Administrative Action

Namibian Marine Phosphate (Proprietary) Limited v Minister of Environment and Tourism and Others (CA 119/2016) [2018] NAHCMD 122 (11 May 2018);

Flynote: 

Statutory Appeal - Section 51(1) of the Environmental Management Act, 7 of 2007 - on points of law only - Meaning - Whether grounds of appeal are based on points of law.

Constitutional law — Fundamental rights — Administrative justice —Failure to invite one of the parties to a dispute to the appeal hearing— fundamentally unfair hearing — Violation of arts 12 and 18 of Constitution.

 

Headnote and Holding: 

 

The appellant was granted an environmental clearance certificate for marine phosphate mining by the Environmental Commissioner. The second respondent, a certain Mr Michael Gaweseb, appealed against the Commissioner’s decision, to the Minister. The Minister set aside the granting of the certificate, primarily on the ground that the Commissioner did not adequately consult the public and interested persons.

During the appeal hearing before the Minister, both parties had made written representations. The second respondent completed the appeal Form 3 which was also handed to the appellant and the appellant subsequently, delivered a responding statement thereto. On the day of the hearing, the Minister gave the second respondent an opportunity to make oral submissions, but, the appellant was not informed of the appeal hearing and was thus not present at the appeal hearing. During those submissions, the second respondent introduced a new issue – inadequate consultations, but this issue was not recorded as a ground of appeal on the appeal Form 3 and therefore the appellant had no knowledge of it.

Aggrieved by the Minister’s decision to set aside the environmental clearance certificate which was issued to it by the Commissioner, the appellant appealed, in terms of s 51 of the Act, to this Court against the Minister’s decision. The appellant’s attack on the Minister’s decision was that there was no proper appeal for the Minister to consider, the second respondent had no locus standi to appeal to the Minister and the Minister violated the appellant’s right to a fair hearing and fair administrative action. The Minister and the second respondent opposed the appeal on a variety of grounds. The main ground on which they opposed the appeal is that the appellant’s appeal was allegedly not based on points of law only, but on factual matters.

Held that the second respondent’s appeal before the Minister was compliant with the Regulations made under the Environmental Management Act, 2007.

Held further that in a constitutional State, citizens are entitled to exercise their rights and they are entitled to approach courts, where there is uncertainty as to the law to determine their rights. The court thus found that, in the context of the Act, Mr Gaweseb has a legal grievance and is as such, an aggrieved person entitled to approach courts to determine his rights.

Held further that it is now well established in our law that an administrative act or decision, even if improperly taken, remains effectual until properly set aside and cannot just be ignored. Since the Minister extended the time within which to launch the appeal and the decision to extend the period within which to lodge a s 50 appeal is not the subject of a review application, that decision remains and the appeal was thus lodged within the extended period.

Held furthermore that the question whether or not the s 51 appeal hearing before the Minister violated the appellant’s rights conferred on him by Articles 12 and 18, is a question of law.

Held furthermore that if the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.

Municipal Council of Windhoek v Claudia Properties CC and Another (A 117/2010) [2014] NAHCMD 332 (14 November 2014);

Headnote and Holding: 

The court considered an application for a mandamus by the applicant, as a result of the respondents having applied for the consolidation and rezoning of 2 plots of land. The respondents had their application conditionally approved upon submitting an engineer’s drawing for the erection of retaining walls as part of flood protection and to create 54 client accessible parking bays. 

The court considered if there was a contravention of s 44(5) of the applicant’s town planning scheme in accordance with the Town Planning Ordinance No 18 of 1954 as amended. Without drawing plans being submitted to the applicant for approval, the respondents admitted that a temporary corrugated iron wall was erected on the riverbank which was next to the two properties. On their own admission, the respondents did not create the 54 accessible parking bays. 

The court found that the respondents failed to adhere to the condition of their approved application, so they were ordered to remove the illegally constructed corrugated iron wall, to submit an engineer’s drawing for the erection of the retaining walls to be constructed on the properties, within three months of the order. They were also ordered to construct the retaining wall within six months from the date of the approval by the applicant of the engineering drawing, as well as to remove all building materials and rubble from one plot in order to create 54 accessible parking bays on one of the properties. Respondents were ordered to pay applicant’s costs.

Minister of Mines and Energy and Others v Petroneft International Ltd and Others (SA 32/2011) [2012] NASC 5 (21 June 2012);

Headnote and Holding: 

This was a Supreme Court case that revolved around an agreement between the parties which was suddenly terminated. The agreement demanded that the respondent to import oil resources on behalf of the Government of Namibia. The arrangement proved to be failure as the cost of importing petroleum was high against the market price. Consequently, the first appellant, acting in ministerial capacity decided to end the agreement.  The first respondent felt aggrieved and filed a suit in the High Court, asking it to review the decision of the cabinet that terminated the said contract.

As such, the main issue, in this case, was whether the cabinet of the government of the Republic of Namibia acted lawfully when it revoked the mandate of the respondents to import petroleum products.  The High Court in determining this issue held that the cabinet had no legally tenable reason(s) to end the contract in question.

However, on appeal, the Supreme Court held that under the Namibian Constitution in article 27(2), the executive power of the Republic of Namibia vests in the president and the cabinet. It further held that under the article, the cabinet has the role of supervising the activities of the government departments.  Since the third, fourth, fifth, and sixth respondents are government parastatals the cabinet justifiably exercised its regulatory powers in the best interest of the Namibian people. 

The Supreme Court thus overturned the decision of the High Court and accordingly upheld the appeal.

Hepute and Others v Minister of Mines and Energy and Another (SA5/2007) [2008] NASC 16 (31 October 2008);

Headnote and Holding: 

This was an appeal to the Supreme Court against the judgment of the High Court that ordered the appellants to pay security for the costs of the second respondent. The second respondent had opposed an application brought against it by the appellants in the High Court challenging the renewal of an exclusive prospecting licence (EPL 2101) issued by the first respondent in terms of the Minerals (Prospecting and Mining) Act 33 of 1992. The second respondent then filed an application for security in terms of Rule 47(1) as read with Rule 47(3) of the Rules of the High Court, on the basis that the appellants were persons of no or insufficient means to meet an adverse costs order in their main application and further that the appellants were fronts for parties who had been involved in prior litigation with the second respondent.

The Supreme Court relied on various authorities and emphasised that a court of appeal should not interfere with the exercise of the lower court’s discretion. The court saw no basis on which to interfere with the decision of the High Court that the appellants were persons of straw and that they had been put up as a front for others engaged in prior litigation with the applicant. The appeal was dismissed with costs and the second respondent was awarded the wasted costs occasioned by the abandonment by the appellants of the application in terms of Rule 18 of the Rules of the Court.