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Friday 6 December 2019
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Judge Angula recuses himself from phosphate case

…as new details emerge
 
Judge Hosea Angula, who was supposed to preside over the phosphate case next week has recused himself because of past ties with the legal team of Namibia Marine Phosphate(NMP).
NMP is being represented by ENSafrica, the continent’s largest law firm which merged with local law firm Lorentz Angula where Judge Angula was a director in 2014.
 
After ENSafrica and Lorentz Angula merged, Hartmut Ruppel took up the position of executive chair of the rebranded ENSafrica Namibia, supported by vice-chair Hosea Angula.
 
Angula confirmed his recusal yesterday, saying “I did so as soon as I found out they [ENSafrica] were representing NMP”.
“I cannot preside over the matter because I just came from there [ENSafrica]. The court will now have to find a new judge who is not conflicted to preside over the matter,” Angula told this publication.
Namibia Marine Phosphate’s lawyers will start arguing on Tuesday in the High Court why the application for an order stopping the implementation of the decision to grant an environmental clearance certificate to NMP, and stopping NMP from carrying out any activities allowed by the certificate should be set aside.
 
The Confederation of Namibian Fishing Associations, the Namibian Hake Association, the Midwater Trawling Association of Namibia and Omualu Fishing requested the High Court, in an urgent application, to set aside Environmental Commissioner Teofilus Nghitila’s decision to issue an environmental clearance certificate for marine phosphate mining on 5 September this year. They are being represented by lawyer Sisa Namandje.
 
In recent weeks, there has been stiff opposition to the Ministry of Environment and Tourism’s decision to grant a clearance certificate that allows NMP to start mining marine phosphate off the Namibian coast.
 
In their affidavit, the applicants said they are approaching the court with urgency because of the significant destructive effect to the marine environmental ecosystem and natural resources that will be caused should NMP proceed with any activities in terms of the marine phosphate mining licence and environmental clearance certificate they currently hold.
 
The applicants intend to sue the environmental commissioner, the ministers of Environment and Tourism, Fisheries and Marine Resources, and Mines and Energy, the attorney general, and Namibia Marine Phosphate.
 
They also argue that the environmental commissioner and NMP operated on the wrong assumption that the company’s mining licence was still valid, claiming it had expired when NMP applied for an environmental clearance certificate. The environment ministry has been pitted against the fisheries ministry since the issuing of the certificate.
 
The communication
Nghitila, who faced public onslaught for awarding the certificate, was adamant that he followed the correct procedures when he issued the licence, also downplaying claims that the fisheries ministry was not consulted when he issued the licence. It is not known whether he changed his stance after the ministry decided to revoke the licence.
 
NMP, on the other hand, contends that it too followed all procedures.
 
The Patriot has seen some correspondences between the fisheries ministry and NMP dated 2013, in which NMP wanted to use the ministry’s FRV Welwitschia vessel to conduct its verification study. That request was declined by then permanent secretary Uitala Hiveluah on 30 September 2013.
 
The ministry then referred NMP to Hampidjan, one of the largest Fishing Gear and Super Ropes Manufacturer of the world, to hire gear used by the ministry, which meets all specifications.
“With reference to your letter dated 01/11/2013 on the abovementioned subject ‘Biomass Surveys in ML170-Survey vessel FRV Welwitschia or alternate contract vessel’, kindly be informed that the ministry has no objections to NMP hiring a private vessel provided that the gear specifications conform to the research gear used for monk surveys,” said Hiveluah in another letter dated 5 November 2013.
 
The rift
Marine phosphate mining has caused a rift in Cabinet, with fisheries minister Bernhard Esau recently accusing the Ministry of Environment and Tourism of unanimously issuing a clearance certificate to one of the companies that wants to mine phosphate in Namibia’s ocean territory.
 
Esau said the certificate was issued despite the fact that the process, as established by Cabinet – including conducting a Strategic Environmental Assessment (SEA), has not been allowed to run its course.
 
“There are no credible scientific results backed by sound methodologies to justify issuance of an environmental clearance certificate, there are no pre-established controls on how this mining is to be carried out to minimise aquatic ecosystem damage,” he said.
 
Esau is worried by the fact that the clearance certificate indicates that NMP will establish its own controls, “an approach which is unacceptable from an official control point of view”.



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