Court name
High Court
Case number
PA 16 of 2007

Black Range Mining (Pty) Ltd v Minister of Mines and Energy and Another (PA 16 of 2007) [2009] NAHC 100 (12 June 2009);

Media neutral citation
[2009] NAHC 100


NO. (P) A 16/2007


In the matter between:






Heard on: 06 - 08 April 2009

Delivered on: 12 June 2009


[1] This
is an application to review a decision of the Minister of Mines and
Energy. The application was launched on 1 February 2007 by Erongo
Nuclear Explorations (Pty) Ltd (Erongo) as first applicant and Black
Range Mining (Pty) Ltd as the second applicant. Mr. Odendaal SC with
him Mr. Totemeyer appeared for the applicants, Mr. Corbett for the
first respondent and Mr. De Bourbon SC with him Mr. Barnard for the
second respondent. However, Mr. De Bourbon limited his appearance to
the hearing of the application to strike out filed by the second
respondent (hereinafter referred to as “Ancash”). In the
application, Ancash sought to strike out certain material from the
papers filed by Christiaan Lilongeni Ranga Haikali, the managing
director of Erongo. Judgment was reserved and was delivered on the
first day.

[2] The
first group of the matter sought to be struck consisted of
duplications of documents annexed to the affidavit of Haikali. This
was indeed so and such documents were struck for that reason. The
second group consisted of matter enumerated by Ancash as
opinion evidence, scandalous, vexatious and defamatory matter,
inadmissible hearsay and irrelevant and new matter not pleaded in the
founding affidavit filed by Haikali. The court found that the
allegation was proved and there is no purpose in canvassing the
reasons as these are satisfactorily covered by the record of the
hearing to which reference should be made. The court concluded that
the application should be allowed with costs on the attorney and
client scale, including the costs of two instructed counsel and that
was the order made.

[3] In
the rest of this judgment I shall refer to the first respondent as
“the Minister”.

[4] The
history of the matter may be summarized as follows:

  1. Black Range Mining (Pty) Ltd
    (hereinafter referred to as “the applicant”) has been
    the holder of 4 Exclusive Prospecting Licences (EPLs) issued under
    the Minerals (Prospecting and Mining) Act 33 of 1992 (the Act) as
    from the year 2000. The licences entitled the applicant to explore
    for base and rare minerals, industrial minerals, precious metals and
    precious stones only but not to explore for nuclear fuels. The
    applicant has since abandoned 2 of the EPLs but that will not affect
    the outcome of this matter.

  1. On 23 October 2006 the
    Minister awarded EPLs to explore for nuclear fuels (uranium EPLs) to
    Ancash over the same geographical area covered by the applicant’s
    EPLs. This followed the refusal of an application by the erstwhile
    first applicant in these proceedings, (Erongo), for EPLs to explore
    for uranium in that area.

  1. The Minister’s decision
    was allowed to stand and not taken on review. Nor was it suggested
    that, in making the decision, the Minister was not entitled to view
    the actions of Reefton NL, the ultimate holding company of Erongo
    and the applicant, as sufficient ground for refusing the

  1. The application to review the
    Minister’s decision was launched by Erongo as the first
    applicant and the applicant as the second applicant on 1 February
    2007. However, on 17 October 2007 Erongo withdrew from the
    proceedings and abandoned all relief sought by it in the review

  1. The applicant persisted with
    the application without amending the original notice of motion and
    declined an invitation by Ancash to amend the notice of motion “for
    purposes of properly reflecting the relief sought” as Mr.
    Barnard submitted. Mr. Odendaal referred Mr. Barnard to the heads
    of argument filed by the applicant on 11 March 2009 as a sufficient
    source of information apprising Ancash of the nature of the relief
    sought. The said relief calls upon the respondents to show cause
    why –

1. The
Exclusive Prospecting Licenses number 3632, 3635, 3636 and 3637
purportedly granted by first respondent to second respondent under
the Act on or about October 2006 not should not be

    1. declared
      in conflict with the Constitution of Namibia.

    2. Declared
      ultra vires the powers of first respondent.

(the Minister’s decision) is accordingly null and void,
alternatively be reviewed and set aside in terms of Rule 53(1).

2. Ordering
the respondents to pay the costs of this application jointly and
severally, the one paying the other to be absolved.”

  1. However, so strongly was the
    rejection of the invitation to amend the notice felt that a formal
    application for an order compelling compliance was made. The
    application was opposed. Mr. Corbett, for his part, submitted that
    but for a minor reservation on the sufficiency of an affidavit filed
    in the review application, he had no objection to continuation of
    the proceedings on the basis of what the applicant contended was

  1. After hearing argument, the
    application was dismissed with costs, including the costs of two
    instructed counsel. Again, the reasons will not be canvassed
    separately as they are sufficiently covered by the record of the
    relevant hearing to which reference should be made.

[5] Prior
to the institution of the review application, the applicant had
applied for rights to explore for uranium to be included in its EPLs.
The application was refused on the ground that the EPLs had been
abused by illegal exploration for uranium in the area on the basis of
which Reefton NL had announced to the outside world that it had made
a “new discovery” of uranium in its EPL areas, which was
untrue because the existence of uranium in such areas had been known
and publicly documented since 1970. As already mentioned, Reefton NL,
an Australian based company, was the ultimate holding company of the

[6] Mr.
Barnard has raised a number of issues
and the first
such issue was unreasonable delay in bringing the review application.
He submitted that the refusal of the application for the uranium
EPLs occurred on 25 August 2006 and from such date the applicant (and
Erongo) would or should have known that the Minister was at liberty
to receive fresh applications for the uranium EPLs from any third
party and to consider and award the same to such parties. In any
event, so Mr. Barnard continued, the information was published in the
Minister’s Register and the applicants should have checked the
document, which would have alerted them to the application by Ancash.
However, it transpired that the Register was not up to date anyway
and this effectively buried Mr. Barnard’s contention on the

[7] Mr.
Barnard further contended that the applicants had wasted their time
by addressing a letter to the Minister, threatening legal action if
he failed to give an undertaking not to award the uranium EPLs to any
third party by 7 November 2006 and then allowing the deadline to come
and go without such action being instituted when the undertaking was
not given as demanded.

[8] The
applicants’ explanation for the delay in launching the review
application is that the first intimation that the Minister had
awarded the uranium EPLs to Ancash occurred on 7 December 2006 when
it learnt of the identity of the recipient of the EPLs. This
occurred in the wake of several events which included an exchange of
correspondence with the Minister on the matter during September and
October 2006.

It should be
pointed out at this stage that Mr. Barnard actually misconstrued the
letter to which he referred as a threat to sue the Minister. The
portion of the letter he quoted reads as follows:

our client’s firm intention to legally challenge your decision
contained in annexure “A” hereto, our client requires
that you shall undertake not to issue exclusive prospecting licences
in respect of any of the areas applied for by our client, for the
prospecting and/or exploration of the Nuclear Fuel Minerals Group,
until such time as the review has finally been determined.

you refuse to give an undertaking as sought in paragraph 9 above, our
client would suffer irreparable harm if such rights were awarded to
third parties and they would have no other option but to approach the
high Court of Namibia on an urgent basis.
such an undertaking not be forthcoming by latest 7 November 2006 our
client shall accept that you are not prepared to give such an

[10] It
will be seen that the letter does not threaten action if the
undertaking was not forthcoming by 7 November 2006; rather the letter
merely warned that, in the event of failure to give the undertaking,
the applicant shall accept “that you are not prepared to give
such an undertaking” and resort to litigation, which is
markedly different from the meaning which Mr. Barnard attributed to
the letter. Thus viewed, the point raised by Mr Barnard is
colourless and may be safely disregarded.

[11] In the interim, the
applicant had purported to appeal against the Minister’s
decision and it had not helped matters that the Mining Commissioner
stated that, in terms of the Act, the Minister “is entitled to
revisit a decision made by him.” It was conceded that the
Mining Commissioner’s statement was incorrect as the Act does
not provide for such an appeal. Thereafter, a letter dated 21
November 2006 was received from the Minister the essential portion of
which stated merely that “other applications were considered.”

[12] A further reason given for
the delay in the preparation and launching of the review application
was the interruption caused to the process by the Christmas recess.

[13] It is convenient to
consider at this stage Mr. Barnard’s second point
in support of
his contention that the delay
in launching
the review application operates against the intention of the Act for
optimal exploration for minerals in a manner as “would serve
the development of the mineral resources of Namibia” and, for
that reason, causes prejudice to applicants for competing rights. He
Mining (Pty) Ltd v The Minister of Mines and Energy and Another

2007 (2) NR 469 (Hc) in support of his argument. The argument
relates directly to the submission made by Mr. Odendaal as follows:

any event, no prejudice ensued for the affected party being second
respondent, since it is common cause between applicant and second
respondent that the latter had not yet commenced with its prospecting
activities on the 4 EPLs awarded to it at the time when the review
application was launched. The issue of prejudice (or the absence
thereof) is a relevant consideration in determining the delay –
challenge. (Namibia Grape Growers and Exporters v Ministry of Mines
2004 NR 194 (Sc), 214H – I”).

[14] My view is that Otjozonda
does not assist either the applicant or the respondent
. My respectful
interpretation of the judgment read as whole is that the fact that
Ancash had not commenced its prospecting activities is neither here
nor there but that an applicant in a review application should not be
allowed “to hold the whole mining industry hostage simply by
filing an unmeritorious application.” At 473F. Put another
way, whether or not a review application had been unreasonably
delayed is a factual enquiry which depends on the surrounding
circumstances and regard should also be had to the time required to
take all reasonable steps prior to and in order to initiate the
litigation. See
v Government of the Republic of South Africa and Others

1995 (3) SA 787 (N) at 798 I – 799E and the authorities
referred to in the judgment.

[15] It is agreed that the
court has a discretion to condone an unreasonable delay but only upon
a proper application giving a full explanation for the delay. See
Disposable Medial
Products v Tender Board of Namibia

1997 NR 129 (Hc) at 132 and the cases referred to by the judgment.

[16] I do not find dilatoriness
in the launching of the review application but, at worst, extra
caution not to launch the application without first appealing to the
Minister not to lose sight of the applicant’s interest in
securing uranium EPLs over its area. Hence the exchange of
correspondence with the Minister on the matter and the futile attempt
to launch an incompetent appeal without knowing whether any competing
applications for the EPLs in question had been made or the identity
of competing applications, if any, and these are allegations which
have not been effectively disputed. Accordingly, I find that the
explanation given for the delay in launching the review application
satisfies the principles enunciated by the authorities for granting
condonation. It is also my view that, in the context of the
explanation given in this matter, it was not necessary for a formal
condonation application to be made as Mr. Barnard argued. Therefore,
his first and second points
must fail and
are dismissed.

[17] The third issue in
raised by Mr.
Barnard was that the application must fail because the applicants
approached the court with “unclean hands.” The principle
has its origin in English law and has been firmly entrenched as part
of Namibian law. It is a defence whose purpose is to deny relief to
those litigants whose conduct lacks probity or honesty or is tainted
with moral obloquy.”
Newspapers of Zimbabwe (Pty) Ltd v Minister of Information and
Publicity in the President”s Office and Others

2004 (2) SA 602 (ZS) at 608H. It will be seen that the defence is
not limited only to instances where a litigant has involved himself
in acts of “fraud, dishonesty or
as Mr.
Odendaal appeared to suggest.

[18] While not conceding the
point, Mr. Odendaal submitted in the first place that the onus rested
on the respondents as the party raising the defence to raise or plead
the defence in their founding papers. However,
& Van Winsen, the Civil Practice of the Supreme Court of South
ed enunciates the following principle at p368 –

legal points are set forth in the application, the applicant is not
confined to them but may advance any further legal basis for the
application that may arise from the stated facts. A party is
entitled to make any legal contention open to him on the facts as
they appear on the affidavits, and the court may decide an
application on a point of law that arises out of the alleged facts
even if the applicant has not relied on it in his application.”

[19] To my mind, the principle
accords with the decisions of the courts. See
Newspapers, supra, Simmons NO v Gilbert Hamer and Co K Ltd

1963 (1) SA 897(N) and
v Van Rensburg
(1) SA 505 (AD) at 501. Accordingly, Mr. Barnard’s contention
must be upheld and applied to the present matter.

[20] Mr. Odendaal submitted in
the second place that even if the applicant was caught by the unclean
hands principle, which was not admitted, a litigant may purge itself
of that defect, akin to purging oneself of contempt of court, and
this was precisely the position in which the applicant was when it
launched the review application. See
v Soller
2001 (1) SA
570 (C) at 573 D-G. In
while it is true that in the failed application for uranium EPLs both
the applicant and Erongo were closely associated with Reefton NL in a
relationship of which the Minister strongly disapproved, the admitted
fact that the Minister in fact renewed the applicant’s existing
EPLs after the launching of the review application defeats the
contention that the applicant came to court with “unclean
hands” and that puts the disputed issue at an end.

[21] This brings me to the
grounds relied upon for review of the Minister’s decision. The
first such ground is that the decision was tainted by bias. It
appears from the papers filed by the applicants that the allegation
was confused with the concept of unequal treatment of the parties.
However, despite the present review application, the Minister agreed
to the extension of the EPLs held by the applicant which had nothing
to do with exploration for uranium. It is submitted on the
Minister’s behalf that he is entitled to apply different
considerations to his decisions relating to granting or refusing
applications for exploration of strategic nuclear fields. Therefore,
it is impossible to infer bias from the Minister’s exercise of
his discretion in this matter and the allegation of bias must be

[22] The second ground for
review can be disposed of shortly as follows. It is alleged that
Ancash or those making the application on Ancash’s behalf
plagiarized the failed application for uranium EPLs made by Erongo
and the applicant. The short answer is that plagiarism, if any,
cannot be a ground for reviewing the Minister’s decision as it
is not his function to scour applications for plagiarism. All that
section 68(c) of the Act requires of him is that he should be aware
or made aware of the location and extent of the area to which EPL
applications relate and of the farm(s) affected by such applications
and, in my view, it must be assumed that there was compliance with
the provision.

[23] The third and crucial
ground for review is alleged non-compliance with section 69(2)(g) of
the Act. The section provides as follows:

Notwithstanding the
provisions of subsection (1), (which do not arise herein) the
Minister shall not grant an application by any person for an
exclusive prospective licence-

In respect of any prospecting area or retention area in relation to a
mineral or group of minerals other than the mineral or group of
minerals to which the exclusive prospecting licence or mineral
deposit retention licence issued in respect of such areas relates,
respectively, unless –

  1. such
    person has given notice in writing, not later than on the date on
    which such application is made, to the holder of the exclusive
    prospecting licence or mineral deposit retention licence to which
    such prospecting area or retention area, as the case may be, relates
    of his or her application or intended application, as the case may
    be, for such exclusive prospecting licence and has provided the
    Minister of proof in writing of having done so

  1. the
    Minister has afforded the holder referred to in subparagraph (i) a
    reasonable opportunity to make representations in relation to such

  1. the
    Minister deems it, with due regard to representations made in terms
    of subparagraph (ii), if any, desirable in the interests of the
    development of the mineral resources of Namibia, to grant such
    licence and

(iv) the
Minister is on reasonable grounds satisfied that prospecting
operations carried on by virtue of such licence will not
detrimentally affect the rights of any holder of an exclusive
prospecting licence or a mineral deposit retention licence, as the
case may be, in respect of any such area.”

[24] It will be seen that the
provision is mandatory and Ancash admittedly failed to comply
therewith. Not deterred thereby, Mr. Barnard contended that there
was substantial compliance with the provision on the following bases

  1. The applicant became aware of
    Ancash’s application in sufficient time to make
    representations to the Minister.

  2. The Minister was aware of the
    rights of the applicant and he considered Ancash’s application
    against the background of such knowledge on his part.

  3. In the circumstances any
    “technical” non-compliance with the provision would not
    have defeated its objectives and would not constitute a reviewable
    irregularity on the part of the Minister.

There is no substance in the

[25] Firstly, the respondents
have not been able to dispute the allegation that the applicant was
to all intents and purposes deliberately kept in the dark (as the
saying goes) on Ancash’s application and were denied access to
the information by the respondents’ admitted non-compliance
with section 69(2)(g) of the Act. Therefore, the applicant could not
possibly have been aware of the application.

[26] Secondly, the Minister
could not be aware of the applicant’s rights without been
informed of Ancash’s application.

[27] Finally, the clear object
of section 69(2)(g) as submitted by Mr. Odendaal may be summarized as

1. In
terms of section 69(2)(g) of the Act, it was a statutory
pre-requisite (and an indispensable jurisdictional fact) for a valid
decision by first respondent to grant the EPLs to second respondent

1.1 Second
respondent was obliged to give the applicant notice in writing of its
intended application and

1.2 First
respondent had to be satisfied that such notice was given, hence the
requirement that written proof of such notice should be supplied to
first respondent….

2. It
is noteworthy that second respondent has not met the challenge
regarding a non-compliance with section 69(2)(g) of the Act. This,
in the circumstances, should be construed as an admission of
non-compliance with the provision by second respondent…..

3. The
failure to comply with section 69(2)(g) constitutes non-compliance
with the audi alteram partem rule.

4. Inherent
to fair and reasonable administrative decisions is the application of
the rules of natural justice and the audi alteram partem –rule.
The audi alteram partem rule has been constitutionally entrenched in
Articles 12 and 18 of the Constitution. Article 18 of the
Constitution requires reasonable decision-making on a procedural as
well as a substantial level.

Fishing v Minister of Fisheries and Marine Resources, 1998 NR
147(HC), 150 G-H…..

5. The
duty to act fairly is concerned only with the manner in which
decisions are taken. It does not relate to whether the decision
itself is fair or not. Procedurally fair administrative action is
therefore required, irrespective of the merits of the decision. See
Administrator Transvaal v Zenzile, (1991(1) SA 21(A), 37D)”

[28] The submissions are
unassailable. The suggestion made by Mr. Barnard is untenable as it
would clearly defeat the objects submitted by Mr. Odendaal and Mr.
Corbett was well advised not to pursue the point. The provision
leaves no room for
substantial compliance therewith. The undeniable fact
is that
non-compliance deprived the applicant of the opportunity of accessing
Ancash’s application to enable the applicant to make relevant
representations to the Minister and also raise the issue of
plagiarism in its proper context.

[29] It also follows that the
review application is not academic as Mr. Barnard suggested because
the applicant is the holder of EPLs in the area and for that

reason mandatory compliance
with the mandatory provisions of the Act by the Minister was “an
indispensable jurisdictional fact” as Mr. Odendaal submitted.

[30] Accordingly, the
application must succeed and I need not consider the rest of the
argument advanced by counsel in the matter. In the result, the
following order is made:

  1. The application is allowed in
    terms of paragraph 3.1 of the notice of motion.

  1. The respondents shall pay the
    applicants costs jointly and severally, the one paying the other to
    be absolved, including the costs of two instructed counsel.



Adv. Odendaal, S.C

Assisted by: Adv.

Instructed by:
Koep & Partners


Instructed by:
Government Attorney


by: Diekmann Associates