The hearing of mines and energy minister Tom Alweendo and Xinfeng Investments concluded yesterday before Acting Judge Ramon Maasdorp.
Xinfeng is asking the court to interdict Alweendo from implementing his decision to revoke Xinfeng’s mining license while Alweendo has counter sued for the court to nullify his decision to grant the license.
However, Advocate Vincent Maleka (SC), instructed by Nambili Mhata on behalf of Xinfeng, argued the decision cannot be declared null and void, as it was made by a decision maker (functus officio) – and even if it is unlawful, it remains a fact.
Maleka argued that such a decision cannot be rectified by a decision maker arbitrarily but must be reviewed – and if found unlawful, set aside by a competent court.
According to Maleka, the minister can only cancel the license in the event the license holder is unable to adhere to the license conditions, which, in this instance, is not the case.
Further, he said, the decision of the minister to grant the license was made before any allegations of fraud surfaced, and his decision to cancel was after the fact.
In any event, Maleka contended, Xinfeng did not admit to making misrepresentations in their application, and used the parts allegedly plagiarised as a narrative to show how the lithium will be extracted and not as technical data.
He went on to say it will be very difficult for the minister to prove that Xinfeng deliberately misled him as the threshold to prove fraud is very high, and the decision to revoke was based on allegations of fraud.
According to him, the minister made use of experts in his ministry, and it would be almost impossible for him to prove they did not do their job in the first instance.
He is of the opinion that Alweendo, at this late stage, wants to play judge and executioner based not on facts but on allegations of fraud based on findings “of so-called plagiarised documents”.
In fact, he said, the minister’s decision was ultra vires, as there is nothing in legislation that gives him powers to revoke a license based on fraud allegations. Administrators, he said, need to go to a competent court of law and cannot act on their own free will.
“Incorrect”, argued Advocate Gerson Narib, who appeared for the minister on instructions of the government attorney.
According to him, the manner in which the reports were submitted to the minister was done in a way to unfairly influence his decision. This, Narib argued, makes the decision a nullity and an unlawful act.
According to Narib, the fact that the decision to grant the license was unlawful in the first place makes it unnecessary for the minister to approach a court to set it aside. In such an event, he said, the decision is not a fact, as it was not made in good standing.
He further said misleading reports submitted by Xinfeng, which influenced the minister’s decision, were the culprits in the matter and submitting this behaviour of Xinfeng vitiated the granting of the license.
As such, he said, an invalid administrative act cannot have a subsequent invalid decision.
Alweendo took a decision on 28 April 2023 to revoke his decision to grant Xinfeng’s mining license (ML 243) in the Daures Constituency on 6 September 2022.
– rrouth@nepc.com.na