REPUBLIC OF NAMIBIA REPORTABLE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK JUDGMENT Case No: HC-MD-CIV-MOT-REV-2016/00335 In the matter between: CONFEDERATION OF NAMIBIAN FISHING ASSOCIATIONS 1ST APPLICANT NAMIBIAN HAKE ASSOCIATION 2ND APPLICANT MIDWATER TRAWLING ASSOCIATION 3RD APPLICANT OMUALU FISHING (PTY) LTD 4TH APPLICANT and ENVIRONMENTAL COMMISSIONER TEOFILUS NGHITILA 1ST RESPONDENT MINISTER OF ENVIRONMENT ANDTOURISM SHIFETA 2ND RESPONDENT MINISTER OF FISHERIES AND MARINE RESOURCES ESAU 3RD RESPONDENT MINISTER OF MINES AND ENERGY KANJOZE 4TH RESPONDENT ATTORNEY-GENERAL OF THE REPUBLIC OF NAMIBIA SHANGALA 5TH RESPONDENT NAMIBIA MARINE PHOSPHATE (PTY) LTD 6TH RESPONDENT 2 Neutral citation: Confederation of Namibian Fishing Associations v Environmental Commissioner Teofilus Nghitila (HC-MD-CIV-MOT-REV-2016/00335) [2021] NAHCMD 308 (30 June 2021) Coram: GEIER, J Heard: 07 July 2020 Delivered: 30 June 2021 Flynote: Environmental law — Application to have a marine phosphate mining licence declared as having lapsed — Locus standi of applicants – All members of the fishing industry — Applicants feeling aggrieved that their fishing rights and interests in the fishing industry are threatened by the mining licence - the case they brought entails environmental issues – As the Namibian Constitution envisages ‘a generous regime of access to courts’ and. ‘ … mandates a broad approach to standing for the purpose of the enforcement of … rights …’ and where‘ … The rules of standing should not ordinarily operate to prevent citizens from obtaining legal clarity as to their legal entitlements – Court finding that the applicable constitutional provisions, as interpreted by the Supreme Court, envisage a generous regime of access to courts which have expanded the common law principles in this regard - Court finding that the applicants’ interests are/will be sufficiently directly and prejudicially affected by the granting of ML 170, the ECC that was obtained in this regard and the consequential contemplated marine mining activities that were to follow which afford them the necessary locus standi and thus the ‘title to prosecute their claims’ in this instance and where the relief sought does not only entail immediate declaratory relief sought with its consequences, but which relief, as a consequence, was also of wider impact, as far as the relevant environmental considerations and impacts are concerned, and, where the applicants where also seeking to protect ‘the environmental fabric’ of the traditional fishing grounds in which they operatePractice — Parties — Locus standi — First, second and third applicants voluntary associations - An association can sue or be sued as a universitas in terms of the 3 common law if it has the capacity to acquire rights, has the power to own property and has perpetual existence. In order to establish whether or not an association has the power to sue regard is to be had to its constitution in terms of which such power may be expressly conferred or from which such power may be implied. In this regard consideration is to be given to the activities, aims and objectives of an association. Even if an Association’s Constitution contains no indication of the right to sue, a Court may, therefore, having regard to its activities, aims and objectives infer the power to sue as inherent in the express powers given to the office bearers. A written Constitution is therefore desirable but not essential to establish whether an Association complies with the requirements – the court thus in applying these principles found that the first, second and third applicants were legal entities that could sue and be sued – and that they could thus have instituted these proceedings in their own right Practice — Parties — Authority to institute proceedings — Power of attorney authorising Chairperson of the first applicant to institute application and to depose to papers in support — challenge held to be weak – instead of adducing any evidence itself, on the basis of which it mounted the respective challenges, NMP proceeded to create ‘artificial’ challenges, simply with reference to the prescribed constitutional provisions pertaining to the relevant decision-making-processes of the respective first three applicants, and by simply questioning whether or not such provisions had indeed been followed and then proceeding, by simply denying the authority of those applicants, on the basis of its own

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