The Chinese-owned lithium mining company Xinfeng Investment has lost its mining licence.
The company lost the licence as a result of a judgement in which Windhoek High Court judge Thomas Masuku on Friday reviewed and set aside former minister of mines and energy Tom Alweendo’s decision to grant a mining licence to Xinfeng Investment in September 2022.
Xinfeng’s application for a lithium mining licence in Namibia contained misleading information, Masuku found.
He also found that misleading technical information in Xinfeng Investment’s licence application materially affected Alweendo’s decision to grant the company a 20-year mining licence.
Based on that finding, Masuku reviewed and set aside the mining licence that Alweendo granted to Xinfeng Investment, and referred the company’s application for a mining licence back to the mines minister to be reconsidered.
Xinfeng has considered Masuku’s judgement and given instructions for an appeal to the Supreme Court to be lodged against the judgement, lawyer Nambili Mhata, who is representing the company, said in response to an enquiry yesterday.
An appeal would have the effect of suspending the orders made by Masuku in his judgement.
Masuku’s judgement was delivered in a case in which Xinfeng sued the minister of mines and energy, the mining commissioner and the environmental commissioner in connection with a decision of Alweendo, taken in April 2023, to revoke the mining licence he had granted to Xinfeng.
An interim interdict stopping the implementation of Alweendo’s decision to revoke the licence was granted by the High Court in June 2023.
In a counter-application filed after Xinfeng approached the court, Alweendo asked the court to review his decision to grant Xinfeng a mining licence or to declare the mining licence as invalid on the ground of fraudulent misrepresentation, alternatively misleading information, in the company’s application for a mining licence.
The area over which Xinfeng Investments received a mining licence is situated near Okombahe, west of Omaruru.
The company has in the past faced allegations that it was exporting large quantities of lithium ore from Namibia to China, instead of processing the ore in Namibia.
MISLEADING
Alweendo alleged in an affidavit filed at the court that Xinfeng used plagiarised material in its application for a mining licence.
The questioned material included a report done for a company involved in lithium exploration work south of Karibib, a doctorate degree thesis submitted by a student of the University of the Witwatersrand in South Africa in 2014, and a report on a lithium mining project in Nevada in the United States of America.
Reports submitted by the company in its licence application did not accurately describe work performed for its lithium exploration and mining project, Alweendo also alleged.
Masuku noted in his judgement that Xinfeng informed the court it had invested about N$600 million – a figure that it subsequently increased to N$800 million – in its lithium exploration and mining project in Namibia.
The company’s significant investment and the interests of its workers and communities affected by its operations do not justify the preservation of the mining licence granted to Xinfeng, though, Masuku said.
He stated: “The misleading information affected the technical foundation for allowing exploitation of the resource. Keeping the licence in force for its remaining term would permit continued reliance on a statutory assessment which has not lawfully been established. The financial scale of a project cannot itself supply the missing technical foundation or require the court to certify its adequacy.”
Masuku also found that Alweendo did not have the required authority to revoke his own granting of a mining licence to Xinfeng, and that he had to take legal action to have the licence revoked.
On Alweendo’s allegation that the company’s licence application contained fraudulent material, Masuku said he made no final finding that any particular director, employee or consultant of Xinfeng committed fraud.
However, he added that “the grant [of the licence] was materially affected by misleading information concerning the technical basis required for its lawful exercise”.
Masuku said: “The rule of law requires integrity in the making of administrative decisions and in the means employed to correct them. In protecting Namibia’s mineral wealth, public officials must remain within the powers entrusted to them.
“The same legal order that protects a licence holder against unauthorised administrative action also subjects the basis of its licence to judicial scrutiny.
“Lawful authority and reliable information must therefore be in confluence to permit the exploitation of those resources.”
