By:Justicia Shipena
In the Xinfeng Investments case, the lawyers for Mines and Energy Minister Tom Alweendo argue that the company misrepresented the work of others, particularly in areas such as exploration work, mineral resource estimation, and mining methods, all of which the Minister was required to consider before granting mining licence 243.
On April 28, Alweendo decided to revoke his decision to award the Chinese company a mining licence (ML243) in the Daures constituency in the Erongo region.
The Windhoek High Court heard arguments from both Xinfeng and the Mines and Energy Ministry on Tuesday.
Alweendo’s lawyer submitted that the decision of the Minister to grant ML243 is vitiated ab initio by the applicant’s fraud, because the applicant put up works of others as its own, particularly on matters such as exploration work, mineral resource estimate and mining methods, which are matters the Minister had to take into account before he granted ML243.
“It is trite that fraud unravels everything, and the Minister could not in the circumstances be said to be functus officio,” saidGerson Narib, Alweendo’s legal representative from Namlex Chambers.
Narib concluded that Xinfeng’s dishonesty tainted the Minister’s decision to grant ML243 from the outset.
In response to whether Alweendo has the authority to revoke the licence due to Xingfeng’s deception, the Narib stated that the answer relies on whether the decision to award ML243 was a choice at all.
The lawyers added that the Minister exercised the powers granted to him by section 92 (2) of the Act when he issued ML243 on September 6, 2022.
Narib contended that no decision in the jurisdiction appears to deal directly with the effect of a fraudulent misrepresentation on an administrative decision.
Xingfeng claims it submitted technical papers to Alweendo just before the decision to issue ML243 on June 15, 2022.
Alwendo, on the other hand, testified that the applicant submitted a technical report on July 27, 2022.
“We have demonstrated that material aspects of that report were plagiarised from the PhD dissertation and a report by Desert Lion. It is also apparent from various reports submitted by the Xinfeng that it took the trouble to present works of others as its own without in any shape or form acknowledging and referencing such works.”
Narib said that there was no evidence in the Xinfeng reports that it was referring to work done by others.
According to Alweendo’s counsel, this issue was revealed only after the applicant applied for a new mining programme.
In this light, Narib submitted that the Xinfeng knew of the purpose for which the above reports were required.
“We submit that the applicant (Xinfeng) can, in law, not hide behind its agent as the one who may have perpetrated the fraud, because the acts of its agent are attributable to it,” Narib submitted.
Xinfeng, according to Narib, has not made out a case for an interim interdict because it has not proven even a prima facie claim to such relief.
Meanwhile, Likulano Sauiyele January, the director of Xinfeng Investments (Pty) Ltd, contended that Alweendo appears to be confused about what occurred regarding the submission, review, and consideration of Xinfeng’s application, including its technical report.
He explained that Xinfeng filed its technical report on March 22, 2022, in compliance with the procedure and direction from the Minister’s officials.
After submitting that technical report, January stated that Xinfeng realised it was filed in error.
“Xinfeng then, with the concurrence of the Ministry, submitted its correct report on 15 June 2022. The correct report having been submitted, the minister and his officials at the relevant times knew that the report submitted during March 2022 was submitted in error and was thus not the applicable one,” Januarysaid.
He went on to say that after Xinfeng submitted the correct technical report in June 2022, the company was asked to give further information following the review and consideration of their application.
January claimed that the incorrect material referred to by Alweendo was previously studied and evaluated prior to the Minister’s decision to grant the mining licence, based on his own admission and the admission of his employees during the presentation in August 2022.
“I deny that the reports submitted by Xinfeng include misleading information which could have vitiated the Minister’s decision to grant ML243,” Januarytestified.
Furthermore, January stated in his replying affidavit that Alweendo is combining fraud with plagiarism.
“The two are not one and the same. Where Xingfeng in its application referred to the work of others, there is nothing wrong in the realm of mining practices for such a scenario.”
He further said that Alweendo and his officials cannot depend on the technical report filed on March 22, 2022, because they were notified that it was submitted in error.