Hertta-Maria Amutenja
In a landmark judgment delivered by High Court Judge Eileen Rakow, the decision by the Minister of Mines and Energy, Tom Alweendo, to cancel a fuel retail license has been declared unlawful and contrary to the provisions of Article 18 of the Namibian Constitution.
The ruling, following a review application brought by Gochas Lewende Hawe Agente CC against the Minister of Mines and Energy, highlights the limitations of Alweendo’s authority and the legal grounds upon which the fuel retail license was revoked.
The license was revoked on 15 March 2022.
Judge Rakow said the powers of the Minister are circumscribed by statute, and any action taken must align with the authority conferred by law.
She found that the initial notice forwarded by the Minister was vague and did not indicate the cause of the complaint and therefore contrary to the law.
“The Minister is an official and as such his powers are limited by statute and he can only do what he has authority to do according to the statute. He therefore cannot exercise power and perform functions beyond that conferred upon him by law and can only do what he is legally empowered to do,” Rakow stated.
The judgment highlighted procedural irregularities in the Minister’s decision-making process.
Notably, the initial notice provided to the license holder failed to specify the particulars of the alleged contravention, contravening regulation 31(3)(a)(i) of the Petroleum Products Regulations.
According to the judgment, the lack of specificity rendered the notice inadequate for the license holder to make meaningful representations.
Furthermore, Rakow said the decision to cancel the retail license was made under Regulation 30, which does not provide for such cancellations but is intended solely for amendments.
This deviation from prescribed procedures tainted Alweendo’s decision, as no reasons were provided for the cancellation, thereby infringing upon the principles of administrative justice enshrined in Article 18 of the Namibian Constitution.
Addressing a critical issue, Rakow highlighted the failure of the Minister to consider the continuity of the licensed premises.
Despite changes in ownership and management, the fuel license remained associated with the same premises, indicating no change of address.
“The biggest issue, however, is that the fuel license is still on the same premises. This was the address on the fuel license from before the time that it was owned by the applicant and in effect no change of address took place. The Minister failed to take this specific issue into account.” Rakow noted, highlighting the oversight in the Minister’s decision-making process.
