REPUBLIC OF NAMIBIA
"Reportable" 
CASE NO: A 140/08
IN THE HIGH COURT OF NAMIBIA
In the application of:

and

CORAM:    DAMASEB, JP

JUDGMENT

1. Dispensing with the forms and service provided for in the rules of Court and hearing this matter as one of urgency;

3. Granting to applicant such further and/or alternative relief that this honourable court may deem fit;
4. Directing respondent to pay the costs of this application.
5. Directing and ordering that, pending the finalisation of this matter, the orders set out in paragraph 2.1 and 2.2 above shall serve as an interim interdict with immediate effect.

7. Granting to applicant such further and/or alternative relief as this honourable court may deem fit." ( My underlining for emphasis)

The parties

[3] The Applicant is Otjozondu Mining (Pty) Ltd, a private company with limited liability duly incorporated in accordance with the company laws of Namibia. The respondent is Purity Manganese (Pty) Ltd, a private company with limited liability duly incorporated in accordance with the company laws of Namibia.

Common cause facts

[4] It is common cause that the applicant holds an exclusive prospecting licence ("EPL") 3879. The respondent holds a mining licence ("ML") 35 A, B and C. The area where the respondent conducts its mining operations forms part of a larger land area covered by the applicant's EPL 3879.
Essence of dispute

[5] The applicant characterises the source of the dispute between the parties as follows:

APPLICANT'S EVIDENCE

Founding affidavit of Mr. David Saul Shimwino

[6] The main supporting affidavit on behalf of the applicant is deposed to by Mr. David Saul Shimwino, a director of the applicant who avers that he is duly authorised to depose to the founding affidavit and to bring the present proceedings.

[7] According to Shimwino, the applicant is the holder EPL 3879, granted on 28 January 2008 by the Ministry of Mines and Energy ("the Ministry") in terms of the

[8] Shimwino asserts that EPL 3879 entitles the applicant to explore, inter alia, the base metal manganese in the area covered by the EPL or in close proximity thereto. According to Shimwino, the respondent on the other hand, holds three mining licences ("MLs") with numbers 35 A, B and C entitling it to mine for the base minerals manganese in the areas to which those licences relate. Shimwino avers that to his knowledge no present mining activities are taking place within the areas covered by the respondent's MLs 35 A and C.

[10] According to Shimwino, the respondent had in the past resorted to dishonest and unlawful activities in relation to the areas over which the applicant holds EPL's 3456 and 3537 -such as removing stock piles of manganese bearing ore, or Alluvial manganese ores ('nodules'). Shimwino states that these activities of the respondent have the effect of undermining the endeavours of applicant to establish itself as a successful mining enterprise in the areas to which its EPL's relate and are in breach of section 3 and section 133 respectively of the Act. Shimwino states that these illegal activities of the respondent demonstrate its capacity to employ unlawful methods to undermine the rights of competitors.

[11] To deal with the illegal activities of the respondent, Shimwino asserts that he, on behalf of the applicant, wrote a letter to the Mining Commissioner on 26 March 2007 bringing to the Commissioner's attention the violations by the respondent which includes the removal of stockpiles of manganese from areas covered by the applicant's EPL's 3456 and 3537. On behalf of the Commissioner, the Government Attorneys then responded on 2 April 2007 stating that the matter was under consideration and that the respondent had been asked to refrain from interfering in any manner whatsoever with the rights held under EPL's 3537 and 3456, failing which the Minister will take appropriate action against the respondent.

[13] To buttress the allegation about the respondent's illegal mining activities on the applicant's EPL 3789, Shimwino relies on a sketch plan prepared by van der Merwe, a geologist, purporting to show the boundaries of the areas covered by the respective licences of the parties and in respect of which either party should exercise their rights in terms of their respective licences. Shimwino asserts that ML 35B falls within the ambit of EPL 3879 which - according to van der Merwe- shows that the respondent was unlawfully conducting mining activities outside the parameter of ML 35B and encroaching on the applicant's EPL 3879 in contravention of section 133 (f) of the Act.

[14] Shimwino further deposes that the land area on which the respondent's alleged illegal mining activities were being carried out was determined by van der Merwe by the use of a hand-held satellite GPS navigational system whose accuracy is a margin of error of a maximum of 10 meters. By reference to annexure 'DS 6', he says that this exercise established that the respondent's mining activities occurred at locations 1-5; that the activities in locations 3 and 5 was lawful but that those in locations 1, 2 and 4 are between 150 and 250 meters outside the parameters of mining licence ML 35B of the respondent and within the areas covered by the applicant's EPL 3879. Activities at location 1, 2 and 4 were in breach of the applicant's EPL 3897 rights and thus constitute criminal conduct in terms of sections 3 and 133 of the Act.

[16] Shimwino's affidavit is accompanied by the supporting affidavit of Mr. Heino Hamman and the confirming affidavit of Mr. Carel Lodewyk Van der Merwe, respectively.

Supporting affidavit of Mr. Heino Hamman

The confirming affidavit of Mr. Carel Lodewyk Van der Merwe

[19] Van der Merwe's evidence is that the plotting that he conducted to determine the boundaries of the respective licences of the parties and the alleged illegal mining by the respondent is was determined in the report at location 5 by reference to coordinates 0806019 and 7647848, at location 3 by reference to coordinates 0806168 and 7647572, at location 1 by reference to coordinates 0806040 and 7647396; at location 2 by reference to coordinates 0806067 and 7647472; at location 4 by reference to coordinates 0805719 and 7647557. Locations 5 and 3, he states, are outside the parameters of EPL 3879 but that locations 1, 2 and 4 are within the area covered by the applicant's EPL 3879.

THE RESPONDENT'S CASE

Answering affidavit of Mr. Asaf Eretz

[21] This deponent is a Project Advisor of the respondent who sates that his denials of the applicant's allegations are done in consultation with Mr. Boris Bannai, who because he was out of the country could not file an affidavit and that same is expected to be filed upon his return and before the hearing of the matter.

[23] Eretz denies that the respondent was involved in dishonest and unlawful activities; disputes the Commissioner's conclusions and characterises the response from the Government Attorneys dated 2 April 2007 as irrelevant.

[24] He denies that Van der Merwe was qualified to offer an opinion on the aspect of land surveying and denies all allegations of encroachment by the respondent on the applicant's EPL 3879. Eretz's substantiates the respondent's stance that it is not encroaching on EPL 3879 with a survey report rendered by land surveyors from Strydom & Associates (annexed to the answering papers) and the confirmatory affidavit of Reinhard Steyn which shows that the respondent's operations are lawful and within the boundaries of mining licence ML 35B. S& A's findings and conclusions purport to prove that the report by Van der Merwe is unfounded to the extent it suggests that the respondent illegally mined on the applicant's EPL 3879. The deponent denies any allegations inconsistent with the findings of S & A to the effect that the respondent's findings were confined to its ML- and prays for a punitive costs order against the applicant.

Ad the affidavit of Heino Hamman

[26] Eretz denies Hamman's allegation that during the latter's tenure with the respondent it engaged in illegal mining on the applicant's EPL and enriched itself at the expense of the applicant. He asserts that all mining activities conducted by the respondent are taking place on its ML. He states that Hamman is a disgruntled employee spreading falsehoods about the respondent and that Steyn's evidence shows that the respondent is mining in its licence area.

[27] Eretz denies that any manganese shipments were excavated from the area covered by the applicant's EPL 3879. He also denies that the respondent failed to submit any reports to the Ministry of Mines and asserts that the respondent maintains records in terms of its ML.
Ad affidavit of Carel Lodewyk Van der Merwe

[28] The witness avers that Van der Merwe is a geologist and not a land surveyor and therefore not qualified to give opinion evidence in a matter involving demarcation of land. Eretz questions the process used by van der Merwe to calculate the coordinates and refers the Court to the affidavit of Steyn.

Confirmatory affidavit of Mr. Reinhard Steyn

"We have to mention that submitting survey records for such a survey is not standard procedure and was done on insistence of Purity Manganese ( Pty) Ltd in order to have these records transparent, readily available and securely filed. Since this is also not a standard cadastral survey it was presented in the form of a farm beacon verification survey with all mining licence beacons placed shown as survey working points."

[32] The report states that in performing this task, S&A used the Bessel 1841 spheroid which is more accurate compared to the WGS 84 - with a difference of 100-200m in positioning. It records that the Bessel 1841 uses physical structures as reference points that can be used to determine the relationship between the outcomes of the previous survey and the present one.

[34] The report offers the following critique of the applicant's witness Van der Merwe:

"Van der Merwe refers to Annexure "CVM1" extensively in his attached affidavit. He refers to locations 1, 2.3,4 and 5 on said annexure. With reference to his affidavit and the mentioned annexure: Co-ordinate datum or reference ellipsoid is not given.
Reference is made (E5 point 11) to marked pegs / beacons but not explained. There is no mention of the nature of points or locations surveyed. If there was any physical point or feature surveyed that could be used as a reference point it would have been quiet(sic) easy to determine a relationship between what was surveyed then and later by us ,thus relating the two surveys to each other, as discussed in 2 above. The map attached as Annexure ''CVM1" furthermore shows only a scale bar and it is a plot super-imposed on a 1: 50 000 map sheet with an approximate scale of 1: 43 000. The co-ordinates as shown are UTM Zone 33 co-ordinates, with no indication as to a reference ellipsoid. Normally this reference ellipsoid will be WGS 84, but it is also possible that the Bessel 1841 ellipsoid could have been used. The difference in the location or position of the plotted points could probable be 100m-200m using the different ellipsoids. Using an UTM map projection introduces a scale on the central meridian of 0.9996 which translates to a 0.4 metre scale correction per kilometre. Scaling off of this map can also possible (sic) be in the accuracy of 50m-100m considering that a 0.001 metre error made when measuring off a 1: 50 000 map represents 50m on the ground."

[35] The report concludes:

APPLICANT'S REPLY

Shimwino

[36] Shimwino alleges that the affidavit of Eretz is vague and constitutes inadmissible hearsay as the averments affecting Bannai are not confirmed by Bannai. Shimwinodisputes that Eretz's in his stated position of Project advisor was possessed of sufficient personal knowledge to depose to the facts he does.

[37] Shimwino avers that the applicant became aware of the unlawful mining activities of the respondent during 26-29 May 2008.

Ad affidavit of Steyn

[39] According to Shimwino, Van der Merwe's report was not presented as an expert's opinion but of a person who can employ a hand-held GPS navigational system for purposes of demarcating the respondent's unlawful mining sites. Shimwino points out that, in any event, the affidavit of Mr. Deintler Engelhard of Volkmann Land Surveyors confirms the accuracy of the method used by van der Merwe.

[42] Shimwino deposes that he personally met with Messrs Engelhard and Sell, of Volkmann Land Surveyors at applicant's site on 9 July 2008. The physical locations of the sites cited as location 1, 2 and 4 were pointed out as stated in the affidavit dated 4 June 2008 and as indicated by annexure 'CVM1 '. The deponent further states that the sites 1, 2 and 4 are confirmed by Hamman as being the locations where the respondent had conducted mining activities during his employment by the respondent.

Affidavit of Mr Diether Engelhard

[43] This deponent is a land surveyor employed by Volkmann Land Surveyors. He was mandated to establish whether the sites indicated as point 1, 2 and 4 on Annexure CVM1 to the affidavit of Van der Merwe, fell within the area of ML 35B or EPL 3879. Engelhard sates that he conducted his survey the 9 July 2008 by the use of the trigonometrically beacon system. That beacon uses the Bessel 1841 ellipsoid as its reference ellipsoid.

ORAL ARGUMENTS SUMMARISED

Respondent's challenge to Shimwino's authority to bring application

[45] The respondent asks for the striking out of Shimwino's affidavit. The case for striking out is based on the failure by Shimwino to produce a resolution by the applicant, a corporate body, authorising Shimwino to bring these proceedings. In the opposing affidavit of Eretz the issue was raised in the following terms:

[46] In the founding affidavit Shimwino had stated:

"I am a director of applicant and duly authorised, in such capacity, to depose to this affidavit and launch these proceedings on behalf of applicant.''
[47] In reply Shimwino did not produce a resolution. He stated as follows in reply:

"[T]he bold, unsubstantiated and sweeping denial of my authority does not, I submit carry sufficient weight for the purposes of constituting any denial to which I have to respond."

[48] Although at the onset of oral argument Mr Bava submitted that lack of authority is not being raised as a point in limine, it remains a relevant issue because it is sought to be relied upon as a basis for seeking a special costs order against the applicant.

[51] I don't think anyone can possibly fault Mr Bava's propositions as applicable principles of law in our jurisprudence when it comes to corporate entities engaging in litigation. All that the cases demonstrate however is the established principle that a company has no soul of its own and acts through human beings who must be authorised to act on its behalf; and, secondly, if there is undisputed evidence that no such authority existed, the purported actions by persons purporting to act on its behalf are invalid. The latter gives rise to the principle that where there is a challenge to authority, those relying on it must prove it. But it is not any challenge; and that is where Mr Bava misses the point: I apprehend, the question is not so much whether in the face of a challenge to authority and being afforded the opportunity to prove of it, Shimwino failed to produce a resolution authorising him; rather it is this: was the respondent, on the facts of this case, justified to question the indubitably necessary allegation by Shimwino that he was duly authorised to act on behalf of the applicant in launching this application?

228J-229A.

RESPONDENT SAYS APPLICANT HAS NO CAUSE OF ACTION

[57] He summarises this evidence as follows:
1.	Van der Merwe was informed by Hamman, the former production manager of respondent, of the unlawful mining by respondent on the land area of applicant's EPL; Hamman personally pointing out the locations of such unlawful mining sites to Van der Merwe;
2.	Hamman had personal knowledge of these locations, as the unlawful mining at such sites had been conducted under his personal supervision.
3.	Significantly, Hamman's personal knowledge of the locations of respondent's mining sites was admitted and conceded in respondent's opposing affidavit;
4.	Van der Merwe plotted and recorded these locations of the unlawful mining sites in May 2008 as respectively locations 1, 2 and 4 , where mining had been conducted by respondent during the period of 1 February 2008 to 16 May 2008;
5.	The plotting and recording was done with the assistance of a handheld GPS navigational system, such system conceded by respondent itself to be "accurate to within plus minus 10 m";
6.	The land surveying firm Volkmann and Associates, acting through Engelhard and Mr Sell, subsequently and in July 2008, conducted a survey to establish the accuracy of Van der Merwe's plotting of the locations of the unlawful mining;
7.	The locations established by Van der Merwe in May 2008 were personally pointed out to Engelhard and Sell by Van der Merwe, and Engelhard confirmed that such locations bore evidence of mining activities;
8.	Having made some generous assumptions in favour of respondent, surveyors Engelhard and Sell established and confirmed that locations 1 and 4, as plotted by Van der Merwe, fell within the area of applicant's EPL, and therefore amounted to a violation of applicant's rights.

DOES APPLICANT'S EVIDENCE SUSTAIN A CAUSE OF ACTION?

[58] Mr Barnard argued that the "plotting" done by Van der Merwe did not require expert evidence but was in any event confirmed by land surveyor Engelhard. He maintained that Hamman, as a former employee of the respondent, confirmed illegal mining activity by respondent in the area shown by van der Merwe to fall within the EPL of the applicant and beyond the ML of the respondent. He says such statement by Hamman is a confession and a declaration against interest because he speaks to activities that occurred while he was in the respondent's employ.

[59] The respondent urges this Court to find that the applicant had singularly failed to establish a cause of action entitling it to the relief that it seeks and that the application stands to be dismissed on that basis. The respondent maintains that the applicant failed to establish an evidentiary basis for the relief it seeks against the respondent. This argument is based on the denial in the answering papers that the report rendered by van der Merwe, a geologist, is correct or that he was qualified to render an opinion on a matter involving land surveying. The respondent asserts that only a land surveyor could have conducted the exercise that Van der Merwe set about doing when, according to Shimwino, van der Merwe was tasked to plot the locations where the respondent had allegedly illegally carried out mining activities on applicant's EPL in breach of the Act.

"It thus appears, in my view and as confirmed to me by Hamman, that the conducting of mining activities by respondent in and on the area of land to which applicant's EPL 3879 relates, followed upon deliberate and intentional decisions of respondent underpinned by financial and commercial considerations, rather than being activities pursued in ignorance of what either applicant's rights, or those of respondent, entailed."

COMMENT

[61] As I have shown, the applicant's case is premised on the allegation that the respondent is unlawfully mining on its (applicant's) EPL. It is obvious from the papers that an exercise requiring some skill is required to determine the precise location of the land area covered by the respective licences of the two parties relative to the other. That exercise is technical in nature and requires specialist insight. The first question is, what sort of skill? The applicant's case appears to be that any person able to use a hand-held GPS navigating system device could perform that function; whereas the respondent states that a qualified land-surveyor would be required to establish the precise location and boundaries of the land areas falling under the licences of either party.

[67] I therefore cannot accept Engelhard's evidence - as support by a qualified land surveyor - of the correctness of the allegations made by Van der Merwe on the central question in dispute: Did the respondent conduct illegal mining activities on the applicant's EPL 3789? The applicant must stand or fall by its founding papers and its application stands to be decided on the basis of the evidence of Van der Merwe as filed in the originating papers.

[68] The applicant takes issue with the affidavit of Steyn, a land surveyor engaged by the respondent to counter the report by Van der Merwe which concluded that the respondent is illegally mining in the EPL of the applicant. The applicant seeks the striking of the entire affidavit and report of Steyn on the following grounds:

1. The only relevance that the affidavit and report of Steyn could have had would be that of disproving or refuting the evidence of applicant to the effect that the locations of respondent's unlawful mining, as plotted by Van der Merwe, do not fall within the area of land to which applicant's EPL3879 relates;
2. The basis upon which Steyn's entire report and affidavit were premised was the mandate to locate ''certain points as ''shown to (Steyn)... by a representative of Purity Manganese (Pty) Ltd by the I name of Guy'';
3. The evidence and report by Steyn are thus exclusively of a hearsay nature, based on what a person "by the name of Guy had conveyed to Steyn. In the absence of any confirmatory affidavit by "Guy'' Steyn's evidence, in its entirety, falls to be struck out as hearsay;
4. Apart from the evidentiary value that Steyn's affidavit and report purported to have relating to the locations pointed out to him by "Guy such report and affidavit would have no other evidentiary value and would, to the extent of any other matter not relating to the pointing out of the locations of the mining sites, be irrelevant.
5. The evidence of Steyn is furthermore irrelevant, in its entirety, in the context as presented, in that:
6. No endeavour was made to link the locations plotted by Van der Merwe to the locations in respect of which Steyn purported to come to his conclusions;
7. No endeavour was made to suggest that "Guy' had any knowledge of the specific locations of the sites plotted by Van der Merwe;

8. Steyn himself complained that the locations plotted by Van der Merwe were impossible to determine.

THE APPLICATION TO STRIKE CONSIDERED

[71] Although Steyn's evidence as to the extent, location and boundaries of the parties' respective licences - coming as it did after a pointing out by Guy - was hearsay , Steyn's evidence cannot be hearsay as to the following:
a)	That the exercise required to plot the extent and boundaries of the areas covered by the respective licences required the skill of a land surveyor; and
b)	That Steyn is a qualified land surveyor and accordingly qualified to critique the work done by van der Merwe which forms the basis for the claim that the respondent acted unlawfully in relation to the applicant's EPL.

"In dealing with Van der Merwe's affidavit, Steyn indicates: co-ordinate datum or reference ellipsoid is not given; reference is made (E5.11) to mark pegs/beacons but not explained; there is no mention of the nature of the points or location surveyed. If there was any physical point or feature surveyed that could be used as a reference point, it would have been quite easy to determine a relationship between what was surveyed then and later by us thus relating the two surveys to each other, as discussed in 2 above; the map attached to Van der Merwe's affidavit marked
Annexure "CVM1" furthermore shows only a scale bar and it is a plot super-imposed on a 1:50000 map sheet with an approximate scale of 1:43000; the co-ordinates as shown are UTM Zone 33 co-ordinates, with no indication as to a reference ellipsoid. ... The difference in the location or position of the plotted points could probably be 100 metres - 200 metres using the different ellipsoids; using a UTM map projection introduces a scale on the central meridian of 0.9996 which translates to a 0.4 metre scale correction per kilometre. Scaling off of this map can also possibly be in the accuracy of 50 m - 100 m considering that a 0.001 metre error made when measuring off a 1:50000 map represents 50 metre on the ground."

[73] This critique by a qualified land surveyor shows how unreliable it is to place reliance on Van der Merwe's opinion - based on the work he did using the handheld GPS navigational system for which he had laid no proper basis or disclosed the methodology used and the reasoning underlying his conclusions.

[74] I agree with the respondent's position that, as a geologist, Van der Merwe could not determine - and was not qualified to assist the Court in coming to a conclusion as to the exact boundaries and extent of the land areas covered by the respective licences of the parties; and that the respondent had unlawfully carried out mining operations on the land area covered by EPL 3789 of the applicant and that such activity fell outside the ML 35B belonging to the respondent. These are issues that called for expert opinion evidence by a land surveyor and the opinion on it by a geologist does not offer the court "appreciable help".

[76] The applicant had therefore failed to make out the case that the respondent injured it in its rights over EPL 3789 in the manner suggested by van der Merwe. There was no acceptable such evidence to found a cause of action against the respondent. The application stands to be dismissed on that basis and it becomes unnecessary for me to deal with the other objections and issues raised by either party.

COSTS

[77] The respondent asks that I impose a special costs order against the applicant on the scale as between attorney and own client, because- it says- the applicant abused the process of the Court in launching these proceedings. One reason given is that the applicant came to this court on urgent basis when that was not justified. If that were the case I am unable to understand why the respondent did not have that issue argued when the urgent application was set down, but instead agreed to cease the mining activity complained of until the case was heard.

[79] The other reason given for ordering punitive costs is that the applicant's Shimwino, when challenged, failed to produce the resolution authorising him to act. I have rejected that argument. The facts show that in pursuing it the respondent was acting frivolously.

[80] There is on the papers no demonstrable reprehensible conduct on the part of the applicant to induce me to make a punitive costs order against it.

[81] Accordingly, I make an order in the following terms:

The application is dismissed with costs, such costs to include the costs of one instructing and one instructed counsel.

DAMASEB, JP

ON BEHALF OF THE APPLICANT:					Mr T A Barnard

Instructed By:							Koep & Partners

ON BEHALF OF THE RESPONDENT:				Mr A Bava

Instructed By:							H D Bossau & Co