*Minister Moagi reprimanded for refusing to renew licence
*Minister’s decision not to renew Gcwihaba Resource Limited prospecting licence was bad – Judge Maripe
Justice Bugalo Maripe of Maun High court has reprimanded Minister of Minerals and Energy, Lefoko Moagi over his decision not to renew a mineral prospecting license for a Canadian mining company, Gchwihaba Resource Limited., which discovered tonnes of Iron ore deposit near Okavango Delta in Shakawe region in 2012.
Maripe has further ordered government to have renewed such a license within 14 days, counting from Friday, December 15th, 2023, when the order was made.
Calling the minister’s decision bad and setting it aside through a 109 paged judgment, Maripe noted that Moagi acted based on “irrelevant considerations,” and that his decision was illegal, unreasonable and irrational.
“The reasons given by the minister are not in sync with those provided for under the Act. The minister rejected the application for a different reason. That reason is not one of the permissible basis for rejecting an application for renewal,” Noted Maripe who added that by acting outside the parameters provided by the legislature, Moagi, “Therefore acted illegally.”
Moagi had in rejection of Gchwihaba’s application indicated that the coordinates of the said license encroaches into the buffer zone of the Okavango Delta; a World Heritage Site protected under United Nations Educational, Scientific and Cultural Nations (UNESCO) regulations.
Further Moagi indicated that prospecting activities are prohibited within the buffer zone of the delta and if permitted, then it has to be done under strict statutory measures for environmental control.
The fear expressed by the Minister was that if they allowed Gchwihaba to continue with prospecting activities within the buffer zone, then the country risks condemnation from environment, conservation community and international pressure groups.
However the judge indicated that such irrelevant fears clouded the minister’s judgment and caused him to err, “The concerns about international pressure and ostracism, in circumstances where no law prohibits activities in the buffer zone are matters irrelevant. They have unduly clouded the Minister’s mind to his powers and the purpose of the Act and so deprived the applicant of an opportunity to conduct its activities which might benefit the State in the long run.”
The Iron deposit discovery made is particularly a relevant factor which according to Maripe, ought to have been taken into account for its potential to impact government coffers.
Maripe further pointed out that in fact the Minister was the one who created the whole mess by presenting wrong information to UNESCO and putting himself under unnecessary pressure.
He agreed with Gchwihaba attorneys that at the time the applications for renewal was made, it was clear that the company was not in breach of the license conditions, in particular those relating to environmental protection, “What has happened now is that there is a development, the establishment of the buffer zone, which the Minister wants to keep free from all prospecting activities.”
The point raised was that Moagi used his powers to ban prospecting and or mining activities altogether in the buffer zone, when no legislative framework forbids it.
“First it appears to be a complaint that the applicant has held the licenses for too long, yet those were issued and renewed over time by the Minister himself. He cannot be heard to complain of a situation that he has himself brought about. Second, the refusal to renew the license is influenced by the possible embarrassment and other negative reactions from the international community that the Minister envisages might befall the country.
Since prospecting activities are not prohibited in the buffer zone, the Minister’s decision is based on irrelevant considerations. The international community cannot be expected to complain and revolt over that which is legal,” further noted Maripe.
On the issues of Environmental Impact Assessmanet (EIA) the judge said that the minister closed his eyes to matters that are within his own statutory powers to resolve and to ensure that the negative position he envisages is prevented, “He has the matters under his control.”
The conflict between government and Gchwihaba begun in 2015 after government establishment the buffer zone over an existing licensed operational area and tried to ban the company’s operation in the area by refusing to renew its license.
In 2021 government made it clear that it will not renew the license in question and triggered a chain of exchanges between the two parties, with Tsodilo Resource (PTY) LTD, which is a parent company to Gchwihaba taking the lead in the discussions and ultimately taking the matter to court.
Government lost the case with costs.
