A timeline to a collision
Mbongeni Mguni | Friday September 12, 2014 15:06
9 September 2006: Whilst attending the Africa DownUnder conference in Perth, Australia, the Minister of Minerals, Energy and Water Resources (MMEWR), Charles Tibone, attends a supper hosted by Mount Burgess Mining (MTB). Tibone advises MTB that through the intended upgrade of power, sufficient grid power for the Kihabe project should be available at Nokaneng by 2011.
24 July 2008: Edward Rugoyi, Director of the Botswana Power Corporation gives a presentation to the Botswana Resources Conference and a map on the second last page of his presentation shows that Discovery Metals would have grid power for its copper project southwest of Maun by 2011. After this presentation, Nigel Forrester, CEO MTB, asks Rugoyi how long it would then take for power to be provided for the Kihabe project and Rugoyi advises that it would take around another year to get power from Sehitwa to Nokaneng and then out to the Kihabe area, therefore work on power being available by the end of 2012.
11 June 2009: At the Botswana Resources Conference three representatives of the BPC (no business cards and no record of names) come to Mount Burgess Botswana (MBB)’s booth and advise that power will be available for the Kihabe project.
January 25, 26, 2010: Minister Ponatshego Kedikilwe visits the Kihabe project site, together with Jacob Thamage, Dept of Mines and Johannes Tsimako, Dept of Geological Survey. Kedikilwe asks Forrester what would be needed to develop the Kihabe project into a mining operation and he is advised that it would need grid power and an upgrade of the access road.
5 March 2010: Forrester advises Kedikilwe that in order to achieve maximum beneficiation and produce zinc metal on site through solvent extraction and electro winning, the project will require between 40 to 45 MW of grid power.
8 March 2010: MMEWR responds to Forrester’s letter of 5 March advising of power requirements, stating: “This is certainly useful to enable us to engage with other stakeholders”.
18 March 2010: As a consequence of the response from MMEWR of 8 March 2010, MBB submits its Application for Extension of PL69/2003 (Kihabe lease), for a further two years to 30 June 2012, advising that during this term it intends to conduct a project feasibility study. During 2011 It became apparent that the provision of grid power to the Kihabe area was not going to materialise by the end of 2012. Accordingly, in compliance with the Australian JORC code (the one code that all other international codes are modelled on in respect of feasibility studies and the delineation of reserves) MBB could not complete or get a competent person to sign off on a feasibility study. The JORC code stipulates that a feasibility study can only be completed and signed off by a competent person when dealing with DELINEATED RESERVES. The JORC code further stipulates that resources can only be upgraded to DELINEATED RESERVES when capable of being mined and beneficiated as required on a commercial basis. Without a commercial power supply, mining and beneficiation cannot be conducted on a commercial basis. Therefore, resources cannot be upgraded to DELINEATED RESERVES with the result that a feasibility study cannot be compiled and signed off by a competent person.
23 March 2012: MBB gives a power point presentation to the Minister MMWR, Ponatshego Kedikilwe, outlining proposed amendments to the programme of prospecting operations as a result of the unavailability of grid power previously assured would be available. At the conclusion of this presentation, Kedikilwe suggests that MBB should join the power forum, such that it could be kept abreast of the power situation and also advise of what ultimate power requirements it would need for the Kihabe project. Minister Kedikilwe MMEWR does not reject the proposed amendments to the prospecting programme within two months of 23 March 2012 and accordingly, such amendments had effect after such period.
29 March 2012: In accordance with the Mines and Minerals Act, no later than three months before its expiry, MBB submits its Application for Extension of PL69/2003 for a further two years to 30 June 2014. In accordance with standard practice adopted by MMEWR, this three-month period prior to the expiry of the prospecting licence allows MMEWR time to review work conducted on the Prospecting Licence to date and work proposed to be conducted. Any rejection of an Application for Extension, decided upon as a result of such review can therefore be notified to the applicant within this three-month period. No rejection of this Application for Extension or any queries relative thereto are received by MBB from MMEWR within the three month period to 30 June 2012. Accordingly MBB continues in good faith working on and incurring expenditure on a daily basis on PL69/2003. Through filing of quarterly reports and Australian Securities Exchange announcements with the Geological Survey, MMEWR is continually aware of the work being conducted by MBB during this period. By the time Minister Kitso Mokaila rejects this Application for Extension on 13 May 2013, some 14 months later, MBB has spent AUS$1.2 million (P10.2 million) during this period.
13 May 2013: Minister Mokaila MMEWR rejects MBB’s Application for Extension of PL69/2003, submitted 14 months earlier on 29 March 2912. PL69/2003 contains resources developed by the company and its wholly owned subsidiary MBB, at a cost of $14.5 million (P123.3 million).
6 June 2013: MBB appeals to the Vice President of Botswana, Kedikilwe, seeking a reversal of the decision not to extend PL69/2003.
11 July 2013: Mokaila MMEWR rejects MBB’s appeal to the Vice President citing two reasons which do not accord with the facts and are therefore incorrect. He maintains that MBB should have:
*Obtained the Minister’s approval to amend the prospecting programme as a result of the lack of power, (which it did) and
*Irrespective of its requirement to comply with the JORC code, MBB should have complied with the Mines and Minerals Act, (which it did)
26 July 2013: MBB’s Legal counsel confirms that the decision handed down by Mokaila rejecting MBB’s appeal to the Vice President was opined to be “ultra vires”
8 October 2013: MBB’s Notice of Motion and Founding Affidavit to set aside Minister Mokaila’s decision, is registered in the High Court of Botswana. Copies are served on the Minister and in accordance with sections of the State Procedures Act and the Constitution, copies are also served on the Attorney General as respondent.
21 October 2013: The Attorney General as Respondent serves on MBB a Notice of Intention to Oppose MBB’s Notice of Motion and Founding Affidavit. Despite such notice the Attorney General NEVER files an opposing affidavit as required in accordance with precedent established in the Court of Appeal, Botswana. She only raises points of law in limine.
13 February 2014: At the hearing in the High Court of Botswana, the Attorney General raises points of law in limine, arguing that MBB’s Notice of Motion and Founding Affidavit should have been filed against the Minister
MMEWR as respondent and not the Attorney General. MBB argues that whilst copies were served on the Minister MMEWR, its Notice of Motion and Founding Affidavit correctly nominated the Attorney General as respondent in accordance with the State Procedures Act and the Constitution. All these sections confirm that a minister is part of the Government and any actions against the government shall be instituted against the Attorney General.
28 April 2014: The High Court rules that MBB’s Application for Renewal of PL69/2003 be struck out with costs, as the Minister was not joined in the proceedings, only the Attorney General was cited as the respondent. Such ruling is handed down despite the Judge even stating: “No cause shall be defeated by reason of the misjoinder or non-joinder of parties and the Judge may in every cause deal with the matter in controversy so far as regards the rights and interests before him”.
26 May 2014: Mount Burgess Mining advises the Australian Securities Exchange that its wholly owned subsidiary MBB has lodged a Notice of Appeal in the Appeal Court of Botswana, seeking a reversal of the ruling handed down by the High Court on 28 April 2014.
28 July 2014: MBB announces that it is reviewing the potential of pursuing investor-state arbitration proceedings against Botswana under the SADC Protocol on Finance and Investment, if required. Botswana is a member of the SADC and is a signatory to the Protocol.