Minerals, oil and gas

Luxury Investments One Hundred and Ninety Two (Pty) and Another v Koujo and Others (HC-MD-CIV-MOT-REV-2017/00411) [2018] NAHCMD 390 (28 November 2018);

Flynote: 

Practice – Judgments and orders – Application for stay of execution of judgment pending appeal to Supreme Court – Court having jurisdiction to determine matter in terms of its inherent jurisdiction where dictates of real and substantial justice required it.

Headnote and Holding: 

The first respondent filed a notice of appeal to the Supreme Court against the orders and judgment of this court dated 20 August 2018 wherein the court granted the applicant’s conditional counter-application. Shortly after the filing of the appeal by the first respondent, the applicants thereafter launched an application for leave to be granted to put the order dated 20 August 2018 into operation pending the appeal process.

In support of the application, a detailed founding affidavit deposed to by Mr. van der Plas was filed together with a number of supporting affidavits. The application was duly opposed by the first respondent and an answering affidavit of Mr. Koujo was filed in support of this opposition.

The crisp question for determination in the matter in casu is thus whether on the facts at hand, a proper case is made out to grant leave to put the order to execute the judgment into operation pending the appeal process.

This rule was premised on a principle of the common law to the effect that the noting of an application for leave to appeal, suspended the ‘execution’ of the order. Applications for leave to execute judgments of this court pending appeal, are governed by the provisions of Rule 121 (2). Rule 121(2) of the Rules of the High Court.

Mr. Heathcote argued on behalf of the applicants that the first respondent did not put up any case for potential of irreparable harm or prejudice and leave to execute should be granted. He pointed out that the first respondent, apart from a sweeping statement by the first respondent that he will suffer ‘massive and irreparable harm’, he failed to advance a single primary fact for such a statement.

Mr. Heathcote submitted that in contrast with the first respondent, the applicants made out a clear case for ‘massive and irreparable harm’ or prejudice should leave to execute be refused. He submitted that this was factually demonstrated in the founding affidavit of Mr. van der Plas.

Mr. Namandje contended that the applicants’ case is based on the wrong assumption that the judgment of this court in August 2018 resulted in a restoration of the first and second applicants mining claims. He argued that the applicants are defending this court’s acceptance of the irregular affidavit filed after close of pleadings and in which affidavit the third respondent stated under oath that the first applicant’s application for mining claims were still under consideration. However, he argued that whether or not the mining claims were granted, the fact remains that the cancellation of the first respondent’s claims was reviewed and set aside and the order on the counter application did not put any life in the alleged claims of the first applicant as the matter was simply referred back to the decision-maker.

It was argued that the majority of the allegations made on behalf of the applicants relates to the prejudice or irreparable harm to be suffered by the second applicant but that the second applicant as already alluded to did not apply for mining claim not does it have any. The allegations of prejudice and irreparable harm are therefore irrelevant and thus inadmissible.

It was further argued that the first respondent duly applied for mining claims and was granted such mining claims. Third parties were contractually recruited to undertake mining activities and it would suffer irreparable harm and prejudice if the first respondent were dislodged from the mining area, while awaiting the outcome of the appeal to the Supreme Court. Mr. Namandje submitted that it would be against all notions of justice if the first respondent were to be denied the right to undertake its mining activities when he has filed an appeal as the appeal enjoys excellent prospect of success.

Held – From the onset, there is very little contained in the answering affidavit of the first respondent in opposition to the application. In the answering affidavit of the first respondent, he indicated that he will suffer irreparable harm if the application is granted in favor of the applicants. The first respondent did not elaborate on the nature of or the potentiality of irreparable harm or prejudice.

Held – No documentation was presented to this court as to the nature of the potential prejudice or harm that the first respondent will suffer.

Held further – It not apparent how and why the respondent will be severely prejudiced should execution be granted. If the Wightman case is applied to the facts of this matter, there is clearly no real, genuine and bona fide dispute of fact that exists as the first respondent who raised the dispute in his answering affidavit did not address the facts said to be disputed.

Held – A court dealing with an application for leave to execute must caution itself against the temptation to deal with the application as if it was the appeal court, for this would have the undesirable effect of pre-judging the outcome of the appeal.

Held further – In my view, counsel for the first respondent remained unable during the hearing to demonstrate that there are prospects of success on appeal on the grounds raised. I do not believe that another court might come to a different conclusion on the grounds raised.

Fish Orange Mining Consortium (Pty) Ltd v !Goaseb and Others (CASE NO: I 582/2010) NAHCMD 154 (08 June 2018);

Flynote: 

Civil Procedure – application for absolution from the instance –   Rules of Court - Rule 100 – principles governing the application discussed – requirement for absolution from the instance - whether or not the plaintiff set out a prima facie case  – Law of Evidence - whether failure to examine an expert who has filed his report results in the court attaching no value to the expert report – commercial value attached to the Exclusive Prospecting Licence – court’s discretion on how the value of the EPL License is computed. 

Headnote and Holding: 

The plaintiff sued the defendants for payment of an amount of N$ 5 Million. The amount claimed is in respect of the plaintiff sustaining  damages as a result of the unlawful and wrongful transfer of a exclusive prospecting  licence (E.P.L.) caused by the 1st and 2nd defendants to the 3rd defendant. At the close of the plaintiff’s case, the 1st and 2nd defendants brought an application for absolution from the instance on the following grounds - first, the defendant submitted plaintiff failed to lead admissible evidence of an expert to prove that the EPL has some commercial value which would in turn prove the amount of damages allegedly suffered by the plaintiff.  The second point of argument related to the laws relating to the issue of extraction of minerals and that the plaintiff did not have the licence to mine and remove the minerals for sale.

Held:   That the plaintiff had led evidence to suggest that the transfer of the licence by the said defendants was unlawful.

Held further: That the plaintiff did place evidence before court by an expert regarding the value of the E.P.L. (subject to certain safeguards) and that the court was not entitled to disregard that evidence merely because the said expert was not examined, considering that his report was admitted by the consent of the parties. 

Held: That the E.P.L. does have some commercial value and it is the duty of the court, subject to hearing the evidence of the defendants, that has to decide what damages, if any, had been proved by the plaintiff.

Held further that: The awarding of damages is primarily the duty of the court and not that of the expert witness.  

Held: That the plaintiff had succeeded to meet the threshold of absolution from the instance, namely that it had adduced evidence upon which a court acting reasonably may find for the plaintiff.

The application for absolution from the instance was thus refused with costs and the defendants were ordered to open their defence.

S v Mbali (No Case Number) [1990] NAHC 391 (27 March 1990); 1990 NR 1 (HC)

Headnote and Holding: 

The matter dealt with an application by the state to recall witnesses in a trial in which the accused stood charged in the main count with theft of diamonds, or alternatively with possession of diamonds in contravention of Proclamation 17 of 1939. The court had dismissed the main charge on the basis that the link between the objects which were found in possession of the accused, and which were ultimately valued and identified as rough and uncut diamonds, did not exist. However, the state relied on the alternative and requested the court to recall witnesses to prove that these objects were in fact rough and uncut diamonds.

The main issue was whether it was necessary to recall witnesses for the fair adjudication of a case.

The court stated that where the evidence of a witness was necessary for the fair adjudication of the case, the court was obliged in terms of s 167 of the Criminal Procedure Act 51 of 1977 to recall that witness or those witnesses.

The court established that the evidence was necessary for the fair adjudication of the case between the State and the accused, in the sense that a person who was guilty on that charge might be acquitted but that the giving of such evidence would not lead to an innocent person possibly being found guilty.

The court, therefore, held that the evidence was essential for the fair adjudication of the case and granted the application by the state.

Rostock CC and Another v Van Biljon (I 844/2010 ) [2011] NAHC 259 (14 June 2011);

Headnote and Holding: 

In this case the court provided reasons for granting an interlocutory application to prohibit the respondent from mining on private land pending the outcome of an action for eviction of the respondent.

The applicants alleged that the respondent breached his obligation to rehabilitate the land and provide suitable accommodation for the employees. The court observed that the respondent’s replies to these two aspects were bizarre and that the applicants had made a strong case for cancelling the agreement. Consequently, the court held that the relief sought was justified on the merits of the case.

The court went on to observe that, based on the application of the doctrine of res litigiosa (subject of a pending action) according to Namibian law. The court observed that the right to mine generally fell within the meaning of alienating property as per the common law principle of res litigiosa. However, the provision in the Minerals Act provided that the plaintiff in a pending action for delivery of the res (property) would not automatically become entitled to an interdict against the miner.

The court applied the Webster v Mitchell test as read with the provisions of the Minerals Act. Consequently, it held that even if it was open to some doubt that the mining agreement was validly cancelled, the applicant became entitled to an interdict, with no need to comply with the further requirement to obtain an interim interdict.

Accordingly, the court was satisfied that the applicant was entitled to the relief granted.

Otjozondu Mine (Pty) Ltd v Purity Manganese (Pty) Ltd (A 140/08) [2011] NAHC 8 (26 January 2011);

Headnote and Holding: 

This matter dealt with a dispute as to whether there was illegal mining by the respondent on the applicant’s exclusive prospecting licence.
The High Court considered whether expert evidence was required to establish a cause of action. The relevant test was whether a witness proffering an opinion is competent to give one on the matter in dispute. In this case, the court considered that only a land surveyor would be competent to determine the precise boundaries of disputed land. The applicant’s witness was a geologist and not a land surveyor. Accordingly, the court held that expert evidence of a land surveyor was necessary and failure to present it was fatal.
The court also considered whether it was permissible for the applicant to introduce new evidence in the replying papers. The court relied on the principle that in motion proceedings the affidavits constitute both the pleadings and the evidence. Furthermore, the applicant could not substitute a different claim in the replying papers. Accordingly, the court did not consider the evidence of the land surveyor tendered by the applicant during motion proceedings.
Finally, the court considered whether to impose a special costs order against the applicant on the scale as between attorney and own client. The principle followed was that punitive costs should only be awarded in exceptional circumstances. The court considered that there was no demonstrable reprehensible conduct by the applicant. Accordingly, the costs only include the costs of one instructing and one instructed counsel.

S v Birovsky (CA 08/2010) [2010] NAHC 156 (19 October 2010);

Headnote and Holding: 

This was a criminal appeal on the sentences imposed for unlawful possession and import of rough and/or uncut diamonds.

The appellant’s counsel submitted arguments in support of additional grounds of appeal that were not entertained. The court applied the rule that a notice of appeal should clearly set out the grounds of appeal.

The court considered whether the magistrate erred by failing to adequately take into account that the appellant was a first offender, the limited value of the diamonds, the forfeiture of the diamonds, and that the appellant co-operated with the police investigation. The court was satisfied from the contents of the judgment on sentence that the magistrate considered the personal circumstances of the appellant. The court also held that forfeiture was not a mitigating factor since the appellant had no recognisable right in law in the articles forfeited.

The court also considered whether the magistrate overemphasized the seriousness of the offence. It was held that the magistrate was entitled to place the seriousness of the offence and the interest of society when sentencing, due to the potential prejudice of the Namibian Government losing its International trading licence in diamonds.

The court noted that sentencing was a discretionary power. It applied the rule that that an appeal court should not alter discretionary decisions unless the difference between its sentence and the trial court’s is so great to infer that the trial court acted unreasonably. The court held that such a disparity did not exist and dismissed the appeal.

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 ([P] A 04/2007) [2009] NAHC 40 (19 January 2009);

Headnote and Holding: 

This was a consolidated case where the court dealt with the issue of delay in instituting review of the decision of the minister of mines and energy to refuse the renewal of an Exclusive Prospecting Licence (EPL). 

The court considered the issue of delay and not the merits of the refusal to renew licence. The court applied the rule in Disposable Medical Products v Tender Board of Namibia 1997 NR 129 HC where the court held that an inquiry to determine ‘reasonableness’ should be factual and the court can only exercise its discretion after making a conclusion that the delay was unreasonable. The court also considered the scope and object of the Minerals (Prospecting and Mining) Act, No 33 of 1992 with regard to compliance with specific timelines. 

The court held that the delays occasioned by the applicants were unreasonable and the explanations in both applications were unsatisfactory for the court to apply its discretion. Accordingly, both applications were dismissed with costs.

Tumas Granite CC v Minister of Mines and Energy and Others ( (P) A 2328/2006) ((P) A 2328/2006) [2008] NAHC 141 (24 June 2008);

Headnote and Holding: 

The matter dealt with an application for review of a decision by the first respondent to grant a reconnaissance licence to the second respondent. The issue for the court’s consideration was whether it was permissible to grant an exclusive reconnaissance license to a non-holder of a reconnaissance license and whether a side note in a statute could be used in the interpretation of a statutory provision.

The applicant conceded that in terms of section 59(1)(a) of the Minerals Act, they were not a holder of a reconnaissance licence and therefore could not have applied for an exclusive reconnaissance as required by that section but contended that an exclusive reconnaissance licence was competent under  section 62(1) of the act.

The court in dismissing the application decided that ss 59 to 62 complemented each other. The court cited Chandler v DPP which held that side notes cannot be used as an aid to the construction of legislation as they are mere catchwords inserted by the draftsman and not the legislator. Therefore the notion that the marginal note to s 59 held that the section only deals with exclusive reconnaissance licences was immaterial.  The court held that the language of s 59(1)(a) instead demonstrated that an ordinary reconnaissance  license could not be issued under s 62(1), unless it was first granted under s 59(1)(a) and ruled that only the holder of a valid reconnaissance license may apply for an exclusive reconnaissance license under s59(1)(b).

Auas Diamond Co (Pty) Ltd v Minister of Mines and Energy (PA220/05) [2006] NAHC 57 (30 November 2006);

Headnote and Holding: 

The matter dealt with an application to review the minister’s refusal to renew an exclusive prospecting license (EPL) for the applicant. Such a license would ordinarily be granted for an initial period of three years and thereafter could be renewed for not more than two successive periods.The applicant held a license from 1997 to 2000 and thereafter sought a renewal which was granted in 2001. However, the second application to renew was denied prompting the applicant to question the validity of the first renewal, The applicant argued that the acceptance of the renewal was done by an unauthorised individual acting outside his mandate and it should therefore be set aside.

The court considered the validity of the first renewal and held that since the initial renewal was by an unauthorised individual, it was void. Consequently it was immaterial whether the minister granted or refused the second application. The court decided further that section 48 of the Act mandates an applicant to accept the terms and conditions of a renewal within one month, failing which the application would be deemed to have lapsed. Consequently, the initial acceptance was ruled to be void because the application for a first renewal had lapsed. 

Therefore, the court concluded that because the substance of the applicant's application for review rested on the respondent's refusal of the second renewal of the EPL, that second renewal could not have been granted or refused, because the EPL had already expired and was never legally renewed.

Uris Safari Lodge (Pty) Limited v Weatherly Mining Namibia Limited and Others (A 284/2013) [2014] NAHCMD 266 (11 September 2014);

Headnote and Holding: 

This case concerned parties who had competing interests (one being a luxury tourist lodge and the other one was a copper mine) over the same piece of land. They were undergoing litigation, which included a pending action before another court, in which the first and second respondent were seeking the eviction of the applicant from the property which they sold to the applicant in 2002. 

The court considered an application to review and set aside a decision to grant the second respondent an environmental clearance certificate, as well as an interdict restraining them from taking any further action from using the mining rights already granted.

The applicant had earlier stated that they would launch urgent proceedings once they become aware that first and second respondent intend commencing mining activities. However, subsequent communication showed that there were no imminent mining activities. On this basis, the court found that the matter was not inherently urgent, and the application was therefore struck from the roll.