savannah timeline, page-3

Timelines aside I have shifted focus to the merits and have been trying to shed some more light for myself on the Savannah case.

Seems to me the view of many of this thread is that this case and the uncertainty as to the merits and validity of the claim is a big source of drag on the sp – a fair enough conclusion if you want to look for something beyond simple shyte market sentiment and sp manipulation which are two other fairly useful reasons with possible merit. The crux of the Savannah case is essentially that it questions the Minister’s power to grant EPL3345 (the Welwitschia license).

The short story is that I’m really lacking sufficient detail to reach what I would be comfortable calling a fully informed conclusion. I need to better understand the actual legal basis for Savannah’s challenge to the Minister’s power to grant EPL3345. Chris, Tibbs et al may have looked at this in some detail before so I’d be interested to have anyone out there table what they know that might add some clarity.

Aside from the obvious macro economic / mining industry considerations that would stem from allowing what on the face of it seems a frivolous and vexatious claim to succeed (and in doing some undermine the existing legislative platform with the attendant uncertainties that would carry for the economy as a whole) I have sought to take a closer look at the relevant legislation, that being the Minerals Act 1992 – in particular, PART VIII - General provisions relating to mineral licences.

Below is an excerpt from the Namibian Minerals Act which is the primary piece of mining legislation in Namibia regulating the industry - its purpose being for “the reconnaissance, prospecting and mining for, and disposal of, and the exercise of control over, minerals in Namibia; and to provide for matters incidental thereto”.

For anyone interested below is a link:

http://www.mme.gov.na/mines/acts/act_minerals.html

Specifically, I have been looking at Part VIII:

47. Applications for, or for renewal or transfer of, mineral licences, or for approval to grant, cession or assignment of interests in mineral licences, or to be joined as joint holders of such mineral licences or interests.

(1) Subject to the provisions of this Act, an application for -

(a) a mineral licence or the renewal thereof;

(b) the amendment of a mineral licence; or

(c) the approval of the Minister for the transfer of a mineral licence, or the grant, cession or assignment of any interest in any mineral licence, or to be joined as a joint holder of a mineral licence or such interest,

shall be made to the Minister in such form as may be determined in writing by the Commissioner and shall be accompanied by such application fee and such licence fee as may be payable in respect of the licence period or first licence period, as the case may be, of such licence as my be determined under section 123.

(2) Subject to the provisions of this Act, the Minister -

(a) may grant on such terms and conditions as may be determined in writing by him or her, or refuse to grant an application referred to in subsection (1); or"

It seems to me (on the basis of the wording of the legislation above) that broad discretion is afforded to the minister in the granting of mineral licenses and how decisions to do so are reached. Presumably, it is going to be a major uphill battle for Savannah to blow holes in the exercise of a discretionary power afforded to the minister under this Act.

The basis for the minister’s authority seems quite clear to me – it is enshrined in the Act. The actual existence of and legal basis for the power is an issue quite separate to questioning the way in which it is exercised the latter typically would be an issue for judicial review if brought into question. All you experts on Dutch-Roman law out there feel free to chip in.

I’d be interested to read the Savannah affidavits and would be better able to comment and make a realistic assessment of each side’s case knowing the full details of the parties’ respective arguments. On the information currently to hand Savannah have a decent hill to climb and their case is as much nuisance value as anything else. But if those WA muppets like Carpenter can allow things like the RIO/CAZ fiasco to occur then there is always a possibility, however slim, that might be that this could carry some realistic jeopardy for BMN and in the current climate the tolerance for that is quite low.

It is also interesting to note that the Ministry of Mines and Energy mission statement is – “By promoting, facilitating and regulating the responsible development and sustainable utilization of Namibia’s mineral, geological and energy resources through competent staff, innovation, research and stakeholder collaboration in a conducive environment for the benefit of all Namibians.”

On the basis of the legislation, coupled with the fact that there is nothing about the Savannah claim that serves the ultimate mission of the ministry, my assessment of the likelihood of a positive outcome is 80:20 in favour of BMN.