REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

RULING

Case No: HC-MD-CIV-MOT-REV-2018/00246

In the matter between:

TUMAS GRANITE CLOSE CORPORATION                          1^ST APPLICANT

JÜRGEN HOFFMANN                                                            2^ND APPLICANT

and

THE MINISTER OF MINES AND ENERGY                        1^ST RESPONDENT

THE MINING COMMISSIONER                                          2^ND RESPONDENT

THE PERMANENT SECRETARY IN THE

MINISTRY OF MINES AND ENERGY                                3^RD RESPONDENT

ATTORNEY-GENERAL OF NAMIBIA                                4^TH RESPONDENT

SWAKOP URANIUM (PTY) LTD                                        5^TH RESPONDENT

REPTILE URANIUM (PTY) LTD                                         6^TH RESPONDENT

NOVA ENERGY (PTY) LTD                                                7^TH RESPONDENT

NGOSHI POLLY CARPUS NEGONGO                              8^TH RESPONDENT

Neutral Citation:    Tumas Granite Close Corporation v The Minister of Mines and Energy (HC-MD-CIV-MOT-REV-2018/00246) [2023] NAHCMD 74 (23 February 2023).

Coram:        MASUKU J

Heard:          2 November 2022

Delivered:    23 February 2023

Flynote:       Administrative Law - Rules of the High - specific discovery in terms of rule 76(6) - Differences between discovery in terms of rule 28 and 76 - The importance of the issue of relevance in both actions and review proceedings – Legislation - Secrecy of documents - Section 6 of the Minerals (Prospecting and Mining) Act 33 of 1992 (‘the Act’).

Summary:    The applicants brought an application against the respondents for the production of a number of documents in relation to proceedings pending between the parties. The respondents had taken the position that some of the documents required were not available or were subject to provisions of secrecy in terms of s 6 of the Act.

Held: that discovery may be made in terms of either rule 28 or rule 76 of the High Court rules, depending on the proceedings before court. In this regard, rule 28 applies to action proceedings whereas rule 76 applies to review proceedings.

Held that: although relevance is a criterion for discovery in terms of both rules, the discovery in terms of rule 76(6) requires the discovery of ‘every scrap of paper’ yet in action proceedings the issue of relevance is determined by the pleadings.

Held: further that: in the instant case, the applicants are not seeking pre-litigation discovery for the reason that they have already launched their application and require documents that they consider relevant for throwing a light on other issues that may be relevant to their case. They are not seeking the documents for the purpose of deciding whether or not they have a case, which amounts to fishing expeditions.

Held: that the court in review applications may allow documents to be discovered except where there is a cognizable reason at law why the said documents should not be produced, such as when privilege attaches to the documents in question.

Held that: s 6 of the Act relating to secrecy of documents and on which the respondents in part relied for refusal to discover, actually allows the court to issue an order for the discovery of those documents.

Held: further that: in the instant case the relevant respondents, who claimed privilege in terms of s 6 of the Act did not place any material before the court that suggested cognizable reasons at law why the said documents could not be discovered as they appear to be relevant to the application.

The application for specific discovery was thus granted as prayed, with costs.

1. The first, second and third respondents are ordered to and directed to make available the full record of proceedings as they are compelled to do in terms of Rule 76(6) within twenty (20) days of this order, specifically the documents specified in the applicants’ founding affidavit.
2. Those documents stated on oath by the Minister of Mines and Energy not to be in the respondents’ possession despite a diligent search, shall not form part of the relief granted in paragraph 1 above.
3. The first, second and third respondents are ordered to pay the costs of the application.
4. The matter is postponed to 30 March 2023 at 08:30 for a status hearing.
5. The parties are ordered to file a status report on or before 27 March 2023, together with a proposed draft order.

RULING

MASUKU J:

Introduction

1. The court is called upon to make a ruling on an interlocutory application filed by the applicants to compel the first, second and third respondents to make available the full record of proceedings in terms of rule 76 of this court’s rules within a period of ten days. The application is hotly contested by the said respondents, who contest every blade of grass traversed.

The parties

2. The first applicant is Tumas Granite CC, a close corporation incorporated in terms of the laws of Namibia. The second respondent is Mr Jürgen Hoffmann, an adult male geologist who resides in Windhoek. He is the sole member of the first applicant.

3. The first respondent is the Minister of Mines and Energy, duly appointed as such in terms of the Constitution. The second respondent is the Mining Commissioner, duly appointed as such in terms of the provisions of s 4 of the Minerals (Prospecting and Mining) Act 33 of 1992, ‘the Act’). The third respondent, on the other hand, is the Permanent Secretary of the Ministry of Mines and Energy, now referred to as the Executive Director.

4. The fourth respondent is the Attorney-General of the Republic of Namibia, appointed as such in terms of the Constitution. The fifth, sixth and seventh respondents are companies duly incorporated in terms of the company laws of Namibia and they have been cited for the interests they may have in the relief sought.

5. It is important to mention at this early juncture, that the main protagonists in this latest debacle are the applicants and the first three respondents. The rest of the respondents have not made common cause with the Government respondents in this particular application.

6. Mr Strydom represented the applicants, whereas Mr Akweenda represented the active respondents in this matter. The court is grateful to both counsel for the assiduous assistance they dutifully rendered to the court at the hearing of this matter.

7. I will, for ease of reference refer to the parties, namely the applicants as such and to the active respondents, the first to third respondents as ‘the respondents’, respectively. The rest of the respondents will, where necessary, be referred to as they appear in the papers. Where the occasion demands that a particular applicant or respondent be separately identified, I will do so as they appear in the citation.

Background

8. This is a long-suffering matter. It has been interned in the case management process for an inordinately long time. This is explained by the highly contested manner in which this matter has been handled. There have been numerous twists and turns that have occupied the court for the last couple of years, with no end in sight yet.

9. This is, accordingly, one chapter, hopefully leading to the eventual hearing of the matter soon so that it may be finalised before this court. The parties and their legal representatives are urged to play their respective parts and roles in making this a reality. This matter cannot be allowed to occupy this court’s roll for much longer.

10. At the heart of the main application is an application lodged by the applicants on 11 March 2011 for a reconnaissance licence as envisaged in Part IX of the Act. The applicant claims that its application was not processed, forcing it to file an application for a mandamus under case number A257/2011. On 26 November 2012, the application for mandamus was granted, compelling the respondents to take decision not later than 31 January 2013. The applicant advised on 28 January 2013 that its application for a reconnaissance licence was unsuccessful.

11. The refusal was not taken supinely by the applicants. They lodged an application for review in case No. A95/2013. It would seem that there was eventually a settlement agreement signed by the parties in relation to this matter on 13 June 2013. This settlement agreement was duly made an order of court on 13 June 2017. It is the applicants’ case that the respondents failed to comply with the terms of the settlement agreement in that they failed amongst other things, to provide the applicants with a notice issued in terms s 48(4) of the Act as agreed in the settlement agreement. The applicants took the position that the matter was because of the respondents’ aforesaid failure, not settled therefor.

12. On 31 August 2017, the applicants filed another application for an exclusive right in terms of s 59(1)(b) of the Act. The applicants claim that they derived no joy from the fact that the respondents did not respond to this application. Another application for a mandamus followed under case HC-MD-CIV-MOT-GEN-2018/00070.

13. In 2019, the applicants applied for exclusive prospecting licences (EPL) in terms of s 68 and 69 of the Act. The respondents directed letters to the fifth, sixth and seventh respondents advising them of the applicants’ intention to apply for an EPL. It is the applicants’ case that they have not received any response from the respondents regarding their application nor an invitation to make representations on the application.

14. Coming close to the current dispute, the court, at the instance of the parties issued an order dated 30 September 2021, pursuant to a rule 32(9) meeting directing the parties to move the matter forward by the applicants seeking specific discovery by letter in respect of the dispatching of the record of proceedings by 7 October 2021. The respondents were to reply thereto on or before 21 October 2021. If the applicants were not satisfied with the production made, they could approach the court and file an appropriate application, seeking discovery in respect of the dispatching the record.

15. The applicants are dissatisfied with the record dispatched by the respondents, hence the current application. In this regard, they have applied for the production of 86 items in respect of the EPLs for which they have applied. These are documents which include minutes of meetings, written instructions by the Minister, copies of delegation to the second respondents by the Minister, complete copies of EPL3439, submissions and recommendations, summary sheets, letters and memoranda by the Committee in respect of EPL3439. This is to mention but only a few of the documents required for production.

16. It is the applicants’ case that the reason first provided by the respondents for not producing these documents were that they were not in the respondents’ possession. Later, the respondents allegedly changed tack and stated that the information required was part of information filed in respect of applications for licences by other applicants and which documents were filed in confidence and may contain trade secrets of the other entities involved.

17. It is indeed the respondents’ case that the documents sought by the applicants either do not exist or could not be located despite a diligent search or are protected in terms of the provisions of s 6 of the Act and the respondents sought the prior permission of the said persons being the fifth to eight respondents. The applicants take the view that the consent of the said respondents is not necessary. This is an issue that will be dealt with in due course in this ruling.

The contentious issues

18. It would appear that the issues in contention between the parties, i.e. the applicants on the one hand, and the respondents on the other, touch on the whole issue of discovery and its purport and the law applicable to review, particularly with regard to the dispatching of the record in terms of rule 76. Another issue that will have to be determined first, relates to the privilege claimed by the Minister in terms of s 6 of the Act. The task of the court will be to decide whether the claim to secrecy is properly made, especially viewed in the light of the nature and purpose of dispatching the review record in matters properly falling under administrative law review.

19. It would seem to me that once the court has made a determination in relation to the contested issues mentioned above, it will be opportune to make a determination regarding the particular documents which form the basis of the application for dispatch of the specific documents. There may well be another route by which a decision on the particular issues raised may be determined, regard being had to the specific findings of the court on the particular classes of issues up for determination. I proceed to make the necessary determination of the key issues below.

Discovery i.t.o. rule 28 vs dispatching of record i.t.o. rule 76.

20. It must be immediately clear that discovery, provided for under rule 28, falls under Part III of the High Court Rules. It is the part that deals with judicial case management. In this particular part of the rules, judicial case management relates strictly to action proceedings. It thus calls upon parties to the action to ‘make discovery, identify and describe all documents, analogues or digital recordings that are relevant to the matter in question and in respect of which no privilege may be claimed and further identify and describe all documents that the party intends or expects to introduce at the trial.’ (Emphasis supplied).

21. I have deliberately underlined some portions of the above excerpt because they are, in my considered view important regard had to the matter at hand. First, it is clear that in matters of discovery, which applies, as I have stated, to action proceedings, which result in a trial, relevance of the documents liable to be discovered, plays a very critical role. As such, if documents, analogues and recordings bear no relevance to the issues to be determined at a trial, no matter how much the party is enamoured thereto or enchanted thereby, the irrelevance of same renders it improper for that party to discover the said material.

22. Applications for review are, on the other hand, governed by rule 76. Applications, it will be seen from a reading of the rules, that they belong to another family of this extended family of the rules of court. Applications, unlike action proceedings, belong to Part 8 of the rules, which begins with rule 65, which deals with the requirements in respect of applications.

23. Rule 76 is headed ‘Review application’. This makes it plain that this procedure falls under applications as opposed to trial proceedings. Rule 76(6) provides the following:

          ‘If the applicant believes there are other documents in possession of the respondent, which are relevant to the decision or proceedings sought to be reviewed, he or she must, within 14 days from receiving copies of the record, give notice to the respondent that such documents must be discovered within five days after the date that notice is delivered to the other party.’

24. It is worth noting that the rule maker, in this rule, states that relevance is a criterion in relation to the process of making documents available to the applicant for review. Furthermore, it is pertinent to observe that the rule maker employs the same word as in rule 28, namely, discovery of documents in this subrule.

25. I should perhaps mention at this juncture that discovery has been described as a process that ‘assists the parties and the court in discovering the truth and, by doing so, helps towards the just determination of the case. It also saves costs.’[1]

26. Mr Strydom, in his argument stressed the constitutional dispensation in which we live in Namibia. He, in particular, referred the court to the provisions of Art 18 of the Constitution, which read thus:

          ‘Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by the common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have a right to seek redress before a competent Court or Tribunal.’

27. It was thus his argument that if a party, in the applicants’ position is aggrieved as it is by the actions or decisions of the respondents, if the applicants are to fully and beneficially exercise their right to seek redress, as envisaged in Art 12 above, then the applicants are entitled to be given access to the record of proceedings, which formed the basis for the decision sought to be impugned in the application for review. I am in agreement with him on this score. Failure to access the full record of the proceedings, which led to the decision sought to be challenged on review, clearly imperils the content of the right to redress protected in Art 18.

28. In Helen Suzman Foundation v Judicial Service Commission,[2] the court reasoned as follows, regarding the record of proceedings in review applications:

          ‘[14] It is settled law that the rule is primarily intended to operate in favour of and for the benefit of an applicant in review proceedings and to avoid review proceedings being launched in the dark.’

29. In other words, the production of the full record of proceedings in review applications, throws full a light and perspective into the decision-making process. As such, it leaves no stone unturned and avoids speculation on the part of the applicant and I may add, the court as well, as to what may or may not have motivated the decision or what may have been taken into account in the making the decision sought to be impugned. In fact, all the ingredients, which played a part in the making of the decision, must be disclosed. Ordinarily, the respondent body or official does not feature in this because it, or he or she would, as the decision-maker, know all there is to know about the decision in question. See also Jockey Club of South Africa v Forbes.[3]

30. In Aonin Fishing (Pty) Ltd v and Another v Minister of Fisheries and Marine Resources[4] this court dealt with the meaning of the words ‘record of proceedings’ and held as follows:

          ‘The words “record of proceedings” cannot otherwise be construed, in my view, than as a loose description of the documents, evidence and arguments and other information before the tribunal relating to the matter under review, at the time of making the decision in question. It may be a formal record and dossier of what happened before the tribunal but it may also be a disjointed indication of the material that was at the tribunal’s disposal. In the latter case, it would, I venture to think, include every scrap of paper throwing light, however indirectly, on what the proceedings were, both procedurally and evidentially.’ (Emphasis added).

31. This position was affirmed by the Supreme Court in Chairperson of the Tender Board of Namibia v Pamo Trading Enterprises CC and Another and must accordingly be accepted as part of our law.  On the other hand, in Helen Suzman Foundation v The Judicial Services Commission[5], Madlanga J remarked as follows:

          ‘The current position in our law is that – with the exception of privileged information – the record contains all information relevant to the impugned decision or proceedings. Information is relevant if it throws light on the decision-making process and the factors that were likely at play in the mind of the decision-maker.’

32. The Constitutional Court extended the boundaries in the Suzman and stated that deliberations of the body or tribunal whose decisions are sought to be impugned must be made available. The court reasoned as follows in this particular regard:

          ‘The general exclusion of the deliberations as a class of information from rule 53 records . . . seems to be somewhat arbitrary. Irrelevance and privilege are the usual grounds for excluding information from the record. It cannot be that deliberations, as a class of information, are generally (a) irrelevant for purposes of assisting an applicant in pleading and presenting her or his case; or (b) subject to some form of privilege. Further, I cannot conceive of any policy or public-interest reasons for excluding deliberations from the record in general . . .

Surely deliberations are relevant to the decision they precede and to which they relate . . . They may well provide evidence of reviewable irregularities in the process, such as bias, ulterior purpose, bad faith, the consideration of irrelevant factors, a failure to consider relevant factors and the like. Absent disclosure, these irregularities would remain hidden. Deliberations are the most immediate and accurate record of the process leading to the decision.’   

33. The learned author Hoexter[6] states the following in relation to the subject:

          ‘The requirements to furnish the record is crucial to the efficacy of review proceedings. It promotes transparency, accountability and the proper administration of justice, and reduces the prospect that irregularities in public decision-making will go undetected. “The record enables the applicant and the court to fully and properly assess the lawfulness of the decision-making process. Moreover, it safeguards the right of access to courts entrenched in s 34 of the Constitution by ensuring that the applicant does not bring review in the dark and that all parties (and the court) have the same information at their disposal in the review proceedings. The provision promotes an “equality of arms”.

34. It is accordingly in the light of the two criteria mentioned above that the documents required by the applicants must be viewed – namely, their relevance to the decision-making process and whether they are not privileged. I will deal with the latter later.

35. I am of the view, having regard to the documents mentioned that when one has regard to their nature and expected contents, they are documents which neatly fall within the ‘every scrap of paper’ referred to earlier. Barring that they may fall within the ambit of privilege, they should, in my judgment, be availed to the applicants as they may reveal issues of which the applicants may at the moment be unaware of and which may also assist the court in determining the matter in the light of all the relevant facts and information.

36. I should, in this connection, note that in dealing with the issue of relevance of the documents, Mr Akweenda placed reliance on Kamanya v Cupido.[7] I am of the view that whereas the principles enunciated in Kamanya are correct, it should not be forgotten that they were expressed in connection with action proceedings, where the relevance was said to be determined in relation to the pleadings. This is an application for review in which ‘every scrap of paper’ counts in the equation at the end of the day. The concept of relevance is therefor rather expansive in applications for review than in action proceedings.

37. I would, in this regard, even posit that whereas the issue of relevance is determined in advance by the pleadings, in action proceedings, in applications for review, the relevance is determined at the end, i.e. after every scrap of paper has been discovered. It is at that point that the applicant is able separate the wheat from the chaff in terms of relevance.

38. I must also record that I do not agree with Mr Akweenda that the application filed by the applicants amounts to pre-litigation discovery. I say so because in the instant matter, applications were filed by the applicants and they are entitled, in terms of rule 76(6) to require documents that they claim have not been availed together with the record of proceedings. To this extent, it seems to me that this case is clearly distinguishable from the Pamo Trading case (supra).

39. It must be stated that the applicants, it is plain from the papers, have not lodged this interlocutory application in order to determine whether they have a case against the respondents or not. As stated, they have already filed a case and now require all the necessary and relevant information to state their case in the ‘light’ of all the relevant documents in the respondents’ vault.

40. It should be recalled that the respondents do not, in this case allege that the documents are privileged in the classical legal sense. In the Suzman case (supra), the Constitutional Court recognised that documents may not be disclosed where there is a ‘legally cognisable basis’ for doing so and legal privilege is one such consideration.

41. In the instant case, what the court must determine is whether the documents required by the applicants may not be delivered because of the provisions of s 6 of the Act. I should hasten and mention that the respondents do not, in their opposing affidavit, state concrete reasons why the documents should not be disclosed. All they do, is to rely, in a blanket manner, on the provisions of s 6 of the Act. No particular basis for objection to the disclosure of the documents, is supplied for the court to assess the validity of the objection. Pleading cases in a chary manner does not assist the court in determining issues that arise equitably.

42. Section 6 provides the following:

          ‘The Commissioner, any other officer employed in the Ministry of Mines and Energy, whether or not engaged in carrying out the provisions of this Act, and any other engaged in carrying out any provision of this Act shall preserve and in aid in preserving the secrecy in relation to all matters that may come to his or her knowledge in the exercise of the powers or the performance of the duties and functions conferred or imposed upon the Commissioner or such officer or person in terms of any provision of this Act, and shall not communicate any such matter to any other person or permit any other person to have access to any documents in his or her possession or custody, except in so far as such communication –

1. is reasonably required by, or may be made in terms of, this Act or any other law, or is required by an order of a competent court;
2. is effected with the prior permission of the person concerned, or of the Minister granted in respect of any matter which in the opinion of the Minister is of a general nature and may be disclosed in the public interest;
3. relates to any information submitted, whether by a report, return or otherwise, to the Minister or the Commissioner in terms of any provision of this Act in connection with any reconnaissance operations, prospecting operations or mining operations carried on under a non-exclusive prospecting licence, mining claim or mineral licence, as the case may be, unless the holder of  such licence or mining claim has applied for any other mineral licence or the registration of a mining claim in respect of the prospecting area or claim area, as the case may be, in relation to which such information has been submitted or the secrecy of such information is required to be preserved in terms of any term and condition of such mineral licence or mining claim.’

43. Subsection (2) of the provision stipulates a penalty, regarding a person who contravenes or fails to comply with the provisions of subsection (1) quoted above. It records that a person who contravenes subsection (1) shall be guilty of an offence and on conviction, be liable to a fine not exceeding N$8000 or imprisonment not exceeding 12 months.

44. I am of the considered view that when one has proper regard to the provision cited above, it makes it clear that the court may, in appropriate cases, order information that may otherwise be regarded as secret, to be disclosed by an order of a competent court. Although the meaning of what a competent court is, is not defined, I am of the considered view that this court, being the one saddled with dealing with applications for review is a competent court as envisaged in the Act. I do not understand the respondents to contest that.

45. I have considered the documents required by the applicants and they include documents relating to financial statements of third parties and what may be called trade secrets. I am of the considered view that although those documents may be regarded as secret, for the purpose of a review, they may be critical in determining for the purpose of the application, whether all the relevant procedures and requirements were followed. Financial statements may be key in that regard and to merely order that they be not disclosed in terms of s 6 may be inimical to the interests of justice and the search for the truth in these matters. I consider the documents required to be ‘reasonably required’ in terms of s 6(a) of the Act.

46. I should add that it is not the responsibility of the Minister or the other Government respondents to be a gatekeeper for the rest of the respondents cited in this matter. The fifth to eighth respondents were served with the application and they did not oppose the application as far as I am aware. As it is, they have placed nothing before court as a basis for the court refusing the granting of the application. It is not for them to rely on the Minister making a blanket defence for them in terms of s 6 of the Act and they giving or refusing consent for the documents to be availed.

47. The said respondents had a responsibility, as individual respondents, cited and served with the papers, to state their respective cases before court regarding the specific discovery sought by the applicants and they did not do so. By not opposing and not filing opposing affidavits, or points of law in that regard, they must be regarded as having surrendered themselves to whatever course the court may find is appropriate, having had regard to the papers before it.

48. Should there be genuine concerns by the parties whose interests may be affected by the disclosure of the documents and I must record that there are no such complaints before me, it being common cause that it is the Governments respondents who raise the issue of secrecy and not the other respondents who have been cited, who complain about the issue of financial information and trade secrets, there appears to be a solution.

49. In Crown Cork & Seal Co v Rheem SA (Pty) Ltd[8] the court considered that it could order limited disclosure of the documents in the interests of justice, such as the documents being availed to the applicants’ legal practitioners and other experts but not the parties themselves. As I have said, the fear in this case has only been expressed by the respondents and not the parties whose interests the respondents seek to protect, yet those parties have been cited in these proceedings.

50. I am of the considered view that in the context of this case, it is imperative that the documents required be made available to the applicants to enable them to prosecute their case. As I have mentioned, should a caveat be necessary regarding the disclosure of these documents, the court can be approached with representations in that regard.

51. To my mind, the full, effective and beneficial exercise of the right in Art 18 in this case, requires that ‘every scrap of paper’ should include the documents that the respondents contend should not be availed. I exercise the powers imbued on this court by s 6(a) of the Act and order that those documents be discovered and made available to the applicants in the prosecution of their case.

52. In addition, there is no allegation that the secrecy of the information alleged by the respondents, is required to be preserved in any of the terms or conditions of the mineral licence or mining claim as envisaged in s 6(c) of the Act. These deficiencies in the respondents’ opposition suggest that there is no real justification for attaching secrecy and a refusal of the application in the circumstances would seriously impede and erode the applicants’ rights to full and frank disclosure as they assert their right to Art 18.

Settlement agreement

53. I note that in the respondents’ heads of argument, they raise an issue, namely, that the parties entered into a settlement agreement on 17 August 2017. They accordingly argue that the application for specific discovery has thus become moot.

54. I am of the view that it is inopportune to deal with this matter in the current application. I say so for the reason that when I read the Minister’s answering affidavit, I do not see that issue raised at all. I should, for completeness mention that the other respondents, as recorded elsewhere, did not file any papers in opposition. As such, the issue of the settlement agreement and its alleged effect was raised for the first time in the respondents’ heads of argument.

55. In the premises, it is unfair for the court to deal with the matter in the particular circumstances where this issue was not raised in the respondents’ answering affidavit. Had that been done, the applicants would have had an opportunity to deal with it in reply. This would have made the issue available to the respondents to argue without any degree of unfairness to the applicants. It must also be recalled that the applicant files heads of argument first and they therefor had no opportunity to address the issue, considering that it does not emanate from the respondents’ answering affidavit.

56. I shall, for that reason, not determine that issue, given the prevailing circumstances as described above. I cannot say whether the issue has merit or not but observe that it was incumbent on the respondents to raise it in their answering affidavit if it was as it now seems a matter of great moment. It is imperative, having said that, to observe that this matter has proceeded from 2017 in this court to date, with the respondents fully participating in the proceedings at full throttle but without demur.

Conclusion

57. Having stated the above, I come to the conclusion that the authorities quoted above, throw a different light on applications for specific discovery of the record. The approach is distinguishable from action proceedings and that the issue of relevance in review proceedings is much more expansive as ‘every scrap of paper’ is required. In the premises, I am of the view that the application should succeed, considering that the issue of secrecy alleged by the Government respondents does not avail them. This is so when regard is had to the level of disclosure required in review applications.

58. It is, in my considered view, necessary to afford the respondents an opportunity to avail the documents identified as there may previously have been some basis they considered available to them to refuse or decline to avail the documents. The clarity of the judgment in those particular respects, will hopefully conduce to a speedy and seamless discovery process, so that the application is concluded soon in the interest of all the parties.

[59]    I should, in closing, make reference to remarks by the Supreme Court in Koujo v Minister of Mines and Energy and Others.[9] In that matter, the Supreme Court dealt with the provisions of s 125 of the Act. In doing so, Smuts JA made some lapidary remarks that resonate well with the entire scheme of the Act and the need to make every scrap of paper available in review proceedings in the interests of accountability and transparency.

[60]    His Lordship, pertinently stated the following:[10]

          ‘The purpose of this provision is within the context of the Act is to provide for transparency and certainty in the manner in which the wide and far reaching powers vested in the Minister and the Mining Commissioner are to be exercised in allocating rights to Namibia’s natural resources . . . It is after all conducive to accountability and public interest in the context of the Act and the constitutional dispensation with regard minerals (and other natural resources such as those in the sea) that the statutorily set procedures for applications for their allocation are strictly adhered to’.

[61]    Having said the above, I note that the Minister has stated under oath, that some of the documents required by the respondents are not in the respondents’ possession and that some have, despite a diligent search, not been located. I do not take the Minister’s statements on oath in this regard lightly, as he would place himself on a collision course with the law if his depositions are untrue. I have no reason to believe he would deliberately mislead the court in that regard. Those items, which are not in the respondents’ possession, as stated under oath, will not form part of the documents liable to be discovered in terms of the order that follows below.

Costs

[62]    The applicants, in their notice of motion, applied for costs on the punitive scale. Having read the applicants’ affidavits and their heads of argument, however, I am not persuaded that this is a proper case where punitive costs are appropriate. The respondents may have been advised they had some legitimate claim not to discover the documents required. Costs will, for that reason, be levied on the ordinary scale.  

Order

[63]    In view of the findings and conclusions reached above, it seems to me that the following is the order that presents itself as appropriate in the circumstances:

1. The first, second and third respondents are ordered to and directed to make available the full record of proceedings as they are compelled to do in terms of Rule 76(6) within twenty (20) days of this order, specifically the documents specified in the applicants’ founding affidavit.
2. Those documents stated on oath by the Minister of Mines and Energy not to be in the respondents’ possession despite a diligent search, shall not form part of the relief granted in paragraph 1 above.
3. The first, second and third respondents are ordered to pay the costs of the application.
4. The matter is postponed to 30 March 2023 at 08:30 for a status hearing.
5. The parties are ordered to file a status report on or before 27 March 2023, together with a proposed draft order.

___________

T S MASUKU

Judge

APPEARANCES

APPLICANTS:                             J Strydom

Instructed by:                              Dr. Weder, Kauta & Hoveka Inc.

1^ST – 3^RD RESPONDENTS:          S Akweenda (With him, F. Kadhila)

Instructed by:                              Of Office of the Government Attorney