Hertta-Maria Amutenja
Chinese lithium mining company, Xinfeng Investments which filed an urgent application with the High Court earlier this month to challenge a decision by the Minister of Mines and Energy, Tom Alweendo, to revoke its mining license is claiming he has no right to do so.
“In respect of the question of balance of convenience, the minister has no power to revoke a decision in respect of which he is functus officio. He can therefore not rely on a decision which he made without jurisdiction hence illegality – in contending that the balance of convenience favours the refusal of the interim interdict,” the court documents filed in the application reads.
Alweendo had revoked Xinfeng’s license, which was issued in September last year, citing misleading, untrue, and incorrect information submitted by the company during the application process.
However, the mining company which claims to have so far invested N$200 million and to have employed more than 200 Namibians, has denied the claims made by the mining minister and provided clarification regarding the reports that were submitted in error.
“It has also informed the ministry of the error it made. The reports submitted in error would never have been material which was considered by the Minister as the Ministry was informed of the error. The correctly submitted report does not include any fraudulent information. Where it refers to submissions or opinions by others, that are in accordance with the practice of referring to the work of others on matters relating to mining exploration. In view of the aforesaid, we submit that no fraud was proved by the Minster,” read the documents.
Alweendo claimed the lithium mining company made fraudulent and misleading statements and used plagiarised material when it applied for a mining licence.
The minister also claimed that before he took the decision to revoke the license, he, by a letter dated 16 February 2023 informed the mining company that the technical report and the reports regarding exploration work, mineral resources and mining methods were copied from the work of others. “We submit that the decision of the Minister to grant ML243 is vitiated ab initio by the applicant’s fraud, because the applicant put up works of others as its own, particularly on matters such as exploration work, mineral resource estimate and mining methods, which are matters the Minister had to take into account before he granted ML243. It is trite that fraud unravels everything, and the Minister could not in the circumstances be said to be functus officio. The applicant was then called on to make representations to the Minister as to why the decision to grant ML24 should not be revoked,” the minister stated. According to documents Xinfeng made both written and oral representations, regarding the intention to revoke t
he decision to grant ML243.
The minister argued in his documents that none of the reports the mining company claims to have submitted carried a date so it was difficult to establish when the report was submitted.
“According to the applicant on 15 June 2022 it submitted the corrected and final report, yet it failed to provide proof of such submission,” he stated.
In addition, the minister claimed that it cannot be said that he was misled and persuaded to act against his better judgment, considering the fact that he was aware of the falseness of the report before making a judgment.
“More crucially, the minister claimed that the committee occasionally put applications on hold while it took into account several issues. Thus, it is evident from the Minister’s own narrated events that even if fraud existed (which is denied), all of these facts were genuinely known to the Ministry (and him) at the time the application was being considered in accordance with sections 48 and 92 of the Act. Therefore, it cannot be said that the Minister was misled and persuaded to act against his or her better judgment,” the documents read
The mining licence was to run until 2042. The case was postponed to 2 June for delivery of judgment.
