WINDHOEK – The Ministry of Mines and Energy and the Mining Commissioner of Namibia have successfully staved off an attempt through a Supreme Court appeal, by a mining company that would have compelled them to accept an application for exclusive prospecting licenses.
Chief Justice, Peter Shivute, of the Supreme Court in agreement with justices Strydom and O’Regan dismissed the appeal of Black Range Mining against a judgment in the High Court. The mining company applied for two prospecting licenses in the Karibib district in 2009, but was denied because of a moratorium that was in place at the time on “prospecting operations and mining operations in respect of nuclear fuel minerals.” Black Range Mining then launched an application in the High Court citing the Minister of Mines and Energy and the Mining Commissioner as respondents.
In the initial application the company applied for an order declaring the decision by the minister not to accept the applications null and void, alternatively reviewing and setting aside the decision, and directing the minister to accept the applications. It also applied for costs. After the minister and the mining commissioner opposed the application the high court heard arguments and the application was dismissed with costs. Black Range Mining then appealed the high court decision in the Supreme Court.
However, the appeal was not lodged according to Supreme Court rules.
The Chief Justice made mention of this and said that it is of grave concern that of late nearly every appeal being heard in the Supreme Court is accompanied by an application for condonation. He advised legal practitioners intending to practice at the Supreme Court to familiarise themselves with the rules of the Supreme Court. In the High Court matter, the court found that the ‘notice’ was valid and since Black Range Mining did not challenge the validity of the ‘notice’ to prohibit any prospecting or mining, it could not be granted the relief sought. In their judgment the justices of the Supreme Court agree with the High Court decision. They said that in the absence of a direct challenge to the validity of the notice, such notice exists in fact and has legal consequences that may not be overlooked.
In fact, the justices said the minister should not be ordered to receive EPL applications during the period that the notice is in existence. The appeal was then dismissed with costs to include one instructed and two instructing counsels. Black Range Mining was represented by Advocate Reinhardt Tötemeyer on instructions of Koep and Partners and the minister by Advocate Gerson Narib on instructions from the Government Attorney.
By Roland Routh