Bid to block Mashuna’s appeal in conservancy mining case dismissed
• No reasons accompanied the ruling
Wonder GuchuWindhoek
The Supreme Court has declined a bid by Doro !Nawas Conservancy, |Uibasen Twyfelfontein Conservancy, #Aodaman Traditional Authority and Ultimate Safaris to summarily dismiss an appeal lodged by Timoteus Mashuna in the ongoing Twyfelfontein mining legal dispute.
In an order issued in chambers on 9 December, acting judge of appeal Theo Frank ruled that the Rule 6 application was declined with costs.
Rule 6 is a special mechanism that permits the Supreme Court to summarily dismiss an appeal if it is considered frivolous, vexatious or without prospects of success.
It also allows the chief justice or a designated judge to determine such an application in chambers and without oral argument.
No reasons accompanied the ruling.
The refusal means Mashuna’s appeal against a High Court order restoring an interdict over disputed mining claims remains intact and will now proceed in the normal appeal process.
The applicants had approached the Supreme Court on 7 November seeking the dismissal of Mashuna’s appeal under Rule 6 of the Supreme Court rules.
They argued that the appellant’s notice of appeal, filed on 10 October shortly after acting judge Reinhard Totemeyer confirmed an earlier interdict, was irregularly and prematurely noted.
They argued that the appeal existed solely to suspend the interdict protecting a sensitive conservation area inhabited by black rhino and that it should therefore be summarily struck from the roll with punitive costs.
Immediate intervention
The applicants said these conditions were met because the October judgment was, in their view, an interim order not appealable without leave.
They said Mashuna had not sought such leave and had instead filed a notice of appeal designed to trigger the automatic suspension of the interdict.
In their founding affidavit, they described the environmental harm they believed would occur if mining continued and argued that the appeal, if allowed to proceed in the ordinary course, would undermine ongoing review proceedings set down for hearing in 2026.
They also pointed to what they said was Mashuna’s earlier non-compliance with judge Kobus Miller’s 2024 order, claiming this justified immediate intervention under Rule 6.
Flawed application
Mashuna, in a lengthy answering affidavit, rejected these allegations and attacked the Rule 6 application as fundamentally misconceived.
He described the filing as incompetent, premature and contradictory.
He argued that the applicants could not ask the Supreme Court to dismiss an appeal as frivolous or without prospects of success while simultaneously insisting that no valid appeal existed because leave was allegedly required.
According to him, this inconsistency undermined the very foundation of a Rule 6 application, which presupposes a valid appeal.
Mashuna also argued that acting judge Totemeyer did not grant interim or alternative relief but the main relief sought by the applicants through an amended notice of motion.
He said the judgment involved the final interpretation of the earlier 24 August 2024 order and therefore constituted a final civil determination from which he could appeal as of right under Section 18 of the High Court Act and Article 80 of the Constitution.
Mashuna cited previous Supreme Court decisions involving statutory interpretation as examples of decisions appealable as of right without leave.
Appeal remains alive
He further contended that the applicants had adopted two incompatible legal strategies by pursuing a Rule 6 application in the Supreme Court while also seeking to set aside the notice of appeal as an irregular step under Rule 61 in the High Court.
In his view, a party cannot argue in one court that an appeal is invalid and in another that it should be summarily dismissed.
He said the pending High Court Rule 61 proceedings alone should have compelled the Supreme Court to dismiss the Rule 6 bid.
Mashuna denied that he continued mining unlawfully and argued that the applicants had mischaracterised the nature of the dispute.
He insisted that his appeal was correctly noted as of right and that the High Court orders were appealable.
Mashuna urged the Supreme Court to dismiss the Rule 6 application with costs.
With the Supreme Court declining to hear the application, Mashuna’s appeal remains alive.
The interdict, which halted mining activities pending review of the environmental clearance certificate and the mining claims, continues to stand but is now the subject of a full appeal before the Supreme Court.
Meanwhile, the High Court’s Rule 61 challenge and the substantive review proceedings remain pending and are expected to proceed in 2026.
The Supreme Court’s order was served on Ellis Shilengudwa Inc. for the applicants and Appolos Shimakeleni Lawyers for the respondent.
The Supreme Court has declined a bid by Doro !Nawas Conservancy, |Uibasen Twyfelfontein Conservancy, #Aodaman Traditional Authority and Ultimate Safaris to summarily dismiss an appeal lodged by Timoteus Mashuna in the ongoing Twyfelfontein mining legal dispute.
In an order issued in chambers on 9 December, acting judge of appeal Theo Frank ruled that the Rule 6 application was declined with costs.
Rule 6 is a special mechanism that permits the Supreme Court to summarily dismiss an appeal if it is considered frivolous, vexatious or without prospects of success.
It also allows the chief justice or a designated judge to determine such an application in chambers and without oral argument.
No reasons accompanied the ruling.
The refusal means Mashuna’s appeal against a High Court order restoring an interdict over disputed mining claims remains intact and will now proceed in the normal appeal process.
The applicants had approached the Supreme Court on 7 November seeking the dismissal of Mashuna’s appeal under Rule 6 of the Supreme Court rules.
They argued that the appellant’s notice of appeal, filed on 10 October shortly after acting judge Reinhard Totemeyer confirmed an earlier interdict, was irregularly and prematurely noted.
They argued that the appeal existed solely to suspend the interdict protecting a sensitive conservation area inhabited by black rhino and that it should therefore be summarily struck from the roll with punitive costs.
Immediate intervention
The applicants said these conditions were met because the October judgment was, in their view, an interim order not appealable without leave.
They said Mashuna had not sought such leave and had instead filed a notice of appeal designed to trigger the automatic suspension of the interdict.
In their founding affidavit, they described the environmental harm they believed would occur if mining continued and argued that the appeal, if allowed to proceed in the ordinary course, would undermine ongoing review proceedings set down for hearing in 2026.
They also pointed to what they said was Mashuna’s earlier non-compliance with judge Kobus Miller’s 2024 order, claiming this justified immediate intervention under Rule 6.
Flawed application
Mashuna, in a lengthy answering affidavit, rejected these allegations and attacked the Rule 6 application as fundamentally misconceived.
He described the filing as incompetent, premature and contradictory.
He argued that the applicants could not ask the Supreme Court to dismiss an appeal as frivolous or without prospects of success while simultaneously insisting that no valid appeal existed because leave was allegedly required.
According to him, this inconsistency undermined the very foundation of a Rule 6 application, which presupposes a valid appeal.
Mashuna also argued that acting judge Totemeyer did not grant interim or alternative relief but the main relief sought by the applicants through an amended notice of motion.
He said the judgment involved the final interpretation of the earlier 24 August 2024 order and therefore constituted a final civil determination from which he could appeal as of right under Section 18 of the High Court Act and Article 80 of the Constitution.
Mashuna cited previous Supreme Court decisions involving statutory interpretation as examples of decisions appealable as of right without leave.
Appeal remains alive
He further contended that the applicants had adopted two incompatible legal strategies by pursuing a Rule 6 application in the Supreme Court while also seeking to set aside the notice of appeal as an irregular step under Rule 61 in the High Court.
In his view, a party cannot argue in one court that an appeal is invalid and in another that it should be summarily dismissed.
He said the pending High Court Rule 61 proceedings alone should have compelled the Supreme Court to dismiss the Rule 6 bid.
Mashuna denied that he continued mining unlawfully and argued that the applicants had mischaracterised the nature of the dispute.
He insisted that his appeal was correctly noted as of right and that the High Court orders were appealable.
Mashuna urged the Supreme Court to dismiss the Rule 6 application with costs.
With the Supreme Court declining to hear the application, Mashuna’s appeal remains alive.
The interdict, which halted mining activities pending review of the environmental clearance certificate and the mining claims, continues to stand but is now the subject of a full appeal before the Supreme Court.
Meanwhile, the High Court’s Rule 61 challenge and the substantive review proceedings remain pending and are expected to proceed in 2026.
The Supreme Court’s order was served on Ellis Shilengudwa Inc. for the applicants and Appolos Shimakeleni Lawyers for the respondent.
Comments
Namibian Sun
No comments have been left on this article