Ultimate Safaris, conservancies' urgent application fails

An urgent application brought by Ultimate Safaris, Doro !Nawas Conservancy, Ûibasen Twyfelfontein Conservancy and the ≠Aodaman Traditional Authority against Ottilie Ndimulunde was struck from the roll on Friday by judge Orben Sibeya.

Sibeya ruled that the urgent application did not meet the necessary requirements and ordered the plaintiffs to pay the costs of the application, including those incurred by Ndimulunde.

The application was filed after Ndimulunde allegedly resumed road construction. An interdict had been granted to the applicants during a previous court case against Timoteus Mashuna after it was discovered that Mashuna was constructing a road to his mining claims that was equivalent in size and scale to a district road, causing environmental damage in the process.

Reasons

Sibeya said that the application against Ndimulunde was filed for an interdictory order on an extremely urgent basis. “The applicants approached this court on a matter of extreme urgency, and set the application down for hearing on Sunday 15 September at 12h00.”

The judge noted that the main relief sought by the applicants was to interdict the first respondent from using heavy machinery to construct a new road from the D2612 to the site of the mining claims or any new roads, roadworks or vehicular tracks on farms 535 Probeer and 527 Draaihoek in the Khorixas district, pending the review of the environmental commissioner’s decision to issue an environmental clearance certificate to Ndimulunde.

Summarising, Sibeya said Ndimulunde, in her answering affidavit, raised points of law concerning a lack of urgency, non-joinder and locus standi. She contended that the applicants' application was not urgent, explaining that it was filed on Friday, 13 September, to be heard on Sunday, 15 September.

However, it was instead heard on Monday morning, 16 September. She further contended that her mining claims fall under the exclusive jurisdiction of the Daure Daman Traditional Authority, which therefore has a direct and substantial interest in the application but was not joined as a party to the matter.

Lack of urgency

Sibeya said the applicants were required to set out, in their founding papers, facts and reasons that render their application extremely urgent so as not to wait for the next court day, required by rule 73(1) of the rules of the High Court.

The judge said the applicants failed to meet the requirements of that rule and further failed to meet the requirements of rule 73(4)(b) by not establishing that they cannot be afforded substantial redress at a hearing in due course, especially in consideration of the Environmental Management Act 7 of 2007, which allows a party to approach the minister to suspend or cancel an environmental clearance certificate, even on an emergency basis. The application was struck from the roll with costs for lack of urgency.

Managing Director of Ultimate Safaris, Tristan Cowley, said they are disappointed that the judge did not see the urgency with regards to destruction of the environment, the protection of which is enshrined in the constitution. “We are obviously considering our options as this ruling is an unfortunate precedent for community-based natural resource management and the hard work conservancies put into protecting these areas,” he said.