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Perhaps I was a little hasty in my assessment of August’s legal acumen. Then again perhaps not.
Let’s unpack his new found hobby at attempting to use citations and reasoning shall we
1. Correct
2. Correct. Based on provisions in its Mining Code being the key words.
3. This needs to be broken down part by part because it’s an awful word salad with spurious non causal linkage throughout
According to the Ministry of Mines, AVZ violated the Mining Code on account of development delays- specifically, Art 71 and 197.
Incorrect. The reasoning given by the then Minister of Mines in her 28 January 2023 cancellation decrees is as follows:
‘Considering the appeal of the Congolese mining company (COMINIERE), shareholder in DATHCOM MINING SA, formed by its letter referenced CEM/DG/138/ekk/2022 of December 07, 2022:
Considering that the partial waiver of Exploration Permit No. 13359 by the company DATHCOM MINING SA was made in defiance of the opinion of the minority shareholders of this company and cause continuing tensions between them;
Considering that the harmony and healthy cooperation between the shareholders of DATHCOM MINING SA constitute prerequisites for any mining operation by this company, with a view to save the Manono Lithium Project;
Considering that the situation of misunderstandings, persistent conflicts, recurring disagreements between shareholders and taking the project hostage, exacerbated by the signing of Ministerial Order No. 00145/CAB.MIN/MINES/01/2022 of April 25, 2022, is nature to paralyse the exploitation of Lithium and to prevent the State from channeling the products resulting from the exploitation Licence 13359.’
But as Nigel correctly stated in his appeal letter which led to the ICSID arbitration (Under Articles 290 & 317-320 of the DRC Mining Code):
‘Your two ministerial decrees show that all these facts constitute "acts of the prince" because they are without any legal basis and are not based on the Mining Code as amended in 2018:
The fact that you responded to the request of the company COMINIERE SA which is not a holder of mining titles and therefore you create a dangerous case law to receive the request of a shareholder whose acts are not permitted by the Mining Code but also whose quality of Mr. Célestin KIBEYA is called into question because he was not appointed by "Presidential Ordinance" as required. Despite this irregularity, you had nevertheless taken these decisions which cannot survive in legal commerce nor produce its effects.
The fact that you based your two decrees on issues of "conflicts between shareholders" which are not conflicts within your jurisdiction and therefore reasons unknown to the Congolese Mining Code as known to date.
The Democratic Republic of Congo through its constitution dated February 18, 2006 as amended by Law n011/002 of January 20, 2011 is a state of law and therefore, Your Excellency, is subject to its own laws.
One of the provisions that you had ignored in the two decrees is that the person who seized you, in this case Mr. Célestin KIBEYA, had to have a quality based on the Presidential Ordinance appointing him out of respect for the principle of parallelism of form in replacement of Mr.
Athanase Mwamba who has remained Acting General Manager to this day. In the eyes of the law. This reason makes your two arrested in the form irregular
The reasons raised in particular the conflicts between shareholders are purely and simply unknown by the Mining Code, being a special law which derogates from the common rights and which requires a strict application of which the only reasons for forfeiture are in particular the "non-payment of surface rights" and "the non-start of the works which is not the case here and allows us to affirm that the decision to grant remains intact in the legal trade.
To return to the State, it is appropriate to recall that your above-mentioned Orders violate the Mining Code which has taken care to frame the report of mining rights". To this end, article 48 provides that "The mining and/or quarry rights may be withdrawn or brought back, without retroactive effect, by the granting authority in the event of illegality during the granting, in three months following the publication of the award decision in the Official Journal or, failing that, within three months following the date of becoming aware of its existence, either at the request of an injured third party, or at the granting authority.
It follows from this provision that the only hypothesis of report of mining or quarry rights enshrined in the law is "Illegality at the time of the granting", in this case, the rights can be reported either at the request of an injured third party or on your initiative and this, within three months following the publication of the award decision in the Official Journal or following the date of becoming aware of the existence the award decision.
You will find that your decision to grant was taken in April 25, 2022 and three months later would be July 25, 2022 and in the event of illegality during the grant". The decisory acts that are cadastral notices, "environmental notices", Technical notices" and "compliance notices remain valid to this day and have never been declared illegal and no reason or illegality in the granting procedure emerges. of your two decrees and DATHCOM was never notified of any case of illegality during the granting. And you cannot ignore that the withdrawal of regular individual administrative acts is impossible under the principle of acquired rights (read in this sense the Administrative Law Treaty of Felix VUNDUAWE te PEMAKO, Belgium, Larcier, 2007, P.696).
This is completely abnormal, and legally untenable, that your jurisdiction can leave unexecuted an act that it has enacted and whose legality is beyond the shadow of any doubt because it was rejected on three favorable opinions, and that you can embark on a painful and perilous process to try to assess, o posteriori, the legality of your decision, especially since respecting legality is a concern that must be manifested at the time of the enactment of the act, or even, better, during its elaboration, never after its enactment;
Moreover, the simple basic rules were not respected, in particular the rights of the defense and your Excellency did not even deign to call the applicant to hear his version of the facts and the Mining Code established the principle that decisions must be motivated and to date nor the reasons relating purely to company law raised by Mr. Célestin KIBEYA (whose personal motivations remain obscure) can support the illegal nature of the decision to grant
This is a remedy for justice to be done, it is up to you to choose the path of reason within the framework of a good business climate and to leave to the appropriate authorities, which are within the reach of COMINIERE, the care of being able to implement their legal skills in order to settle this conflict between Dathcom shareholders rather than paralyzing this great historical project which nourishes the hope of the Congolese people and especially since DATHCOM is in possession of all the technical and financial means to develop this project.’
Articles 71 and 197 of the DRC Mining Code weren’t mentioned at all in the official cancellation documentation. Regardless here are those sections of the DRC Mining Code for everyone’s reference:
Article 71: Conditions for Granting the Exploitation Permit
The granting of the Exploitation Permit is subject to the following conditions on the part of the applicant:
a) Demonstrate the existence of an economically exploitable deposit by submitting a feasibility study, accompanied by a technical supervision plan for development, construction, and operation of the mine;
b) Demonstrate the existence of the financial resources necessary to successfully carry out the project, in accordance with a financing plan for development, construction, and operation works, as well as a site rehabilitation plan upon closure. This plan must specify each type of financing, the intended sources of funding, and justification of their probable availability;
c) Obtain prior approval of the Environmental Impact Assessment (EIA) and the Environmental and Social Management Plan (ESMP) for the project;
d) Transfer to the State 5% of the shares of the applicant company’s share capital. These shares shall be free of any encumbrances and non-dilutable.
Article 197: Obligation to Commence Work
* The holder of an Exploration Permit is required to commence exploration work within six months from the date of issuance of the title evidencing their right.
* The holder of an Exploitation Permit is required to commence development and construction work within three years from the date of issuance of the title evidencing their right.
* The holder of a Small-Scale Mining Exploitation Permit or a Tailings Exploitation Permit is required to commence development and construction work within one year from the date of issuance of the title evidencing their right.
* The holder of a Permanent Quarry Exploitation Authorisation must commence work within six months from the date of issuance of the title evidencing their right.
* The Mining Regulations shall determine the procedures for implementing this provision.
It would have been nice for August to include the sub reasoning purportedly used by the Ministry of Mines but none of these were violated by Dathcom / AVZ regardless
If anything from Article 71 were to apply then the MoM would have admitted that she made a mistake when granting the Mining Licence in her April 25 2022 decrees as it relates to the granting of Dathcom’s Exploitation Permit or that there was illegality which Nigel correctly points out wasn’t the case or her reasoning
Article 197 sub section 2 (it’s not labelled so I’ll call it 2 since it’s the second one listed) is the only one that could potentially apply in this situation. But it clearly states that ‘The holder of an Exploitation Permit is required to commence development and construction work within three years from the date of issuance of the title evidencing their right’. The Minister of Mines purportedly cancelled Dathcom’s Mining Licence less than a year (9 months and 3 days to be exact) after she granted it.
Last time I checked 9 months and 3 days is far less than 3 years and we couldn't commence development and construction until we received the surface rights fees from CAMI anyway
And again the actual reasoning given by the Minister of Mines in her cancellation decrees had absolutely nothing to do with either of these Articles of the DRC Mining Code
So not really sure what he’s going on about
And DRC's courts ruled in two separate cases AVZ forged its share certificate
Partially correct. Pending appeal to the DRC Supreme Court once merits are dealt with.
And that shares were illegally transferred
Incorrect. Both courts recognised the need for this matter to be heard by an arbitral judge. Hence the allowing for further appeal to the DRC Supreme Court which had the effect of pending the decision. Neither of these courts made any judgement on the merits and they were strictly a criminal matter dealing with the creation of the share certificates.
The purported illegality of the transfer is to be dealt with at the correct forum for dispute resolution The ICC
And how are those arbitrations going?
For the 10% the correct forum for dispute resolution The ICC decided in July 2025 that AVZ completed the 2020 SPA correctly
For the 5% the correct forum for dispute resolution The ICC will soon decide that AVZ completed the 2019 SPA correctly
Because Article 2.1 of the SPA’s is very clear. Completion occurred when payment was received by Dathomir. Therefore AVZ have owned the total 15% since that event in August 2021.
A nice attempt by August to try and slip that one through but pity for him I actually read and understand these decisions
Leading to its state-owned JV partner, Cominiere, to take full ownership in the old permit, which was later split in two.
Incorrect. Cominiere’s purported termination of the Dathcom JVA was done outside of the correct forum for dispute resolution The ICC and therefore has no effect. As the ICC prima facie recognised:
‘The Defendant never explained on what legal basis the Kalemie High Court had based its jurisdiction, but only asserted that it "had jurisdiction to establish this termination and draw the consequences thereof" and "must be accepted by this Court and by the Parties”
As they had not been summoned, the Claimants were unable to invoke the lack of jurisdiction of the Kalemie High Court due to the arbitration clause contained in article 11 of the Amended JV Contract which, according to them, would have led the Kalemie High Court to declare itself lacking jurisdiction
The Arbitral Tribunal is astonished by the fact that the High Court of Kalemie found that a contract had been terminated without the other parties to the contract being heard or summoned to express their position.’
For someone that purports to have been a prosecutor and alleges, without evidence, that his President (deal with it) wants to be a dictator, I would have thought that the right to defence would be something important to be considered
Perhaps those tin rattlers at KoBold flew to Perth to beg AVZ to sell them their 75% holding in Dathcom for pennies just for the fun of it lmao
All of these actions were in accordance with DRC law.
Incorrect. You stupid fucking shill.
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