2023-05-10Eveline de Klerk Eveline de KlerkRoland RouthThe mines ministry’s decision to first declare a Chinese mining company’s licence as satisfactory before abruptly cancelling it days later, has caused the company to seek the court’s intervention. The ministry yesterday morning had to cancel a press conference hours before it was due to start, organised to explain their sudden about-turn, because Xinfeng Investment decided to take them to court.The communities in the Daures constituency, where Xinfeng is active, alleged the company is carrying out illegal lithium mining in Uis, and that their request to stop these activities had fallen on deaf ears.Traditional authorities in the area this week told a parliamentary standing committee that the mines ministry does not regulate the companies mining or exploring in the area, and their hands are tied as they do not have the capacity to do so themselves. Xinfeng’s spokesperson Aqisha Jooste yesterday issued a statement, saying: “We firmly believe that the decision to ‘revoke’ our licence is unjust, unfounded and goes against the principles of transparency and due process. “Yesterday, we took the necessary legal action to challenge this decision. The court papers were already served on the relevant parties yesterday. The case is now registered with the High Court of Namibia.“We assure our partners, stakeholders and the public that we are committed to upholding the rule of law, and preserving our reputation as a responsible corporate entity. We have full faith in the Namibian judiciary system to ensure a fair and just resolution.“During this time, Xinfeng will continue to engage with our partners and stakeholders, working diligently to minimise any potential disruptions to our business operations. Our primary focus remains on fostering economic growth, social progress and sustainable development in Namibia and the region.“We are confident that our dedication to the principles of transparency, corporate governance and sustainable development will ultimately be recognised, and we look forward to a swift resolution of this matter.”Xinfeng, through its lawyer Nambili Mhata, approached the Windhoek High Court to urgently interdict and restrain Minister of Mines and Energy Tom Alweendo from implementing his decision to suspend its mining operations.Alweendo took a decision on 28 April to revoke his decision to grant Xinfeng mining licence ML 243. Alternatively, they are asking the High Court to suspend Alweendo’s decision with immediate effect, and that it shall have no force and effect until the main application is heard in the High Court in due time. They also asked for an order against anyone who opposes their application, with costs for one instructing and two instructed legal practitioners. Should the urgent application fail, they will apply for the minister’s decision to be revoked and declared unlawful and invalid, and to be reviewed, corrected and set aside in due course.The founding affidavit of Likulano Sauiyele January, a director of the company, states that the urgency of the matter arises from a necessity by the company to continue to carry out its mining operations in order not only to preserve its statutory, constitutional, commercial and mining operation activities and interests, but also the important interests of its workers, suppliers and indeed the public interest, pending the final relief sought in the proceedings. For the urgent proceedings, Xinfeng states that the decision of the minister is ultra vires and unlawful as it is not based on any statutory powers vested in him. “It is also irrational and arbitrary, primarily because the minister has taken the law unto himself, and has not approached this honourable court for a self-review of his prior decision to grant Xinfeng a mining licence, which he now purports to revoke,” January added.He further said once the minister granted the licence on 6 September 2022, after a thorough investigation conducted by or on his behalf, that decision stands as lawful and cannot be revoked by the minister outside of the powers vested upon him in terms of the Act. In the present instance, they said, the minister has expressly eschewed the exercise of the statutory powers conferred upon him to cancel a mining licence in terms of section 55 of the Act, and has failed to specify any statutory provision which empowered him to revoke Xinfeng’s licence, which makes his decision unlawful and invalid.The minister has not as yet indicated on E-Justice whether he will oppose the application, which is set down for 23 May at 09h00.The minister is joined in the application by the mining commissioner and the environmental commissioner.The ministry has until 10 May to oppose the application.- edeklerk@nepc.com.na- rrouth@nepc.com.na 2023-05-10Eveline de Klerk
