ‘routinely’ become the ‘binding legal document’? and

 

  1. why – contrary to the said ‘routine’ - was it explicitly stated in this regard in the ‘final report’ that only the co-signed EC will be the legally binding document that will describe the conditions of approval if that was to be the ‘draft report’ once accepted?

 

[226]   Also, and as far as the comparison of the introductory portions of Chapter 7 and the assessment procedures reflected in the reports are concerned - para’s 7.1 and 7.2 – the following further questions arise:

 

  1. Why – if the ‘draft report’ was to be considered to become the ‘final report’ would the need arise to add the additional review of Dr David to the ‘final report’ and not to the ‘draft’, on the basis of which it was considered necessary to even add an extra appendix and to extract additional ‘inclusions’ from his review for insertion to para 7.4 to the ‘final report’ and not the ‘draft’?

 

  1. The same question is to be posed - mutatis mutandis - in respect of the need to add to the final report further text to paragraph 7.2 to indicate that the definitions applied where in line ‘with commonly applied impact criteria used in Southern Africa which were also recognised internationally’?

 

  1. And why were changes effected to every single listed environmental impact in the ‘final report’ if the ‘draft report’ was to become the ‘final report’;

 

  1. And why did the ‘final report’ reflect significant changes to Chapter 8 – relating to the ‘Environmental Management Plan’ – through the insertion of some 29 additional pages[250]  in a new section - 8.9 - headed ‘Verification and Monitoring’ – if the ‘draft report’ was the one that would become the legally binding document for environmental and compliance purposes”?

 

[227]   Surely it must ultimately be concluded that the EIA/EMPR submitted on 12 January 2012 was nothing more than a ‘draft’ which was not in compliance with- and which also did not- and could not constitute substantial compliance – (given the material differences) – with the terms and conditions imposed on NMP on acceptance of the Minister’s said offer made in respect of ML170. NMP was/is thus in breach of condition 7 of such terms and conditions and accordingly it has to be concluded also that NMP did not apply in the prescribed manner for the ECC at the time. In any event and even if I am wrong in this regard and if NMP has indeed lodged its application in the prescribed manner, or in substantial compliance of the requirements set in this regard, it remains uncontroverted that the relevant authorisation in respect of which the application was lodged remained valid only until such time that the application has been dealt with. It was dealt with and then set aside.

 

[228]   The question was thus raised what the effect of this would be. It was at this juncture that section 57 of the Act was brought into play. The Act came into operation on 6 February 2012. It provides:

 

‘57       Existing authorisation

(1)        A person who, on the date of commencement of this Act, undertakes a listed activity under an authorisation may continue to undertake such activity for a period not exceeding one year, or such longer period as the Minister may on application approve.

 

(2)        A person who wishes to continue with a listed activity in terms of an authorisation contemplated in subsection (1) after its expiry in terms of that subsection must apply for an environmental clearance certificate, in terms of this Act before its expiry.

 

(3)        If a person has lodged an application in terms of subsection (2) the relevant authorisation in respect of which the application has been lodged remains valid until such time as the application has been dealt with in terms of this Act.’

 

[229]   It emerges here that - for the section to apply - there must be a ‘person’ - who - at the date of the commencement of the Act - undertakes a ‘listed activity’.

 

Did NMP undertake a ‘listed activity’?

 

[230]   ‘Listed activities’ are defined in the Act to mean: ‘ … an activity listed in terms of section 27(1) or 29.’:

 

‘27       Listing of activities and prohibition in respect of listed activities

 

(1)        The Minister, after following the consultative process referred to in section 44, may list, by notice in the Gazette, activities which may not be undertaken without an environmental clearance certificate.’ …’;

and

 

‘29       Provisions relating to listing of activities

(1)        The Minister may amend the list referred to in section 27(1), by-

            (a)        adding an activity to the list;

            (b)        removing an activity from the list; or

            (c)        making other changes to the particulars on the list.

 

(2)        The Minister must comply with section 27(1) before amending the list referred to in that section.’

 

[231]   Counsel for the applicants identified the relied upon portions of the relevant Government Gazette 29 to be:

 

‘MINING AND QUARRYING ACTIVITIES

 

3.2       Other forms of mining or extraction of any natural resources whether regulated by law or not.

 

3.3       Resource extraction, manipulation, conservation and related activities.’

 

 

[232]   In this regard the argument ran further that NMP itself had accepted that it had in the interim continued with its sampling programme in the licence area and that these sampling activities were continued as part of the exploration programme undertaken under the exclusive prospecting licence. Reliance was placed on a letter written on behalf of NMP by Mr Uuugwanga, the Chief Executive Officer – Project Operations, addressed to the Permanent Secretary of the MME on 13 September 2013, which stated:

 

            ‘… The following note has been prepared to provide a further update on NMP’s development activities and thereby keep the MME informed.

Upon issue of the mining licence ML 170 in July 2011 mine development activities commenced immediately as per the contract conditions, and the year 1 work programme of trial mining / bulk sampling was completed on time as per the development schedule.  However, an adjustment to the ML 170 programme schedule for year 2 became necessary because continued progress of the development work programme activities require the mandatory environmental contract and clearances to be obtained in terms of the Namibian environmental laws.  In this regard the required marine environmental contract and clearance is still pending since the submission of the project EIA / EMPR on 30th March 2012.  By law, the environmental contracts and clearances need to be awarded before the development work programme and planned mining activities can continue towards full production.’

 

[233]   It was further pointed out that manner in which ‘listed activities had been formulated in the Gazette was very wide in that such activities where not even limited to those that were regulated or to those carried out in respect of a mining licence, but would even include activities under a prospecting licence. It was further, somewhat tentatively, added that the applicants had also claimed that NMP had removed samples during the relevant period from the mining area.

 

[234]   NMP disputed that the relied upon letter constitutes proof that it carried on a ‘listed activity’ at the relevant time. After pointing out that this was new matter introduced in reply and that it had to be taken into account that, in addition to ML170, with some 2233km2 of its own, NMP also held six further exploration licences over a further area of some 4810km2 with identified phosphate mineralisation and that exploration activities were current and ongoing within these EPL’s, as in the case of the Mining Licence area, where resource development occurs. It was also submitted that the removal of samples does not fall within the ambit of the ‘listed activities’ and that thus no case had been made out by applicants that NMP, on 6 February 2012 or thereafter, had been engaged in ‘resource extraction’.

 

[235]   In the determination of this issue it does not take much to agree that the gazetted ‘listed activities’ are indeed couched in extremely wide terms, so much becomes apparent already from paragraph 3.2 of the regulation which includes not only ‘other forms of mining’ but also ‘other forms of extraction of any mineral resources’, whether ‘regulated or not’. Mr Uugwanga’s letter cannot be ignored, it is part of NMP’s papers and thus falls to be considered. His letter confirms that, immediately upon the issue of ML170, ‘mine development activities’ occurred. Mr Uugwanga lists those activities. His letter confirms that NMP’s work programme - relating to ML170 - consisted at least of ‘trial mining’ and ‘bulk sampling’, which activities were carried out during the ‘year 1 work programme’. As the referred to ‘mine development activities’, according to Mr Uugwanga, occurred, or started to occur ‘immediately upon the issue of ML170’, this must have been at a time – immediately after - the13th of July 2011. If one accepts that the ‘year 1 work programme’ in all probability lasted for one year this would mean that the scheduled ‘mine development activities’ must have occurred during the period July 2011 to June 2012. The EM Act came into force on 6 February 2012. The ‘year 1 work programme’ had commenced by then. According to Mr Uugwanga it was completed in time. He however indicated that NMP required an adjustment to the programme schedule for year 2. Although it cannot be said – and this was not addressed – that ‘development mine activities’ - in accordance with the ‘year 1 work programme’ - actually occurred on the day in question, ie. on 6 February 2012 - it must be clear that - at the very least - such activities were ongoing on 6 February 2012 as they had been ‘ongoing’ since July 2011 – and - would be ongoing till about June 2012 and beyond – and – that accordingly - it must therefore be accepted that NMP - was conducting/undertaking the scheduled ‘mine development activities’ in the form of ‘trial mining’ and ‘bulk sampling’, in accordance with the ‘year 1 work programme’ for ML170 at the relevant time.

 

[236]   If one then considers and compares the admitted activities, that NMP was undertaking at the relevant time, it does not take much to conclude – given the wide formulation of what constitutes a ‘listed activity’ - that ‘trial mining’ and ‘bulk sampling’ is a ‘form of mining’ that entails the ‘extraction of a natural resource’. I thus find that NMP, at the relevant time, undertook a ‘listed activity’, as defined, bringing it within the ambit of the provisions of section 57.

 

[237]   As far as the actual delivery of the draft EIA/EMPR is concerned I believe noting much turns of the point, it was also not persisted with in earnest and the facts show that all the relevant authorities where served and in regard to which, at least, ‘substantial compliance’ was shown.

 

[238]   The parties are however also at loggerheads as to the meaning and effect that should be assigned to section 57 of the EM Act and what impact the section has for this matter. These issues accordingly now also require determination.

 

The interpretation of section 57 of the Environmental Management Act 7 of 2007

 

[239]   Here it is clear that the approach to statutory interpretation has been largely settled by the referred to Supreme Court authorities.[251] The applicable principles have been usefully restated in Namibian Association of Medical Aid Funds and Others v Namibia Competition Commission and Another 2017 (3) NR 853 (SC) as follows:

 

 

‘[39]     This court in Total Namibia (Pty) Ltd v OBM Engineering and Petroleum Distributors CC[252] recently referred to the approach to be followed in the construction of text and cited the lucid articulation by Wallis JA of the approach to interpretation in South Africa in Natal Joint Municipal Pension Fund v Endumeni Municipality [253]:

 

            “Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed; and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used.'

[40]      In the Total matter, this court also referred to the approach in England [254] and concluded [255]

 

            “What is clear is that the courts in both the United Kingdom and in South Africa have accepted that the context in which a document is drafted is relevant to its construction in all circumstances, not only when the language of the contract appears ambiguous. That approach is consistent with our common-sense understanding that the meaning of words is, to a significant extent, determined by the context in which they are uttered. In my view, Namibian courts should also approach the question of construction on the basis that context is always relevant, regardless of whether the language is ambiguous or not.”

 

[41]      To paraphrase what was stated by this court in Total [256], the approach to interpretation would entail assessing the meaning of the words used within their statutory context, as well against the broader purpose of the Act.’

 

[240]   It so becomes incumbent on me to assess the meaning of the words used in section 57 within their statutory context, as well as against the broader purpose of the EM Act.        

 

The statutory context and objectives

 

[241]   The statutory context would in the first instance be found in the EM Act and its purpose. So much is also clear. The relief sought seeks to assail the validity of a mining licence on the basis of the EM Act. The Minerals Act would also form part of the relevant context. Reliance was also placed on certain constitutional principles and the Supreme Law would thus also have to be considered if necessary.

 

[242]   The purpose of the Minerals Act is set out generally in section 3 from which it appears that all the listed activities are prohibited – unless licenced - in accordance with the act.[257] In this regard it is surely also relevant, as was pointed out, that the Mining Act explicitly regulates in what manner a mining licence can be cancelled.[258]

 

[243]   The purpose of the EM Act appears from section 2 which states that :

 

‘The object of this Act is to prevent and mitigate, on the basis of the principles set out in section 3, the significant effects of activities on the environment by-

 

  1. ensuring that the significant effects of activities on the environment are considered in time and carefully;

 

  1. ensuring that there are opportunities for timeous participation of interested and affected parties throughout the assessment process; and

(c)        ensuring that the findings of an assessment are taken into account before any decision is made in respect of activities.’

 

[244]   Relevant in this regard is also what is apparent from the Preamble of the EM Act and from which it appears that it was enacted  ‘to promote the sustainable management of the environment and the use of natural resources by establishing principles for decision making on matters affecting the environment …’;

 

[245]   It is clear from the introductory portion of Article 95 of the Constitution that the State is obliged to promote the welfare of the people by adopting policies which inter alia include policies for the ‘ … maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and utilization of living natural resources on a sustainable basis for the benefit of all Namibians, both present and future; …’. I will accept that the constitutionally obliged adoption of such policies can also find expression through the enactment of appropriate legislation, such as the EM Act, as it did.

 

The meaning of the words used in section 57 in their statutory context

 

 

[246]   At the outset of this exercise I believe that it will be useful to first identify and set out those aspects of section 57 and related sections, which on my understanding of the respective arguments, are uncontested. Counsel are agreed and it is uncontested in this regard that :

 

  1. for section 57 to apply, a person had to – in the first place - undertake a ‘listed activity’ at the commencement of the EM Act;[259]

 

  1. a ‘listed activity’ is one that has to be gazetted in terms of section 27 of the EM Act and the list can be amended in terms of section 29;

 

  1. Section 27(1) - in clear and unequivocal terms - states that ‘listed activities’ may not be undertaken without an environmental clearance certificate;

 

  1. Section 27(3) reinforces this prohibition in that it provides that ‘despite any other law to the contrary, a person may not undertake a listed activity, unless the person is a holder of an environmental clearance certificate in relation to that activity’;

 

  1. The consequences for contravening subsection 27(3) are serious as a person who commits an offence ‘is on conviction liable to a fine not exceeding N$500 000 or to imprisonment for a period not exceeding 25 years or to both such fine and such imprisonment.’[260]

 

  1. The ‘listed activity’ must be or had to be undertaken at the relevant time under an ‘authorisation’;

 

  1. The relevant time is : ‘on the date of the commencement of this Act’- which as far as the EM Act is concerned – is the 6th of February 2012;

 

  1. ‘authorisation’ is defined in section 1 to mean : ‘ … an approval, licence, permit or other authorisation by a competent authority in respect of a listed activity’;

 

 

  1. The contemplated person would then be allowed to continue to undertake the ‘listed activity’ in question ‘for a period not exceeding one year’, or for a longer period as the Minister may, on application, approve;  

 

  1. A person who wishes to continue with a ‘listed activity’ – that is a ‘listed activity’ contemplated in subsection 57(1) – after its expiry in terms of that subsection – which is the period ‘not exceeding one year from date of commencement of the EM Act’ unless extended on approval of the Minister – must apply for an ECC – in terms of the EM Act – before its expiry;[261] ie. within the period of one year;

 

  1. If a person has lodged an application in terms of subsection (2) the relevant authorisation in respect of which the application has been lodged remains valid until such time as the application has been dealt with in terms of this Act.

 

[247]   What is fundamentally in dispute in this regard is whether the prohibition contained in section 57 to undertake a ‘listed activity’ beyond the window provided for impacts on the validity of the ‘underlying authorisation’ in terms of which the activity is carried out, or, whether it impacts only on the ‘authority’ to continue to undertake the ‘listed activity’?

 

[248]   It is clear in the background of this matter that NMP was awarded ML170 to which certain rights and obligations are attached. Important in this regards is that the holder of a mining licence, and subject to the provisions of subsection 90 (2) and the other provisions of this Minerals Act, shall essentially be entitled-

 

            ‘(a)       to carry on mining operations in the mining area to which such licence relates for such mineral or group of minerals as may be specified in such licence;

 

(b)        to carry on in such mining area, in conjunction with any mining operations referred to in paragraph (a), any prospecting operations in relation to any mineral or group of minerals;

 

(c)        to remove any mineral or group of minerals other than a controlled mineral or sample of such mineral or group of minerals, for any purpose other than sale or disposal, from any place where it was found or won or mined in the course of mining operations referred to in paragraph (a) or found or incidentally won in the course of prospecting operations referred to in paragraph (b) to any other place within Namibia; …’.[262]

 

[249]   This seems to be the ‘underlying authorisation’ on the strength of which NMP operated at the time, or in the words of section 57(1), the ‘authorisation’ in terms of which certain activities, (which I have found to be ‘listed activities’), where undertaken at the time of the commencement of the EM Act. Mr Tötemeyer has strongly argued that this ‘underlying authorisation’ was not impacted upon - but only the ‘authorisation to continue to undertake the ‘listed activity’.

 

[250]   The definition of the word ‘authorisation’ as contained in section 1 of the EM Act seems to bear out this distinction as it at first generally includes ‘ … an approval, licence, permit or other authorisation by a competent authority … ‘ but then limits these authorisations ‘ … in respect of a listed activity. (my underlining). Listed activities are also gazetted.

 

[251]   Further support for such interpretation is founded in the express rights conferred on mining licence holders such as NMP by the Minerals Act, the express procedures set out there for the cancellation of such ‘authority’/licences in which regard also the applicable Constitutional considerations such as property rights need to be taken into account and be accommodated, all of which militate towards an interpretation that what may be legitimately impacted upon by the provisions of section 57 is the right, or ‘authorisation’ to continue with a ‘listed activity’ only with the necessary ECC, which interpretation, in turn, would give recognition to the important environmental considerations as listed in Article 95 of the Constitution and as expressed through the EM Act and its provisions. In this regard it will already have become clear beyond any doubt that, in any event, no ‘listed activities’ may be undertaken without and ECC [263] and where – importantly - the legislature has made it clear that this prohibition is to also apply – ‘despite any other law to the contrary’. The criminilisation of the undertaking of a listed activity, unless the person is a holder of an ECC, underscores the seriousness of the legislature to give expression to the here relevant principles of State policy.[264]

 

[252]   It must so be concluded that the prohibition to carry out a ‘listed activity’ ‘without an ECC’ is absolute.

 

[253]   What does all this mean for the parties?

 

[254]   Here it will in the first place have become clear that NMP, at the relevant time undertook a ‘listed activity’. NMP did not apply validly within the prescribed period of time for an EIA/EMPR and is in this regard in breach of the applicable terms and conditions of ML170. It did also not apply for an extension of this period. Purportedly NMP however did apply for an ECC, which application was granted but then was set aside.  Ultimately NMP is thus without an ECC. The provisions of the EM Act are clear and to the effect that a ‘listed activity’ may – under threat of criminal sanction - not be undertaken without an ECC. Accordingly NMP is currently not entitled to ‘undertake any listed activity’.

 

[255]   I do however need to confirm and clarify in this regard further that the ‘underlying’ ‘authorisation’, ie. the rights conferred on NMP upon the granting of ML 170, are in my view not affected by my findings in the sense that I decline to declare them invalid for the reasons given above. The effect of my finding would however be that NMP is currently precluded by the prohibition inherent is sections 57 as read with those contained in section 27 of the EM Act to undertake any ‘listed activity’- until such time that it obtains an ECC. In any event I have found NMP also to be in breach of the abovementioned relevant ‘terms and conditions’ of ML170, an aspect that may interest the relevant Minister.  

 

Should declaratory relief be granted?

 

[256]   Here it is clear from the authorities summarised earlier in this judgement that the court would be empowered, in its discretion, to grant such relief, in principle.

 

[257]   Through my findings it will already have emerged that I regard the applicants as sufficiently interested parties to afford them locus standi and thus that they have also established ‘a sufficiency of interest’ in regard to the subject matter of this litigation. Surely, just like NMP, they will also be directly affected by this decision. The outcome of this matter can also not be considered abstract, hypothetical or academic in any way. A ‘tangible and justifiable advantage’ for the fishing industry and the environment will surely flow from the granting of the sought declaratory relief. There will hopefully also be some measure of ‘utility’ in the orders that will flow from these proceedings, also for NMP.

 

[258]   After all that was said and done I believe finally that it would also be in the interests of justice – underscored also by the immense public interest in this matter - that declaratory relief should be granted.

 

[259]   The findings that I have made above- and also the conclusions that I have arrived at will however consequentially impact on the remaining declaratory relief sought in terms of the most recently amended notice of motion and from which it will then appear that I am now prepared to grant the following orders:

 

 

  1. The sixth respondent (NMP) - not having applied in the prescribed manner for an Environmental Clearance Certificate during the relevant time – and – currently – in any event being without an Environmental Clearance Certificate - is hereby declared  -  in accordance with the provisions of section 57, as read with sections 27(1) and (3) of the Environmental Management Act, 7 of 2007 – not to be  entitled to undertake a ‘listed activity’ until such time that it has obtained a valid Environmental Clearance Certificate in relation to such activity or activities.

 

  1. The application to strike succeeds with costs.

 

 

 

  1. The applicants are to bear such costs jointly and severally, the one paying, the others to be absolved, such costs to include the costs of two instructed- and one instructing counsel;

 

  1. NMP is to pay the remainder of the costs of this application, such costs to include the costs of three instructed- and one instructing counsel.

 

 

 

 

_______________

 H GEIER

JUDGE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES:

 

APPLICANTS:                                  J Marais SC (with him N Bassingthwaighte and

Y Campbell)

                                                            Instructed by Sisa Namandje & Co. Inc., Windhoek.

 

6th RESPONDENT:                         R Tötemeyer SC (with him D.F Obbes)

                                                            Instructed by ENSAfrica Namibia, Windhoek

 

[1] As per the Final Impact Assessment Report of March 2012 compiled by Mr Jeremy Midgley – J Midgley & Associates in association with Enviro Dynamics and the CSIR - Record p3368.

[2] As per the Final Impact Assessment Report of March 2012 compiled by Mr Jeremy Midgley – J Midgley & Associates in association with Enviro Dynamics and the CSIR - Record p3368.

[3] As per the Final Impact Assessment Report of March 2012 compiled by Mr Jeremy Midgley – J Midgley & Associates in association with Enviro Dynamics and the CSIR - Record p3368.

[4] Record p 552.

[5] As per the Final Impact Assessment Report of March 2012 compiled by Mr Jeremy Midgley – J Midgley & Associates in association with Enviro Dynamics and the CSIR - Record p3368.

[6] As per the Final Impact Assessment Report of March 2012 compiled by Mr Jeremy Midgley – J Midgley & Associates in association with Enviro Dynamics and the CSIR - Record p3368.

[7] Pleadings at 355 par 14.5.

[8] Pleadings at 356 par 14.11.

[9] Pleadings at 357 par 14.14 – 14.16.

[10] Pleadings at 359 par 14.27.

[11] Pleadings at 359 par 14.28 – 14.29.

[12] Pleadings at 360 par 14.33.

[13] Pleadings at 364 par 14.48 – 14.49.

[14] Pleadings at 367 par 14.62.

[15] Pleadings at 370 par 14.76.

[16] Pleadings at 370 par 14.79.

[17] Pleadings at 371 par 14.82.

[18] Pleadings at 373 par 14.92.

[19] Pleadings at 374 par 14.95.

[20] Pleadings at 375 par 14.96.

[21] Pleadings at 375 par 14.99.

[22] Pleadings at 375 par 14.101.

[23] Herbstein & van Winsen, p 1429.

[24] Herbstein, 1430 and the authorities referred to in footnotes 15 and 16, Mushwena and Others v Government of the Republic of Namibia and Another (2) 2004 NR 94 (HC), p 102, para 20 (and the authorities there referred to).

[25] Herbstein, 1431-1432.

[26] Herbstein, 1433 and the authorities referred to in footnote 29.

[27] Herbstein, 1434 and the authorities referred to in footnote 32, see also Kerry McNamara matter infra (footnote 42).

[28] 1995 (4) SA 120 (T).

[29] See also Kerry McNamara case infra, p 7, p 11, and generally also p 15. The concept of an “aggrieved person” in Articles 18 and 25 of the Namibian Constitution did not extend the scope of the traditional scope of locus standi (see p 11, I-J in the context, for instance of Article 18, but the same principle would apply to Article 25). See also Trustco v Registrar of Deeds (infra) at 732 D, 733 E.

[30] Herbstein, 1438 and the authorities referred to in footnotes 61-66

[31] Baxter, Administrative Law, 715-716; Kandando v Medical and Dental Council of Namibia (HC-MD-CIV-MOT-REV-2017/00353) [2018] NAHCMD 287 (3 May 2018); Simana v The Commissioner General Correctional Services (A 129/2011) [2012] NAHCMD 57 (09 November 2012)

[32] Article 101 of the Namibian Constitution; Metropolitan Bank of Zimbabwe Ltd and Another v Bank of Namibia 2018 (4) NR 1115 (SC) at par 30 – 33.

[33] Founding Affidavit : para 2 : p 6.

[34] Answering Affidavit : para 26 : p 383.

[35] “MA2” to the Founding Affidavit : p 52 ff.

[36] Answering Affidavit : para 31 : p 387 – 388.

[37] Founding Affidavit : p 62.

[38] Answering Affidavit : para 39 : p 391.

[39] In respect of the citation of an entity which has no legal personality, see the matter of Council for the Municipality of Walvis Bay v Kangumu [2014] NALCMD8 (LCA 76/2011, 21 February 2014), also reported at Walvis Bay Municipal Council v Kangumu 2014 (4) NR 978 (LC). Answering Affidavit : para 41 : p 386

[40] Founding Affidavit : p 75 ff.

[41] Answering Affidavit : paras 43 & 44 : p 392 – 393.

[42] Replying Affidavit : para 22, p 5252 – 5253.

[43] In respect of the CNFA (MA2), see clauses 9.6, 9.8, 11, 11.2.1; in respect of the NHA (MA3), see clauses 6, 6.1, 6.1.5, 6.2, 6.3, 6.4, 6.5, 7.2, 8.1; in respect of the MWTAN (MA4), see clauses 6, 12, 14, 16, 17,

[44] Answering Affidavit : para 29 : p 385.

[45] Herbstein, 1433 and the authorities referred to in footnote 29.

[46] Answering Affidavit : para 38 : p 390 – 391.

[47] Answering Affidavit : para 118 : p 417.

[48] Replying Affidavit : paras 28 – 34 : p 5254 ff.

[49] Pinkster Gemeente van Namibia (previously SWA) v Navolgers van Kristus Kerk van SA & Another 1998 NR 50 (HC).

[50] Given the fact that locus standi is a threshold matter, an applicant must establish its locus standi in its notice of motion or founding affidavit.  Where the matter of locus standi is raised for the first time in its replying affidavit, the court would readily grant an application to strike out this material from the replying affidavit, thus rendering it unnecessary to adjudicate upon the merits of the application.  See Coin Security Namibia (Pty) Limited v Jacobs and Another 1996 NR 276 HC. See also Herbstein and Van Winsen, Civil Practice of Superior Courts in South Africa, 2nd Edition, pages 75, 94.  In respect of applications to strike out in respect of new matter in reply, see the matter of Shephard v Tuckers Land and Development Corporation (Pty) Limited 1978 (1) SA 173 (W) at 177 H to 178 A and Titty’s Bar and Bottle Store (Pty) Limited v ABC Garage (Pty) Limited and Others 1974 (4) SA 362 (T) at 369D. 

[51] Answering Affidavit: para 49 : p 396.

[52] Answering Affidavit: para 118 : p 417.

[53] ‘(2) The following are the principles of environmental management: … (k) where there is sufficient evidence which establishes that there are threats of serious or irreversible damage to the environment, lack of full scientific certainty may not be used as a reason for postponing cost-effective measures to prevent environmental degradation; and  (l)            damage to the environment must be prevented and activities which cause such damage must be reduced, limited or controlled.’

[54] Council of the Itireleng Village Community & Another v Madi & Others at [30].

[55] Ex parte Doornfontein - Judiths Paarl Ratepayers’ Association 1947 (1) SA 476 WLD and Itireleng at par [35].

[56] Bantu Callies Football Club v Motlhamme & Others 1978 (4) SA 486 T.

[57] AAIL (SA) v Muslim Judicial Council 1983 (4) SA 855 CPD.

[58] Molotlegie & Another v President of Bophuthatswana & Others 1989 (3) SA 119 BGD (at 127).

[59] Ex-TRTC United Workers Front & Others v Premier Eastern Cape Province 2010 (2) SA 114 ECB.

[60]  Jacobs en ‘n Ander v Waks en Andere 1992 (1) SA 521 AA.

[61]  Sewmungal & Another NNO v Regent Cinema 1977 (1) SA 814 NPD (at 818).

[62] PE Bosman Transport Works Committee & Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 801, Namibian Marine Phosphate (Pty) Ltd v Minister of Environment and Tourism & Others 2019 (1) NR 90 (HC) (par 27), Stellmacher v Christians 2008 (2) NR 587 (HC) at par 16, Trustco Ltd and Another v Deeds Registries Regulation Board & Others 2011 (2) NR 726 SC (par 16).

[63] United Watch and Diamond Co (Pty) Ltd & Others v Disa Hotels Limited & Another 1972 (4) SA 409 C (at 415 H) applied in Southline Retail Centre v BP Namibia (Pty) Ltd 2011 (2) NR 562 (SC) at 572 par [17].

[64]Jacobs en ‘n Ander v Waks en Andere 1992 (1) SA 521 AA (at 540).

[65] Gross & Others v Pentz 1996 (4) SA 617 A (at 632).

[66]  Uvanga v Steenkamp 2016 (2)  at [21].

[67] Trustco Ltd v Deeds Registries Regulation Board & Others 2011 (2) NR 726 (SC) at [16] to [18].

[68] McCarthy v Constantia Property Owners’ Association 1999 (4) SA 487 CPD.

[69]  Pleadings at 52 par 2.  

[70]  Pleadings at 5265 - 5272.

[71]  Pleadings at 62 and further.  

[72]  Pleadings at 63, paragraph 3.1.

[73]  Pleadings at 65, paragraphs 6.1.2 and 6.1.4.

[74]  Pleadings at 76, paragraph 3. 

[75]  Pleadings at 79, paragraph 6.1 onwards. 

[76]  Pleadings at 385, paragraph 29. 

[77]  Pleadings at 7, paragraph 5.

[78] Pleadings at 546 – 547 and 551; Pleadings at 3368 where it is confirmed that the mining area is located within the Northern Benguela of the Benguela Current Large Marine Ecosystem, an important centre of marine biodiversity and marine food production.Pleadings at 3370 and 3668 where the impact on fisheries, mammals and seabirds is summarised.

[79] Pleadings at 380, paragraph 20.Pleadings at 3364 – The first applicant is identified as a provider of key information for the EIA.(it is to be noted that this ECC was later set side)

[80]  Pleadings at 390.

[81]  Pleadings at 3666.

[82]  Pleadings at 4066 MW47.

[83]  Pleadings at 3660 - 3661.

[84]  Pleadings at 391, paragraph 38.  

[85]  Article 95(1)(l) of the Namibian Constitution.   

[86]  Pleadings at 5, paragraph 2.  

[87]  Pleadings at 5265 - 5272.

[88] Bernard v Kleyn NO 1990 (2) SA 306 W; Otjozondu Mining (Pty) Ltd v Purity Manganese (Pty) Ltd 2011 (1) NR 298 (HC) at 312 par [53] to [54].

[89]Msunduzi Municipality v Natal Joint Municipal Pension / Provident Fund & Others 2007 (1) SA 142 NPD. Otjozondu Mining (Pty) Ltd v Purity Manganese (Pty) Ltd 2011 (1) NR 298 (HC) par [52].

[90] Smith v Kwanonqubela Town Council 1999 (4) SA 947 SCA.

Ongombe Farmers’ Association v Tjiuro & Others 2011 (2)  NR 630 (HC) at 632 par [3].

Pinkstergemeente van Namibia v Navolgers van Christus Kerk 1998 NR 50 (at 55).

Wlotzkasbaken Home Owners Association v Erongo Regional Council 2007 (2) NR 799 HC (at 805).

[91] 52 Restrictions on exercise of rights by holder of mineral licence -(1) The holder of a mineral licence shall not exercise any rights conferred upon such holder by this Act or under any terms and conditions of such mineral licence- …. (f)            which in any way will interfere with fishing or marine navigation, without the prior permission of the Minister granted, upon an application to the Minister in such form as may be determined in writing by the Commissioner, by notice in writing and subject to such conditions as may be specified in such notice.

[92] Record p 551.

[93] Record p551.

[94] Record p551.

[95] Record p 3488.

[96] Council of the Itireleng Village Community at [30] citing with approval Gross and Others v Pentz 1996 (4) SA 617 (A) ([1996] 4 All SA 63) per Harms JA (diss) at 632 and Sandton Civic Precinct (Pty) Ltd v City of Johannesburg and Another 2009 (1) SA 317 (SCA) para 19.

[97] Jacobs en 'n Ander v Waks en Andere 1992 (1) SA 521 (A).

[98] Pillay v Harry and Others 1966 (1) SA 801 (D).

[99] At 854C to 855E.

[100] Compare for instance : Brink NO v Erongo All Sure Ins CC 2018 (3) NR 641 (SC) at [39},Shaanika v The Windhoek City Police 2013 (4) NR 1106 (SC) at [28], Mugimu v Minister of Finance 2017 (3) NR 670 (HC) at [44] to [45] or Minister of Mines & Energy v Black Range Mining (Pty) Ltd 2011 (1) NR 31 (SC) at [50] and many others.

[101] Minister of Mines & Energy v Black Range Mining (Pty) Ltd at [50].

[102] Compare : ‘25 (2) Aggrieved persons who claim that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled to approach a competent Court to enforce or protect such a right or freedom, …’.

[103] Compare : ‘Article  95. The State shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at the following: … (i) maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and utilization of living natural resources on a sustainable basis for the benefit of all Namibians, both present and future; in particular, the Government shall provide measures against the dumping or recycling of foreign nuclear and toxic waste on Namibian territory.’ With the preamble to the Environmental management Act 2007 : ‘To promote the sustainable management of the environment and the use of natural resources by establishing principles for decision making on matters affecting the environment; to establish the Sustainable Development Advisory Council; to provide for the appointment of the Environmental Commissioner and environmental officers; to provide for a process of assessment and control of activities which may have significant effects on the environment; and to provide for incidental matters.’

           

[104] Trustco Ltd t/a Legal Shield Namibia v Deeds Registries Regulation Board 2011 (2) NR 726 (SC) at [18].

[105] Pleadings at 546 – 547 and 551;

    Pleadings at 3368 where it is confirmed that the mining area is located within the Northern     Benguela of the Benguela Current Large Marine Ecosystem, an important centre of marine biodiversity and marine food production.

    Pleadings at 3370 and 3668 where the impact on fisheries, mammals and seabirds is summarised.

[106] Pleadings at 390.

[107] Pleadings at 4066 MW47.

[108] Pleadings at 3660 - 3661.

[109] Pleadings at 391, paragraph 38.  

[110] Article 95(1)(l) of the Namibian Constitution.   

[111] in order to counter the NMP argument, that it was not open to the applicants to demonstrate their sufficiency of interest in reply -

[112] Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Limited 1984 (3) SA 623 A.

[113] Sixth Respondent’s Heads : paragraph 25.8.

[114] Pleadings at 551.

[115] Pleadings at 3368.

[116] Pleadings at 3370.

[117] Pleadings at 3615.

[118] Pleadings at 3614.

[119] Pleadings at 3487.

[120] Pleadings at 3488.

[121] Pleadings at 3507.

[122] Pleadings at 3509.

[123] Pleadings at 3660 - 3661.

[124] Council of the Itireleng Village Community and Another v Madi and Others at [37], De Meillon v Montclair Society of the Methodist Church of Southern Africa 1979 (3) SA 1365 (D) at 1368 D – E, compare also what Friedman J had to say in De Meillon at p1369 to 1370  iro Bantu Callies Football Club (also known as Pretoria Callies Football Club) v Motlhamme 1978 (4) SA 486 (T), compare also the discussion in Parents' Committee of Namibia v Nujoma 1990 (1) SA 873 (SWA) at p 878 to 879

[125] Molotlegi v President of Bophuthatswana 1989 (3) SA 119 (B) at 127, Interim Ward S19 Council v Premier, WC 1998 (3) SA 1056 (C) at 1059 to 1061 and others.

[126] Molotlegie & Another v President of Bophuthatswana & Others 1989 (3) SA 119 BGD (at 127).

[127] Ex-TRTC United Workers Front & Others v Premier Eastern Cape Province 2010 (2) SA 114 ECB.

[128]  Pleadings at 63, paragraph 3.1.

[129] Pleadings at 65, paragraphs 6.1.2 and 6.1.4.

[130] Compare article 6 regulating Annual General Meetings, article 9 regulating the association annual financial year and annual member subscriptions and article 11 relating to dissolution, for instance

[131] Compare Pleadings Bundle at p 387.

[132] Compare Pleadings Bundle at p 391.

[133] Compare Pleadings Bundle at p 393.

[134] This is akin to the standard ‘no-knowledge’ plea put up in action proceedings and where the aspect of ‘no knowledge’ is routinely dealt with by pleading that : ‘the plainitff’defendant has no knowledge of the allegations contained therein, accordingly does not admit or deny same, and thus puts the plaintiff/defendant to the proof thereof …’.

[135] Compare Pleadings Bundle p5265 to p5272, and the resolutions Annexures MA25 to MA 28.

[136] This would include review and declaratory relief. See also Baxter, Administrative Law, 715-716; Kandando v Medical and Dental Council of Namibia (HC-MD-CIV-MOT-REV-2017/00353) [2018] NAHCMD 287 (3 May 2018); Simana v The Commissioner General Correctional Services (A 129/2011) [2012] NAHCMD 57 (09 November 2012).

[137] Purity Manganese (Pty) Ltd v Minister of Mines & Energy; Global Industrial Dev (Pty) Ltd v Minister of Mines & Energy 2009 (1) NR 277 (HC), paras 10 – 14, p 284 – 285, Scott and Others v Hanekom and Others 1980 (3) SA 1182 (C) at 1193E; Krüger v Transnamib Ltd (Air Namibia) 1996 NR 168 (SC).

[138] Replying Affidavit : para 18 : 5251.

[139] Replying Affidavit : para 16 : 5151.

[140] Replying Affidavit : para 19 : p 5252.

[141] Answering Affidavit : para 15 : p 376 – 377.

[142] Answering Affidavit : para 11 : p 351.

[143] Answering Affidavit : para 7, p 347 – 348; para 15 : p 376.

[144] The applicants participated in the process envisaged in the order granted by the second respondent in the statutory appeal process under section 50 of the Act. Despite this, the applicants still seek to maintain that the application for the ECC was non-compliant with section 32 of the Act, and seek to impugn ML170 on that basis (Answering Affidavit : para 7 : p 347 – 348). (Replying Affidavit : 6.2, p 5247). This entire process is premised on (a) a valid ML170 and (b) a proper application for an ECC.

[145] Answering Affidavit : para 174 : p 435 – 436

[146] Disposable Medical Products v Tender Board of Namibia 1997 NR 129 (HC) at 132E and 134; Namibia Grape Growers and Exporters v Minister of Mines and Energy 2004 NR 194 (SC) at 214I.

[147] South African Poultry Association and Others v Minister of Trade and Industry and Others 2018 (1) NR 1 (SC) par [17] and [42] to [44].

[148] Arandis Power (Pty) Ltd v President of the Republic of Namibia and Others 2018 (2) NR 567 (SC) at 574 par 29 - 30.

[149] Pleadings at 362, paragraph 14.40.

[150] Pleadings at 367, paragraph 14.61.

[151] Pleadings at 375, paragraph 14.96.   (It is significant that this only happened 4½ years after the application was made - pleadings at 376, paragraph 15). 

[152] Pleadings at 118 MA10 and 267 – 269 MA15 and 5252 par 19.

[153] Sixth Respondent’s Heads : footnote 69.

[154] Sixth Respondent’s Heads : paragraph 27.5.

[155] Consider Sixth Respondent’s Heads : footnote 79.

[156] Keya v Chief of the Defence Force & Others 2013 (3) NR 770 (SC) [para 22].

[157] Precautionary principle, has for instance has been usefully described by Rogers J in WWF South Africa v Minister of Agriculture, Forestry and Fisheries and Others 2019 (2) SA 403 (WCC) at ‘[100] … The precautionary principle features widely in environmental legislation around the world. It entails that where there is a threat of serious or irreversible damage to a resource, the lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation (Jan Glazewski Environmental Law in South Africa at 19 – 20; cf Space Securitisation (Pty) Ltd v Trans Caledon Tunnel Authority and Others [2013] 4 All SA 624 (GSJ) paras 45 – 48).’

[158] Footnotes 40 and 68 - Footnote 40 refers to : Baxter, Administrative Law, 715-716; Kandando v Medical and Dental Council of Namibia (HC-MD-CIV-MOT-REV-2017/00353) [2018] NAHCMD 287 (3 May 2018); Simana v The Commissioner General Correctional Services (A 129/2011) [2012] NAHCMD 57 (09 November 2012).

[159] See Krüger v Transnamib Ltd (Air Namibia) and Others 1996 NR 168 (SC) at 170 – 171, citing with approval the South African decision Radebe v Government of the Republic of South Africa and Others 1995 (3) SA 787 (N) at 798G – 799E. See also Purity Manganese (Pty) Ltd v Minister of Mines and Energy and Others; Global Industrial Development (Pty) Ltd v Minister of Mines and Energy and Another 2009 (1) NR 277 (HC); Namibia Grape Growers and Exporters v Minister of Mines & Energy and Others 2002 NR 328 (HC); Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay and Others 2011 (2) NR 437 (HC) in paras 41 – 43 and Ogbokor and Another v Immigration Selection Board and Others, as yet unreported decision of the High Court, [2012] NAHCMD 33 (17 October 2012). For other South African decisions, see Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 39 B – D; Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en 'n Ander 1986 (2) SA 57 (A); Associated Institutions Pension Fund and Others v Van Zyl and Others 2005 (2) SA 302 (SCA) ([2004] 4 All SA 133) in paras 46 – 48; Gqwetha v Transkei Development Corporation Ltd and Others 2006 (2) SA 603 (SCA) ([2006] 3 All SA 245) in paras 5 and 22.

[160] See Disposable Medical Products (Pty) Ltd v Tender Board of Namibia and Others 1997 NR 129 (HC) at 132 (per Strydom JP). See also Purity Manganese (Pty) Ltd v Minister of Mines and Energy and Others; Global Industrial Development (Pty) Ltd v Minister of Mines and Energy and Another cited above n1 in para 14.

[161] See Radebe cited above n1 at 798I; Setkosane cited above n1 at 86E – F; Gqwetha cited above n1 at para 48.

[162] See Wolgroeiers Afslaers cited above n1 at 41E – F; Associated Institutions Pension Fund cited above n1 at 321; Gqwetha cited above n1 in para 22.

[163] See Wolgroeiers Afslaers cited above n1 at 42C; Gqwetha cited above n1 in para 23.

[164] Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC) (2008 (4) BCLR 442; [2007] ZACC 24) para 22.

[165]‘(2) A person who wishes to continue with a listed activity in terms of an authorisation contemplated in subsection (1) after its expiry in terms of that subsection must apply for an environmental clearance certificate, in terms of this Act before its expiry.

‘(3) If a person has lodged an application in terms of subsection (2) the relevant authorisation in respect of which the application has been lodged remains valid until such time as the application has been dealt with in terms of this Act.’

 

[166] Compare  : SA Poultry Association & Others v Minister of Trade & Industry & Others 2018 (1) NR 1 (SC) where the Supreme Court dealt with the issues serving before it in the following way :[58] In deciding whether or not to grant condonation after finding that a delay is unreasonable, the criterion to be applied under the common law is the interests of justice, as was recently reiterated by the South African Supreme Court of Appeal (SCA) in South African National Roads Agency Ltd v Cape Town City (SANRAL).  In determining this question, the SCA reaffirmed that regard should be had to all the facts and circumstances.

[59] The SCA also referred to the decision of the Constitutional Court in Khumalo and Another v MEC of Education, KwaZulu-Natal 2014 (5) SA 579 (CC) (2014 (3) BCLR 333; [2013] ZACC 49) para 57, where the latter court stated:

'An additional consideration in overlooking an unreasonable delay lies in the nature of the impugned decision. In my view this requires analysing the impugned decision within the legal challenge made against it and considering the merits of that challenge.'

[60] The SCA in SANRAL further found that although the delay issue in reviews should first be dealt with before the merits of the review are entertained, this —

'cannot be read to signal a clinical excision of the merits of the impugned decision, which must be a critical factor when a court embarks on a consideration of all the circumstances of a case in order  B  to determine whether the interests of justice dictate that the delay should be condoned. It would have to include a consideration of whether the non-compliance with statutory prescripts was egregious.’

[61] Further factors would include the prejudice suffered by the administrative functionary — in this case the minister — and the need for certainty, particularly in respect of a trade measure of the kind in question, the extent and cause of the delay, the reasonableness of the explanation for it, the effect on the administration of justice, the importance of the issue raised and the prospects of success.   A further factor could be whether the failure to launch the application within a reasonable time was in good faith. 

[62] The public interest is plainly served by bringing certainty and finality to administrative action or the exercise of public power of the kind in question — where the minister invokes a power within a statute to regulate trade by way of a restriction upon imports which at the very least can be challenged on legality grounds of not having been taken within the confines of the Act and would thus not be lawful. A decision of this nature in implementing economic policy though legislative powers has wide implications — including budgetary, in the form of balance of payment consequences, and the pursuit of employment creation. The prejudice to NPI would also need to be considered. But as Mr Unterhalter pointed out, much of the investment in setting it up was effected before the notice was published. Nonetheless, there would be some prejudice in a delay to a challenge to the notice, as was investigated in some detail by the High Court.

[63] As was stated by this court in Keya, prejudice is an important factor and can be material.

[64] But the other factors listed above to be considered would also require consideration in the weighing up process of determining the interests of justice.

[65] After weighing up the parties' prejudice, the High Court, in essence, found that the respondents' prejudice was material and the appellants' of far less significance. The court also considered the failure on the part of the appellants to give notice of their review, the extent of the delay and the failure to provide an acceptable explanation for the initial period of some six months.

[66] Although the public interest was referred to in respect of the prejudice to the government respondents — in the context of the lack of finality concerning the implementation of industrial policy and its implications for employment creation and investment — entirely absent from the factors weighed by the court a quo was the question of the merits and prospects of success.

[67] As already indicated, it is incumbent upon a court in determining the criterion of the interests of justice to take into account the merits of a review, in the absence of a finding that the delay is so egregious so as to justify determining the question of condonation without consideration of the merits. The merits are thus a fundamental factor to be considered by a court in such an enquiry. The failure to do so, as occurred in this appeal, results in the application of a wrong principle in the exercise of the court's discretion which was not exercised judicially as a consequence. It follows that the court's decision on condonation is to be set aside.

[68] This court heard argument on the merits as well as on the other factors to be taken into account in determining the question of what the interests of justice require in this case. This court is in a position to exercise its discretion as to whether the delay should be condoned in this instance.

[69] Clearly the issue raised in the review is of considerable public importance. It concerns the validity of a trade measure restricting poultry imports in the implementation of an economic policy to protect a fledgling industry. It also concerns the interpretation to be given to art 144 of the Constitution and the extent, if any, to which international trade treaties form part of the domestic law of Namibia and can be enforced in the national courts of Namibia. The review also concerns the principle of legality and whether international treaties in conflict with national legislation would prevail and whether the extent to which the content of those treaties must inform the exercise of statutory powers conferred to the minister under the Act. The rule of law, a foundational principle embodied in art 1 of our Constitution, requires that the exercise of public power under the statute is only legitimate if lawfully exercised and within the confines of the powers conferred upon the repository of that power by law.

[70]  In this instance, the appellants contend that the minister acted beyond his statutory powers in the Act by issuing the notice on the grounds already referred to.

[71] This question as well as the other review grounds raised by the appellants are substantial legal questions heavily contested in both written argument and cannot be said to be so devoid of merit as not to be entertained. On the contrary, the public interest would be served by the ventilation and determination of the application of art 144 of the Constitution and the extent, if any, to which international treaties can be enforced in domestic courts.

[72] In expressing this view, we deliberately refrain from expressing ourselves on the merits at all. That would need to be determined by the High Court, as we explain in the next portion of this judgment. (it is to be noted that I have not included the footnotes in this citation).

 

[167] Pleadings at 90.

[168] Pleadings at 94.

[169] Hawkins v Administration of South-West Africa 1924 SWA 67.

[170] Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 SCA (at 604). Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) at para 12; Commissioner, South African Revenue Service v Bosch & Another 2015 (2) SA 174 (SCA) at para 9 and see also Unica Iron and Steel v Mirchandani 2016 (2) SA 307 SCA at paras 21 to 22. Total Namibia v OBM Engineering and Petroleum Distributors 2015 (3) NR 733 SC.

[171] Hickman v Attorney-General 1980 (2) SA 583 R.

[172] Christie’s Law of Contract in South Africa (6th edition) at 141.

[173] Again we point out that the draft and final EIA/EMPR was submitted to the Permanent Secretary of the MET not the Environmental Commissioner.  The Permanent Secretary is not the functionary who has the power to grant the ECC.  Thus, submission to her could not be considered substantial compliance.  Pleadings 939, 5250 par 11 and 12.

[174] Pleadings at 359 - 360.

[175] Pleadings at 359, paragraph 14.28.

[176] Pleadings at 35 and annexure MW7 at pleadings 939 - 1131.

[177] It was added that the ECC’s functions were to receive and record applications for environmental clearance certificates not to receive ‘drafts’

[178] Pleadings at 4860 - 4861 MW56. The Minister has the discretion to agree to a different period in terms of Section 93 (1) read with section 48(5).

[179] Pleadings at 999, annexure MW7 (page 3/19).

[180] If we understand the real issue, correctly, NMP does not dispute that it failed within a period of 12 months to apply for the ECC.

[181] Pleadings at 5105 par 8 and 9.  Section 32 requires the application to be submitted to the competent authority who in this case is the Minister of the MME

[182] Answering Affidavit : para 89 : p 409.

[183] The applicants contend, in reply, that the date is 25 January 2012 (record, para 17, p 5252). Whatever the date is, NMP complied, alternatively substantially complied, if even NMP needed to comply. NMP put up expert evidence on this score, not gainsaid by the applicants. Further, it is not a suspensive condition. ML170 does not so provide, and neither does the Minerals Act. The said Act contemplates that non-compliance with the “conditions” does not result in the lapsing of the Mining Licence. Statutory processes are made provision for, including audi. Reference is made to sections 55 and 56 of the said Act (it is not the case that these sections were invoked, in fact it would appear that Minister of MME and the MME for that matter, accepted that NMP complied with the “condition”. In any event, the Namibian Constitution (Article 18) would require audi before any decision was taken regarding the lapsing of a Mining Licence on that basis.

[184] These documents were also publicly available on the websites of EAP and in public libraries in Windhoek and Walvis Bay (and having been so available at times material to this application) (Answering Affidavit : para 189 : p 440).

[185] Letters confirming delivery comprise annexures “MW51” (p 4192) and “MW52” (p 4195) to the answering affidavit.

[186] The six-month period within which to complete the EIA and submit an EMPR to the MME as nominated in the ML170 schedule of terms and conditions is not mandatory or compulsory and is not defined in law, but is an allocation made at the discretion of the Minister of the MME. The Minister of the MME has subsequently advised that this timeframe could have been adjusted to a longer period on request by the proponent if required, as evidenced in his correspondence (“MW56”). As such, the six-month period could easily have been extended.  The MME has not raised any concerns or issues as to whether NMP has complied with the terms and conditions of the mining licence and is satisfied that the terms and conditions have been properly met.  In any event, reference is again made to what is stated above regarding the applicants’ flawed interpretation of the relevant terms and conditions sought to be placed reliance on (Answering Affidavit : para 99 : p 412 – 413).

[187] Record : 941 ff.

[188] Answering Affidavit : para 189 : p 440, para 90, pages 409 – 410.

[189] In any event, NMP satisfied the terms set out in paragraph 7 of part 3 of ML170 in more than one instance.  The preliminary EIA and EMPR covering the EPLs incorporated into the mining licence were completed in November 2010 by appointment of an environmental assessment practitioner and the EIA and EMPR had already been submitted to the MME at the time the licence was awarded.  The preliminary EIA inclusive of an EMPR was included as an Appendix to the mining licence application submitted in 2010 and clearly outlines the process to be followed to update the EIA and EMPR following award of the mining licence and during the completion of the related definitive feasibility studies.  These processes were subsequently fully completed inclusive of the public consultation and scoping processes.  A copy of the mining licence application and the EIA (inclusive of the EMPR referred to Appendix 7 of the ML application), provided to MME, is attached to the answering papers (“MW55”) (Answering Affidavit : para 93 : p 411, MW55, p 4222). Notwithstanding the aforementioned, an updated EIA and including an EMPR was in fact completed within the six month period from the date of issue of ML170, being 13 July 2011, and submitted to the Permanent Secretary of the MET and also copied to the MME on 12 January 2012, being within the six months from the date of issue of the mining licence ML170.  The EIA and EMPR (the assessment report as envisaged in the Act) were placed for public review and comment for a period of fifteen working days.  In terms of due process, the documents were required to lie open for public comment in order to complete the final document submission which comprises the EIA and EMPR along with the recorded set of public comments submitted in the review period attached or incorporated into the EIA document (hence the distinction between the draft and final documents when submitting to MET). The MME was also notified of the submission of the revised EIA and EMPR (assessment report) (Answering Affidavit : para 95 : p 411 – 412).  The fact is thus that the EIA and EMPR were completed and submitted on 12 January 2012, within six months of the “issue” date of the ML170 (Answering Affidavit : para 97 : p 412), being 13 July 2011.

[190] Answering Affidavit : para 186.1, p 438 – 439.

[191] Despite any other law to the contrary, a person may not undertake a listed activity, unless the person is a holder of an environmental clearance certificate in relation to that activity.

[192] Effect of authorisations under other laws

31. (1) Despite any other law to the contrary, a competent authority may not issue an authorisation unless the proponent has obtained an environmental clearance certificate in terms of this Act.

(2) An authorisation issued contrary to subsection (1) is invalid.

[193] Section 91 of the Minerals Act deals with the exercise of the powers of the Minister of MME to grant or refuse mining licences. The issuing of mining licences is dealt with in section 93. The Mining Commissioner (not cited as a party to these proceedings) is directed by the Minister of MME (upon the latter granting an application for a mining licence) to issue to the person who applied for such licence, a mining licence on such terms and conditions are may be agreed upon as provided in sections 93(4) and (5).

[194] Paragraph 19 thereof.

[195] Paragraph 42 thereof.

[196] LAWSA : Volume 25 (1), 2nd Edition, The Presumptions, at 334

[197] Pharmaceutical Manufacturers of South Africa: in re Ex Parte President of the RSA 2000 (2) AS 674 (CC), para 39; see also Baxter, Administrative Law, p 78; Black Range Mining (Pty) Ltd v Minister of Mines and Energy and Others NNO 2014 (2) NR 320 (SC); Standard Bank of Namibia Ltd v Atlantic Meat Market 2014 (4) NR 1158 (SC).

[198] Adampol (Pty) Ltd v Administrator, Transvaal 1989 (3) AS 800 (A), 805 F-I (quoting from Cod 1.14.7 of Theodosius and Valentian) and the common law and English authorities there referred to; see also Genrec MEI v Industrial Council for Iron Etc., Industry 1995 (1) AS 563 (A) at 572 E

[199] Barlow & Jones Ltd v Elephant Trading Co 1905 TS 637 at 648; Dadoo v Kurgersdorp Municipal Council 1920 AD 530 at 552; Steyn, Die Uitleg van Wette, 5th edition, p 104 and the authorities referred to there.

[200] Kauesa v Minister of Home Affairs 1994 NR 102 (HC) at 162E-F; Kessl v Minister of Lands and Resettlement 2008 (1) NR 167 (HC) at 197A-C; Du Plessis at 141; Wlotzkasbaken Homeowners Association v Erongo Regional Council 2007 (2) NR 799 (HC) at 811H – 812A, and the authorities referred to there; In re Munhumesa and Others 1995 (1) AS 551 (ZSC) at 560 B; National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 CC, par 23; Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others (10) BCLR 1079 (CC) at paras 24-26.

[201] Answering Affidavit : para 78 : p 406.

[202] Answering Affidavit : para 82 : p 407.

[203] Answering Affidavit : para 87 : p 408 – 409.

[204] Answering Affidavit : para 100 : p 413.

[205] Record : p 1009 – 1010, para 3.8.

[206] Record : p 947.

[207] Replying Affidavit : para 48: p 5260 – 5261.

[208] Record : p 5183.

[209] Record : p 5183.

[210] See inter alia record : paras 11 – 23 : p 351 – 383.

[211] Answering Affidavit : para 10 : p 350 – 351.

[212] Answering Affidavit : para 13.1.1 : p 353.

[213] See record : p 4067.

[214] Answering Affidavit : para 17 : p 377 – 378.

[215] Answering Affidavit : para 18.1 : p 379, Answering Affidavit : para 9 : p 349 – 350.

[216] Answering Affidavit : para 20 : p 380.

[217] Answering Affidavit : para 15 : p 376 – 377.

[218] Answering Affidavit : para 15 : 376.

[219] See record : p 4190.

[220] Answering Affidavit : para 21 : p 380.

[221] Record : p 4192.

[222] Answering Affidavit : para 107 : p 414 – 415.

[223] Answering Affidavit : para 107 : p 414 – 415.

[224] Answering Affidavit : para 110 : p 415.

[225] Answering Affidavit : para 22 : p 380 – 381.

[226] Answering Affidavit : para 14.101 : 375 – 376, plus MW42 : p 2937.

[227] Replying Affidavit : para 52 : p 5262.

[228] Replying Affidavit : para 53 : p 5262.

[229] Answering Affidavit : para 82 : p 407.

[230] See, on the aspect of substantial compliance, Metropolitan Bank of Zimbabwe Ltd & Another v Bank of Namibia, unreported judgment of the Supreme Court of Namibia, case number SA77/2017, delivered on 23 October 2018, at paras 42, 65, 66, 72, 73, 74; Weenen Transitional Local Council v Van Dyk 2000 (3) SA 435 (N) 443H-I; DTA of Namibia v SWAPO Party of Namibia 2005 NR 1 (HC), p 10I-J, Weenen TLC v Van Dyk 2002 (4) SA 653 (SCA) at 659I-J.

[231] Hickman v Attorney-General 1980 (2) SA 583 R.

[232] Eastern Cape Parks & Tourism Agency v Medbury (Pty) Ltd 2018 (4) SA 206 SCA [para 34].

[233] Section 1 of the EM Act. 

[234] Sixth Respondent’s Heads : paragraph 42.

[235] Pleadings at 5195.

[236] Total Namibia (Pty) Ltd v OBM Engineering and Petroleum Distributors CC 2015 (3) NR 733 (SC) paras 17 – 20.

[237] Article 101 of the Namibian Constitution; Metropolitan Bank of Zimbabwe Ltd and Another v Bank of Namibia 2018 (4) NR 1115 (SC) at par 30 – 33.

[238] Section 27 Listing of activities and prohibition in respect of listed activities.

(1) The Minister, after following the consultative process referred to in section 44, may list, by notice in the Gazette, activities which may not be undertaken without an environmental clearance certificate.

(2) Activities listed, under subsection (1), may include activities in respect of any of the following areas-…   (c)            resource removal, including natural living resources;

[239] Save Regulation 8 where reference is made to a ‘draft management plan’.

[240] Torbitt v International University of Management 2017 (2) NR 233 (SC).

[241] Pleadings at 359, paragraph 14.28.

[242] Pleadings Bundle at p 91.

[243] Hickman v Attorney-General at 585 E-G.

[244] Pleadings at 94.

[245] Compare Pleadings Bundle p 943.

[246] Compare Pleadings Bundle at p3364.

[247] Pleadings Bundle p 3581 to 3607.

[248] It is not in question at the same time that some of the text remained unchanged.

[249] Compare Pleadings Bundle at p 3499.

[250] Pleadings Bundle p 3581 to 3607.

[251] See for instance also : Total Namibia (Pty) Ltd v OBM Engineering & Petroleum Distributors CC 2015 (3) NR 733 (SC), Claud Bosch Architects CC v Auas Business Enterprises Number 123 (Pty) Ltd 2018 (1) NR 155 (SC) at [25].

[252] 2015 (3) NR 733 (SC) para 18.

[253] 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13) para 18.

[254] As set out by Lord Hoffman in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 (HL) at 912 – 913.

[255] Total para 19.

[256] Paragraph 24.

[257] Compare sections 17 and 18, 32 and 33, or 43 and 44 for example.

[258] See section 55 for instance.

[259]  See section 57(1).

[260]  See section 27(4).

[261] See section 57(2).

[262] See section 90 and the other provisions relating to mining licences.

[263]  See section 27(1) and (3).

[264] Compare section ‘27 (4) Any person who contravenes subsection (3) commits an offence and is on conviction liable to a fine not exceeding N$500 000 or to imprisonment for a period not exceeding 25 years or to both such fine and such imprisonment.’

                                                REPUBLIC OF NAMIBIA                         REPORTABLE  

 

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

 

Case No: HC-MD-CIV-MOT-REV-2016/00335

 

In the matter between:

 

CONFEDERATION OF NAMIBIAN FISHING ASSOCIATIONS        1ST APPLICANT

NAMIBIAN HAKE ASSOCIATION                                                          2ND APPLICANT

MIDWATER TRAWLING ASSOCIATION                                             3RD APPLICANT

OMUALU FISHING (PTY) LTD                                                               4TH APPLICANT

 

and

 

ENVIRONMENTAL COMMISSIONER

TEOFILUS NGHITILA                                                                         1ST RESPONDENT

MINISTER OF ENVIRONMENT ANDTOURISM

SHIFETA                                                                                                2ND RESPONDENT

MINISTER OF FISHERIES AND MARINE RESOURCES

ESAU                                                                                                      3RD RESPONDENT

MINISTER OF MINES AND ENERGY KANJOZE                          4TH RESPONDENT      

ATTORNEY-GENERAL OF THE REPUBLIC

OF NAMIBIA SHANGALA                                                                   5TH RESPONDENT

NAMIBIA MARINE PHOSPHATE (PTY) LTD                                 6TH RESPONDENT

 

 

 

Neutral citation:   Confederation of Namibian Fishing Associations v Environmental Commissioner Teofilus Nghitila (HC-MD-CIV-MOT-REV-2016/00335) [2021] NAHCMD 308 (30 June 2021)

 

 

Coram:           GEIER, J

Heard:            07 July 2020

Delivered:      30 June 2021

 

 

Flynote:         Environmental law — Application to have a marine phosphate mining licence declared as having lapsed — Locus standi of applicants – All members of the fishing industry — Applicants feeling aggrieved that their fishing rights and interests in the fishing industry are threatened by the mining licence - the case they brought entails environmental issues – As the Namibian Constitution envisages a generous regime of access to courts’ and. ‘ … mandates a broad approach to standing for the purpose of the enforcement of … rights …’ and where‘ … The rules of standing should not ordinarily operate to prevent citizens from obtaining legal clarity as to their legal entitlements – Court finding that the applicable constitutional provisions, as interpreted by the Supreme Court, envisage a generous regime of access to courts which have expanded the common law principles in this regard - Court  finding that the applicants’ interests are/will be sufficiently directly and prejudicially affected by the granting of ML 170, the ECC that was obtained in this regard and the consequential contemplated marine mining activities that were to follow which afford them the necessary locus standi and thus the ‘title to prosecute their claims’ in this instance and where the relief sought does not only entail immediate declaratory relief sought with its consequences, but which relief, as a consequence, was also of wider impact, as far as the relevant environmental considerations and impacts are concerned, and, where the applicants where also seeking to protect ‘the environmental fabric’ of the traditional fishing grounds in which they operate-

 

Practice — Parties — Locus standi — First, second and third applicants voluntary associations - An association can sue or be sued as a universitas in terms of the common law if it has the capacity to acquire rights, has the power to own property and has perpetual existence. In order to establish whether or not an association has the power to sue regard is to be had to its constitution in terms of which such power may be expressly conferred or from which such power may be implied. In this regard consideration is to be given to the activities, aims and objectives of an association. Even if an Association’s Constitution contains no indication of the right to sue, a Court may, therefore, having regard to its activities, aims and objectives infer the power to sue as inherent in the express powers given to the office bearers. A written Constitution is therefore desirable but not essential to establish whether an Association complies with the requirements – the court thus in applying these principles found that the first, second and third applicants were legal entities that could sue and be sued – and that they could thus have instituted these proceedings in their own right -

 

Practice — Parties — Authority to institute proceedings — Power of attorney authorising Chairperson of the first applicant to institute application and to depose to papers in support — challenge held to be weak – instead of adducing any evidence itself, on the basis of which it mounted the respective challenges, NMP proceeded to create ‘artificial’ challenges, simply with reference to the prescribed constitutional provisions pertaining to the relevant decision-making-processes of the respective first three applicants, and by simply questioning whether or not such provisions had indeed been followed and then proceeding, by simply denying the authority of those applicants, on the basis of its own lack of knowledge - It was thus concluded that NMP’s ‘trigger-challenge’ was not a strong one - Once challenged the applicants responded by providing the relevant resolutions in reply which bore out that all the applicants had authorised the bringing of this application and that they also authorised the chairperson of the first applicant to do so on behalf of all the applicants, authorising him also to sign all the necessary papers, including affidavits, and to take all steps necessary in this case. In any event and in so far as any such actions had not been authorised they were also ratified - Ultimately it appeared that what should have been prevented in motion proceedings, namely the so-called ‘hot-bed’ for spurious challenges, was precisely, what occurred in this application. The challenges were thus not upheld.

 

Practice — Applications and motions — Declaratory order — Court holding that the principles of delay also have a bearing on declarators – Court holding further that. where an application for declaratory relief was unduly delayed, the question of delay would arise as declaratory relief is discretionary. Unreasonable delay thus was a factor to be considered in this context. Court proceeding to consider and apply the principles pertaining to delay also in this matter.

 

Practice — Applications and motions — Declaratory order — Delay in instituting proceedings for declaratory relief — Whether delay unreasonable – Court finding proceedings not unreasonably delayed – In any event the Court would have condoned such delay mainly in the exercise of its discretion on the basis of the considerable public interest in the matter and because of the importance of the issues raised in this case and – where the chronology of events leading up to the application would have justified the delay to some extent and - on the basis of which - it probably could not have been said that the delay – although lengthy – should, in the circumstances of the chronology and the activities reflected there, be regarded as egregious. Although the question of the substantial prejudice to NMP would have played an important part in the exercise of the discretion that would then have had to be exercised, the court would ultimately have been swayed by the argument to the effect that the issue of delay should - in this case - also be viewed against the relevant environmental and constitutional concerns - where the court - in its discretion – and in the consideration of what would also be in the interests of justice – and with reference to what was at play, namely important environmental issues, which should enjoy constitutional protection - would invoke a more generous approach, as the matter : ‘ … shouts out for a decision on the merits, as opposed to form or procedure - which is really what the defence of delay is all about’ and where ‘ … it would be a sad day for justice if, 100 years hence, the fish is all depleted and that the next generation must read in the law reports, that a decision was never made on the merits, but avoided for delay’ – NMP’s challenge on the basis of ‘undue delay’ was thus not upheld.

 

Applicants claimed that NMP had not complied with the applicable mineral licence conditions in terms of which it had to submit an Environmental Impact Assessment and an Environmental Management Plan Report within 6 months from date of issue of its mining licence when it submitted a ‘draft report’ in this regard on the last day of the prescribed 6 month period and a ‘final one’ outside the time window created by the applicable condition. Court finding on the facts that what was submitted was in actual fact a ‘draft report’ and that the relevant condition did not contemplate the filing of a ‘draft report’ and that NMP was thus in breach of the relevant mining licence condition – the question thus arose what the implications of this would be with the coming into force of the Environmental Management Act and where Section 57 permits a person who was undertaking a ‘listed activity’ at the commencement of the Act to continue such ‘listed activity’ for a period of not exceeding 1 year – a person wishing to continue with a ‘listed activity’ after the expiry of the 1 year period in terms of an ‘authorisation’ must apply for an Environmental Clearance Certificate before its expiry – a person who has lodged such application may continue the ‘listed activity’ until such time that the application has been dealt with.

 

The court firstly found that NMP was undertaking a ‘listed activity’ – as defined - at the date of commencement of the Environmental Management Act – section 57 was thus applicable-

 

Court also proceeded to interpret section 57 of the EM Act and held that the underlying ‘authorisation’ on the strength of which NMP operated at the time, was the ‘authorisation’ conferred by the granting of the mining licence – which was the ‘underlying authorisation’ in terms of which certain activities, (which were found to be ‘listed activities’), where undertaken at the time of the commencement of the EM Act, but that this ‘underlying’ authorisation was not impacted upon by the provisions of section 57 - but only the ‘authorisation’ to continue to undertake the ‘listed activity’ as defined.

 

The court held further that such interpretation was also founded on the undeniable recognition of the express rights conferred on mining licence holders such as NMP by the Minerals Act, the express procedures set out there for the cancellation of such ‘authority’/licences in which regard also the applicable Constitutional considerations such as property rights needed to be taken into account, all of which militate towards an interpretation that what may be legitimately impacted upon by the provisions of section 57 was the right, or ‘authorisation’ to continue with a ‘listed activity’ without the necessary ECC, which in turn would give recognition to the important environmental policy considerations as listed in Article 95 of the Constitution, as expressed through the EM Act and its provisions.

 

It was held further that it was beyond doubt that no ‘listed activities’ may be undertaken without an Environmental Clearance Certificate in circumstances where – importantly - the legislature has made it clear that this prohibition is to also apply – ‘despite any other law to the contrary’. The criminilisation of the undertaking of a listed activity, unless the person is a holder of an ECC, undersores the seriousness of the legislature to give expression to the here relevant principles of State policy.

 

The court thus concluded that the prohibition to carry out a ‘listed activity’ ‘without an Environmental Clearance Certificate’ was absolute.

 

As NMP, at the relevant time, undertook a ‘listed activity’ and as NMP did not apply validly within the prescribed period of time for an EIA/EMPR and as NMP was in this regard in breach of the applicable terms and conditions of ML170 and in circumstances where NMP had thus merely purportedly applied for an ECC - which application was later granted but then was set aside - it was found that - ultimately NMP was thus without an Environmental Clearance Certificate. The provisions of the EM Act are clear and to the effect that a ‘listed activity’ may – under threat of criminal sanction - not be undertaken without an ECC. Accordingly it was found that NMP, currently, was not entitled to ‘undertake any listed activity’. The sought declaratory relief was thus granted accordingly in the exercise of the Courts discretion.

 

Here the court took into account that the applicants were considered as sufficiently interested parties to afford them locus standi and that they had also established ‘a sufficiency of interest’ in regard to the subject matter of the litigation. All parties would also be directly affected by the decision. The outcome of the matter could thus also not be considered abstract, hypothetical or academic. A ‘tangible and justifiable advantage’ for the fishing industry and the environment would flow from the granting of the sought declaratory relief and where there would also be a measure of ‘utility’ in the orders that will flow from these proceedings.

 

Finally the court excercised its discretion to grant declaratory relief also on the ground that this would be in the interests of justice – which interest was underscored by the immense public interest in the matter and the environmental issues at play -

 

Summary: The remaining facts appear from the judgment.

 

 


ORDER


 


a)           

The sixth respondent (NMP) - not having applied in the prescribed manner for an environmental clearance certificate during the relevant time – and – currently – in any event being without an Environmental Clearance Certificate - is hereby  declared -  in accordance with the provisions of section 57 as read with sections 27(1) and (3) of the Environmental Management Act, 7 of 2007 - not to be entitled to undertake a ‘listed activity’ until such time that it has obtained a valid Environmental Clearance Certificate in relation to such activity or activities,

 


b)           

The application to strike succeeds with costs.

 


c)           

The applicants are to bear such costs jointly and severally, the one paying, the others to be absolved, such costs to include the costs of two instructed- and one instructing counsel;

 


d)           

NMP is to pay the remainder of the costs of this application, such costs to include the costs of three instructed- and one instructing counsel.

 


JUDGMENT


GEIER, J

 

Introduction

 

[1]        Namibia Marine Phosphate Pty Ltd, the 6th respondent herein, wishes to engage in marine phosphate mining through its ‘Sandpiper Project’. It wishes to do so in an area located off the Namibian coast, situated in the Atlantic Ocean approximately 120km’s south southwest from Walvis Bay and roughly 40 to 60 km’s west of Conception- and Meob Bay.

[1]

 

[2]        For this purpose it has secured the appropriate mining licence, ML 170. The mining licence area is 25.2 km wide, (greatest width), and 115km long, (longest length), which covers an area of 2233 km2.

[2]

 

[3]        The envisaged mining activities will occur offshore through the dredging of phosphate enriched sediments in water depths of 190 to 275m in the target mining areas, described as Sandpiper-1 (SP-1).

 

[4]        Three target recovery areas have been selected within the total mineral resource area, two of which are 22 x 8 km in size and one 11 x 6 km’s, totalling 418km’s2. Approximately 3 kms2 of the resource will be mined in the selected target recovery areas annually over the 20 year licence period in order to achieve the targeted 3Mt pa dry product production target.

[3]

 

[5]        It is thus expected that up to 60km2 of the sea bed will be dredged during the 20- year licence period.

 

[6]        A ‘Trailing Suction Hopper Dredger’ will be deployed for this purpose.

 

[7]        This dredger will apparently be on site three times a week.

 

[4]

 

[8]        The main project elements are:

 

‘a)        Dredging annually 5.5 Mt of phosphate enriched marine sediments from 190 to 275 m water depths;

 


b)           

Transporting this ‘slurry’ in the dredger to an offshore discharge buoy – pipeline (approximately 1.2 km offshore) and pumping the material to a coastal buffer pond, located to the south of the Walvis bay salt works;

 

c)         Reclaiming the slurry from the buffer pond and screening out the shell fraction;

 

d)         Pumping the slurry along a 26 km pipeline to the processing plant located 5km’s to the east of Walvis Bay;

 

e)         Processing (washing) the slurry to separate the rock phosphate from the fines, and

 

f)          Exporting the rock phosphate to international destinations through the port of Walvis Bay.

[5]

 

[9]        The mining licence area is located within the Northern Benguela of the Benguela current Large Marine Ecosystem, on the outer shelf to the south west of Walvis Bay. The Benguela displays a high degree of variability over a broad spectrum of time and spatial scales. It is an important centre of marine biodiversity and marine food production. Its distinctive bathymetry, hydrography, chemistry and trophodynamics combine to make it one of the most productive ocean areas in the world. This high level of primary productivity of the Benguela supports an important global (and local) reservoir of biodiversity and biomass of zooplancton, fish, seabirds and marine mammals, while near- shore and offshore sediments hold rich mineral deposits. These living and non-living resources are of economic and strategic importance to Namibia.

[6]

    

 

Further Background and chronology of events leading to this application

 

[10]      These and the ‘annual developments’, which occurred over a number of years, where conveniently sketched in the applicants heads of argument on the basis of the 6th respondent’s version set out in the main answering affidavit.

 

[11]      A number of abbreviations where utilised by counsel for both parties in their extensive heads of argument filed in support of the parties’ cases. As it is considered helpful to adopt and utilise them also in this judgment I will proceed to set them out first:

 

‘EC : the First Respondent :  the Environmental Commissioner;

 

NMP : The Sixth Respondent ;

 

ECC :  Environmental Clearance Certificate;

 

EIA : Environmental Impact Assessment; 

 

EMPR : Environmental Management Plan Report; 

 

EMP : Environmental Management Plan;

 

ML 170 :  the Mining License No. 170;

 

MET : Ministry of Environment and Tourism;

 

MME : Ministry of Mines and Energy;

 

MFMR : Ministry of Fisheries and Marine Resource;

 

EM Act : the Environmental Management Act, 2007; 

 

The Minerals Act : The Minerals (Prospecting and Mining) Act, 1992.’

 

[12]      When it then comes to the said chronology leading to this application the following developments where considered most relevant :

 

‘2010:

 

NMP appointed environmental practitioners who commenced with preliminary processes for the EIA. 

[7]

 

2011:

 

NMP appointed the environmental practitioners who would oversee the EIA/EMPR process to be conducted in accordance with the provisions of the Act and Regulations (which were at the time in draft form) and conducted environmental activities as required. 

[8]

 The mining licence was granted on 26 July 2011 and NMP commenced scoping and public consultation as well as consultation with MFMR. 

[9]

  On 15 December 2011 the scoping report including comments from the public was submitted to the Environmental Commissioner. 

[10]

           

2012:

 

On 12 January 2012 NMP submitted a draft EIA/EMPR to MET, MME and MFMR and opened it to the public for comments. 

[11]

  On 11 April 2012 NMP submitted its final EIA/EMPR to the Permanent  Secretary of the MET and provided a copy to the Mining Commisioner.