Natural Justice

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.

Wildlife Ranching Namibia v Minister of Environment and Tourism (A 86/2016) [2016] NAHCMD 110 (01 April 2016);

Headnote and Holding: 

This case interpreted the requirements to qualify for exemptions in s. 47(1) of the Nature Conservation Ordinance of 1975 that allow for the sale of game or game meat or the skins of game which is obviously under the age of one year.

The applicants sought to review a decision by the minister of environment and tourism that revoked and altered the terms of the gaming certificate issued for Erindi farm. The permit was altered to include that it did not apply to game kept in enclosures smaller than 1000 ha. The court found that in doing so, the minister equated the phrase ‘piece of land’ in s. 47(1) (ii) with the phrase ‘enclosure’. This consequently subjected ‘a farm’ to the same requirement governing ‘a piece of land’.

The court noted that not every piece of land in Namibia was a farm. It was held that the respondents’ interpretation of s. 47(1) exemptions was far-fetched. The court held that farms were required to be enclosed with a game-proof fence to qualify for the exemption while a piece of land required the land to be 1000 hectares and be enclosed with a game-proof fence. The court observed that Erindi farm was enclosed with a game-proof fence and should not be subjected to other requirements.

It was also held that the first respondent acted unlawfully for failing to give the applicants an opportunity to be heard.

Accordingly, the respondents were interdicted from enforcing the alterations in the certificate.

Minister of Mines and Energy and Others v Black Range Mining (Pty) Ltd (SA 18/2009) [2010] NASC 7 (15 July 2010);

Headnote and Holding: 

This Supreme Court case revolved around exploration prospecting licenses (EPL) provided by the first appellant, to the second appellant and the respondent over different mining groups of nuclear resources but in the same land. 

At the High Court, the respondent challenged the first appellant’s action (the responsible minister) for giving prospecting and mining rights to another company over an area that the respondent had an EPL agreement to operate in. The High Court had quashed the first appellant’s decision in favour of the second appellant, asserting that the first appellant in offering the EPL agreement to the second appellant did not consider the interest of the respondent as required per sections 68(h) and 69(2)(c)(i) of the Minerals (Prospecting and Mining) Act of 1992. Aggrieved, the appellants appealed. 

On appeal, the main issue for consideration was whether the first appellant was justified to issue EPL over an area that the respondent had pre-existing EPL. The  Supreme Court upheld the decision of the High Court stating that the first appellant was duty-bound to take into consideration the provisions of ss 68(h) and 69(2)(c)(i) of the act which requires regard to be given on what impact will the additional activities have on the existing EPL holders. The Supreme Court held that natural justice requires that a hearing must be given to the person(s) already holding EPL over an area likely to be affected with subsequent EPLs. In conclusion, the Supreme Court upheld the High Court decision and dismissed the appeal with costs.