Court dismisses Mashuna's appeal in Kunene mining row
The Windhoek High Court has dismissed an appeal by businessman Timoteus Mashuna in a long-running legal battle over proposed tin mining in the Kunene region, ruling that the appeal was procedurally invalid.
In a ruling delivered on Monday, 15 December, judge Reinhard Tötemeyer upheld an interlocutory application brought by the Doro !Nawas Conservancy, the Uibasen Twyfelfontein Conservancy, the #Aodaman Traditional Authority and a Namibian conservation travel company, Ultimate Safaris.
The court found that the applicants’ application under Rule 61 had succeeded and ordered that Mashuna’s notice of appeal dated 10 October, as well as a further notice filed on 17 November, be set aside.
Mashuna was also ordered to pay the applicants’ legal costs, including the costs of one instructing and one instructed counsel. The court directed that these costs would not be capped under Rule 32(11).
The long-running legal dispute centres on Mashuna’s proposed tin mining activities in the area, which have brought him into conflict with conservancies, a traditional authority and a tour operator, who have cited risks to the environment, particularly to endangered black rhino.
Mashuna has argued that mining and environmental protection can coexist. However, Ultimate Safaris and its co-applicants have relied on research indicating that the proposed mining would displace black rhino, harm the environment and, in turn, undermine tourism activities dependent on them.
Several state authorities were cited as respondents in the latest application, including the environmental commissioner, the environment and tourism minister, the mining commissioner and the mines minister.
Other respondents included Ottilie Ndimulunde, Sorris Sorris Conservancy, the Daure Daman Traditional Authority and Goantagab Mining (Pty) Ltd.
At the centre of the matter is an interim interdict previously granted by the High Court, restraining Mashuna from conducting mining and related activities on certain communal land pending the outcome of a main review application.
Leave to appeal
In October, the court confirmed that the interim interdict remained in force.
Mashuna subsequently filed a notice of appeal against that confirmation order, followed by a further notice purporting to add grounds of appeal.
The applicants challenged the appeal's validity, arguing that the order in question was interlocutory and therefore not appealable as of right, and that Mashuna had failed to obtain the required leave to appeal.
In its ruling this week, the court agreed, finding that the order confirming the interim interdict was not final in effect and did not determine the parties' substantive rights.
As such, it did not meet the legal requirements for appealability.
The court further held that, even if the order were capable of being appealed, leave to appeal was required under the High Court Act and had not been sought.
Judge Tötemeyer rejected arguments that the High Court had lost jurisdiction once the appeal was noted, finding that the notices of appeal were defective and had no legal effect.
As a result, the court was entitled to entertain the Rule 61 application and set the notices aside.
The interlocutory application was removed from the roll and marked as finalised.
The ruling effectively brings to an end Mashuna’s attempt to pursue the appeal at this stage.
It reinforces the applicants’ position in the ongoing dispute over land use, environmental approvals and mining rights within the affected conservancy areas.
The judgment could have broader implications for disputes involving communal conservancies, traditional authorities and mining developments, particularly in relation to appeals that delay or suspend interim court orders when procedural requirements under the High Court rules are not met.
In a ruling delivered on Monday, 15 December, judge Reinhard Tötemeyer upheld an interlocutory application brought by the Doro !Nawas Conservancy, the Uibasen Twyfelfontein Conservancy, the #Aodaman Traditional Authority and a Namibian conservation travel company, Ultimate Safaris.
The court found that the applicants’ application under Rule 61 had succeeded and ordered that Mashuna’s notice of appeal dated 10 October, as well as a further notice filed on 17 November, be set aside.
Mashuna was also ordered to pay the applicants’ legal costs, including the costs of one instructing and one instructed counsel. The court directed that these costs would not be capped under Rule 32(11).
The long-running legal dispute centres on Mashuna’s proposed tin mining activities in the area, which have brought him into conflict with conservancies, a traditional authority and a tour operator, who have cited risks to the environment, particularly to endangered black rhino.
Mashuna has argued that mining and environmental protection can coexist. However, Ultimate Safaris and its co-applicants have relied on research indicating that the proposed mining would displace black rhino, harm the environment and, in turn, undermine tourism activities dependent on them.
Several state authorities were cited as respondents in the latest application, including the environmental commissioner, the environment and tourism minister, the mining commissioner and the mines minister.
Other respondents included Ottilie Ndimulunde, Sorris Sorris Conservancy, the Daure Daman Traditional Authority and Goantagab Mining (Pty) Ltd.
At the centre of the matter is an interim interdict previously granted by the High Court, restraining Mashuna from conducting mining and related activities on certain communal land pending the outcome of a main review application.
Leave to appeal
In October, the court confirmed that the interim interdict remained in force.
Mashuna subsequently filed a notice of appeal against that confirmation order, followed by a further notice purporting to add grounds of appeal.
The applicants challenged the appeal's validity, arguing that the order in question was interlocutory and therefore not appealable as of right, and that Mashuna had failed to obtain the required leave to appeal.
In its ruling this week, the court agreed, finding that the order confirming the interim interdict was not final in effect and did not determine the parties' substantive rights.
As such, it did not meet the legal requirements for appealability.
The court further held that, even if the order were capable of being appealed, leave to appeal was required under the High Court Act and had not been sought.
Judge Tötemeyer rejected arguments that the High Court had lost jurisdiction once the appeal was noted, finding that the notices of appeal were defective and had no legal effect.
As a result, the court was entitled to entertain the Rule 61 application and set the notices aside.
The interlocutory application was removed from the roll and marked as finalised.
The ruling effectively brings to an end Mashuna’s attempt to pursue the appeal at this stage.
It reinforces the applicants’ position in the ongoing dispute over land use, environmental approvals and mining rights within the affected conservancy areas.
The judgment could have broader implications for disputes involving communal conservancies, traditional authorities and mining developments, particularly in relation to appeals that delay or suspend interim court orders when procedural requirements under the High Court rules are not met.
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