Gov’t wins P12m suit over revocation of prospecting license
Government has won a P12 million suit that was launched against it for revoking a Prospecting License. Justice Michael Leburu ruled in favour of government indicating that the Plaintiff- Harsco Surface Solution ( Pty) Ltd did not have a mining license but only a prospecting license, and this did not mean the company will automatically be granted the mining license.
“The plaintiff’s quantum of damages is thus premised on the minerals ( gravel and pit sand) it could have mined and sold. At this stage, it is of fundamental importance to outline that the plaintiff only held a prospecting license, which may be equated to a precursor to a mining license. It was not a foregone conclusion that a mining license will be issued to the plaintiff,” explained Justice Leburu in his judgement. Government through the Ministry of Mineral Resources, Green Technology and Energy Security was sued by Harsco Surface Solutions ( Pty) Ltd, where there are two claims in casu, instituted against the two defendants - Attorney General being 1st Respondent and the ministry being the 2nd Respondent. The claims, namely the sum of P322, 000 being actual damages suffered by the plaintiff as a result of the defendants wrongful and unlawful revocation of Prospecting Licenses issued by the defendants to the plaintiff. Such damages represented actual expenses the plaintiff suffered during prospecting of gravel and pit sand. The parties reached settlement on the claim and filed a draft consent order, which was accordingly made an order of Court.
The second claim is for the sum of P12 million. This claim, according to the judge is couched as loss of prospective income, in the sum of P12 million, calculated at a lower market rate of P30,00 per cubic metre, of gravel and pit sand, over the concerned area measuring 436 905m2.
By consent, the parties agreed that since the factual matrix underpinning the claim were common cause, the claim should then be resolved by way of a stated case, in terms of Order 35 Rule 1 of the High Court Rules. The parties subsequently filed the stated case for determination.
According to the judge from the stated case, the fundamental question that springs for determination is the liability of the defendants. Once liability has been established, then the quantum of damages will of necessity, arise.
“From the facts, it is common cause that the plaintiff is the holder of Prospecting Licenses no PL031/ 17, PLO32/ 17 and PLO33/ 17. License 033/ 17 was for a period of two years that is from 1st April 2017 to 31st March 2019. The Prospecting Licenses were for industrial minerals, namely gravel and pit sand. The sites where the prospecting was to be undertaken were on tribal land, under the Bamalete Land Board. The plaintiff, accordingly applied for surface rights,” Justice Leburu stated. He noted that on the 5th June 2017, the 2nd Defendant wrote the plaintiff requesting it to avail and surrender the said Prospecting Licenses, on the ground that same were needed by the Government, for the extraction of gravel, to be used in the construction of the Gaborone – Boatle dual carriageway. He said subsequent thereto, on the 24th July 2017, the 2nd defendant wrote to the plaintiff, stating its intention to revoke and or alter the three Licenses in question.
“The 2nd defendant, as justification thereof, stated that the sites attached to the Licenses had already been earmarked and applied for by the Department of Roads. The plaintiff, per its letters dated 1st August 2017 and 10th August 2017, objected to the intended revocation of its Licenses.
“On the 29th August 2017, the 2nd defendant revoked License PLO31/ 17 and PLO33/ 17. License No PLO321/ 17 was amended. The 2nd defendant, after the said amendment and revocation of the afore- stated Prospecting Licenses, then issued Mining Rights on the same areas, as in the plaintiff’s Prospecting Licenses to a private company called CCC ( Pty) Ltd,” Justice Leburu said.
He added that the said company has since mined the same area for gravel and pit sand, for usage in the construction of Gaborone - Boatle dual carriageway, which has since been completed. He explained that a holder of a mining license, invariably, has a right to, directly or indirectly, carry out operations to win or dig out minerals. Justice Leburu pointed out that the plaintiff was not a holder of a mining license, and thus it was not entitled to mine for minerals.
He added “Prospecting licenses are issued by the Minister, responsible for Mines and Minerals, pursuant to section 14 of the Act. In terms of section 24 of the Act, the holder of a prospecting license shall not, without the written permission of the Minister, remove any mineral from a prospecting area, except for purposes of having such mineral analyzed, valued or tested in Botswana. At all material times herein, the plaintiff did not have such permission to mine”.
The judge indicated that the plaintiff is claiming damages against the defendant for loss of revenue or profits it could have earned if the prospecting licenses had not been revoked and amended.
Is such a delictual claim justiciable, having regard to the extrapolated law relating to mines and minerals; above, he asked?