THERE appears to be no end in sight in the court battle between Australian mining company Metal Australian Limited and businessperson Malakia Josef Amakutuwa over the ownership of two exclusive prospecting licenses (EPLs) for uranium in Namibia. The beleaguered Supreme Court has increasingly come under the cosh from various quarters in recent months over what some consider highly marginal judgements. This includes the Malakia Amakutuwa case, as well as the decision to refer nine opposition parties challenge to last years National Assembly elections back to the High Court. Only this past week, Judge of Appeal Ronnie Bosielo appeared to criticise the tone of the Supreme Court judgement referring the case of alleged kidnapping of minors by former Judge Pio Teek back to the High Court. Bosielo presided over the original case in 2006, but he seemed to suggest that the Supreme Court judgement undermined his judicial independence and discretion. In a letter dated 9 December and addressed to the Registrar of the Supreme Court and High Court, Advocate Ephraim Kasuto, who represents Amakutuwa, detailed his reasons for filing a Notice of Irregularity. The letter came in response to a request by the Registrar Elsie Schickerling for Advocate Kasuto to back up his claims of irregularities regarding the judgement of the Supreme Court in the case. The court handed down the judgement in question in a Supreme Court appeal over the validity of the two agreements relating to the purported sale of the licenses by Amakutuwa to the Australian company. The Supreme Court reversed a High Court judgement in favour of the appellants Metals Australia and its Namibian subsidiary Metals Namibia. The High Court last year ruled that the agreements under which the EPLs were sold to Metals Australia were null and void and ordered that the ownership revert to Amakutuwa. After the Supreme Court judgement, Advocate Kasuto and his client objected based on the second agreement on which the plaintiffs based the sale of the licenses, and filed a notice of irregularity to the Supreme Court judgement. Schickeling in a letter dated 29 November, gave Kasuto seven days to provide reasons why she should consider his challenge of the Court of Appeal judgement. Kasuto maintained that the second agreement on which the appellants based their appeal to Supreme Court was illegal. The agreement in question concerns an amendment to the first Heads of Agreement, which Amakutuwa initialled with Brian Moore of Australia United Gold for a possible joint venture project under the name of Reliance Investment Agencies cc (RIA). Thus, the objection was that this point [of the amendment to the second agreement] was not raised in the High Court and it cannot be done in the Supreme Court, Kasuto argued in the letter. According to the Heads of Agreement, RIA was to take up 20 percent equity in the licences, while Amakutuwa would receive US$30,000 and in addition acquire 8 million ordinary shares in New Mining Pty Ltd. The aim of the second agreement was for Amakutuwa to transfer the EPLs into RIA, in which he was the director. However, the transfer of the EPLs could not take place because the company had not registered with the Ministry of Trade, Advocate Kasuto said. The licences were instead, later transferred into New Mining Company Limited pending a formal agreement and the registration of RIA. In his affidavit to the High Court, Amakutuwa had argued that the agreements for transferring the EPLs to RIA were void, because the company was not yet in existence. The transfers were also in contradiction with Section 46 of Mineral Rights Act of 1999, which prohibits close corporations from holding mineral rights. It was on this basis that the High Court declared the agreements null and void, and ordered the transfer of the EPLs back to Amakutuwa as the rightful owner. Advocate Kasuto further argued that, I have a duty as a legal representative to point out to the Supreme Court or the Chief Justice any irregularity committed by the court in the hearing of an appeal, which I deemed to be valid. They have argued that the judgement that was prepared by South African-national, Justice Kate ORegan was based on new evidence that was never part of arguments in the High Court judgement and on which the appeal was based. Amakutuwa a qualified metallurgist allegedly sold the uranium EPLs 3306 and 3308 estimated to be worth of billions of Namibian dollars to Metals Australia in November 2005. In evidence before both courts, he maintained that the Australian company had deceived him during negotiations to establish a joint venture to explore the uranium concessions the Ministry of Mines and Energy granted him in 2005. However, the appellants brought up the issue in their argument during the appeal in the Supreme Court that the second agreement constituted a transaction or compromise. They argued that the non-existence of RIA did not render the contract void because Amakutuwa had signed the contracts on behalf of the company and he was thus personally bound to perform in terms of the agreement despite the non-existence of RIA. They further claimed that Section 46 of the Mineral Act was not a bar to the validity of the contracts. Certain Judges reportedly viewed the notice of irregularity as an attempt to obstruct the implementation of the Supreme Court judgement. Nonetheless, Kasuto was adamant that raising the issue of irregularity was consistent with the provisions of Section 17 of the Supreme Court Act, read with Article 81 of the Namibian Constitution. A legal expert, who requested the newspaper not to mention his name, said the decision by the Court of Appeal raises many questions. Since the Supreme Court is not the court of first instance, the legal expert noted that the Judges should have sent the case back to the High Court, because of the new legal points raised during the appeal. There is clear irregularity in the judgement and I think what the Chief Justice needs to do is to establish a platform to see how best to resolve this matter, because this judgement is riddled with irregularities. I think one of the possible routes is to call the two parties to the table and try to settle the matter, the lawyer said. In her judgement, Justice ORegan confirmed that neither Metals Australia nor its Namibian subsidiary raised the proposition that the second agreement constituted a compromise in the High Court. Kasuto therefore, remains adamant that it was highly irregular for the Supreme Court to allow the appellants to raise the issue. However, ORegan argued that where a new legal point is raised on appeal two questions arise: is the point covered by the pleadings and would there be any unfairness to the other party were it to be raised on appeal? If the legal point is covered by the pleadings and no unfairness to the other party would arise, then the court is bound to deal with it. ORegan also played down Amakutuwas assertion that the two companies pressured him with threats of litigation to sign the second agreement. The threat of litigation is part and parcel of commercial life and will not on its own be the basis for concluding that an otherwise properly concluded contract is void, she argued. She further said that, I conclude therefore that the second agreement is a valid agreement of compromise, intended to replace a previous agreement between the parties, whether valid or not and intended to avoid litigation between them. For this reason, ORegan concluded that Amakutuwa has no contractual basis upon which he could challenge the loss of the EPLs. The consequence of this conclusion is that it is not necessary to determine whether the first agreement was void or not, nor is it necessary to determine the arguments relating to Section 46 of Mineral Act or other grounds advanced by the respective litigants.
