CHINESE-OWNED mining company XinFeng Investments has accused the Minister of Mines and Energy, Tom Alweendo, of taking the law into his own hands by revoking their lithium mining license issued in September 2022.
These allegations were made during the hearing of an urgent application brought before the court by XinFeng Investments. The company sought an interdict against the minister’s decision to revoke its mining license and requested that the decision be set aside.
The mining company, represented by its lawyer Nambili Mhata, argued that the minister’s decision should be reviewed, corrected, and set aside on the basis that once a final decision is made to grant a mining license, the decision maker does not have the power to revoke it.
“An administrative decision is deemed to be final and binding once it is made. Once made, such a decision cannot be re-opened or revoked by the decision maker unless authorized by law, expressly or by necessary implication. The animating principle for the rule is that both the decision maker and the subject know where they stand. At its core, therefore, are fairness and certainty,” remarked Mhata in his heads of argument.
He further argued that the finality of a decision by an administrative official arises when the decision is published, announced, or conveyed to those affected by it.
In response, Alweendo claimed in his affidavit that XinFeng’s technical report, submitted as part of the obligations under Section 91 of the Minerals (Prospecting and Mining) Act, did not meet the predetermined standards. He alleged that the documents lacked a ministry date stamp, despite the administrative staff’s practice of receiving and date stamping all documents presented to the ministry. He also said that the report contained inaccurate or misleading material, as it appeared to be copied and pasted from other sources.
The minister added that despite the deficiencies in the technical report, an internal geologist had evaluated the application and did not raise any issues that would prevent the issuance of the mining license. The geologist had recommended granting the license.
Alweendo claimed that XinFeng filed a revised work program in November of the previous year, indicating its intention to export crushed ore lithium carbonate. The company had also applied for an export license for crushed ore.
According to Alweendo’s affidavit, when a team from the ministry visited the mining site, they discovered that the company planned to ship a large amount of ore to their processing factory, Tangshan XinFeng, in China for industrial testing.
“The committee decided to re-assess the technical and feasibility reports submitted in support of the application, and the discrepancies on the basis of which the license was eventually revoked were discovered in November,” reads Alweendo’s affidavit.
The company’s revised work program indicated its intention to extract and export substantial quantities of lithium ore. The minister deemed this development concerning and it led to the revocation of the license. The company’s initial application only allowed for the extraction and export of 135,000 tons of crushed ore.