On 1 September the High Court in Makhanda ruled that Shell and Impact Africa’s exploration right to conduct seismic surveys on the Wild Coast of South Africa was granted unlawfully and therefore set it aside.
On 20 September, Impact Africa lodged an application for leave to appeal the Makhanda High Court ruling, and the Minister of Minerals and Energy and Shell lodged similar applications on the 22 September.
The tightly-reasoned judgment of three judges of the Eastern Cape High Court of 1 September 2022, was internationally recognised as a resounding victory for social and environmental justice. The judges found that the granting of the exploration right and its implications had not been made known to affected communities and that “the mere ticking of a checklist” did not constitute meaningful consultation. The court set aside the decision to grant the exploration right on the basis that it was procedurally unfair, but also noted that it failed to pass muster on several other grounds, including the failure to take account of relevant information, including climate change and the right to food, a failure to take account of the Integrated Coastal Management Act (ICMA), and the failure to comply with various legal requirements such as the requirement to create opportunities for historically disadvantaged people to participate in the minerals and petroleum industries. The court found that the Department of Minerals and Energy had failed to consider the communities’ spiritual and cultural rights and their rights to livelihood, the potential climate change implications, and the anticipated harm to the marine and bird life along the Eastern Cape coast. It held that Impact and Shell bore the onus of showing that the precautionary principle should not be applied when experts differed on whether the adverse impacts of the seismic surveys were adequately mitigated.
In short, the court found in favour of the applicants on all the grounds of review.
The application was brought by Wild coast residents and fishers, the Dwesa-Cwebe Communal Property Association, and the NGOs Sustaining the Wild Coast NPC and All Rise Attorneys, who were represented by the Legal Resources Centre and Richard Spoor Attorneys. They were joined by Natural Justice and Greenpeace Africa, represented by environmental law firm, Cullinans and Associates, which had launched the first application to interdict the seismic survey. The court commended Natural Justice and Greenpeace Africa for joining this litigation rather than continuing with separate review proceedings as they were entitled to do.
Critically, the judgment put paid to allegations that the communities are simply anti-development and drew attention to the fact that a proper assessment of whether such oil and gas exploration was needed and desirable had not been done and the claimed benefits were unsubstantiated. It found: “No detail to substantiate these claims; no explanation as to how the jobs will be created, how the economy will be stimulated, or how the seismic survey will improve socio-economic circumstances in which most South Africans live, are provided.”
Grounds of appeal
Shell, Impact Africa and the Minister are seeking leave to appeal on various grounds. Notable, they argue that the public had been properly notified of the decision to grant the exploration right and that the court should not have allowed the decision to be challenged so long after it was made. They also argue that the court was wrong to deal with exploration as a step in a single process that culminates in the production and combustion of oil and gas and was incorrect in applying the precautionary principle to the expert evidence on the harms of seismic surveys. Shell also argues that the court was wrong to conclude that the public statements made by Minister Mantashe gave rise to a reasonable apprehension of bias and that lodging an appeal to him would have been an exercise in futility.
Nonhle Mbuthuma from the Amadiba Crisis Committee: “We were not surprised that they would appeal. Government and Shell think this is a big stake. This is all about state and big corporates. They keep calling the Eastern Cape the “poorest of the poor”, so why choose development that doesn’t represent the interests of the Eastern Cape? We’ve seen this before with titanium mining – government appealing against its own community. Government is not respecting and listening to the will of the people. Government is representing the interests of corporations. This issue is bigger than government, it’s about the planet. This is just the beginning and we are ready to fight for our future.”
Sinegugu Zukulu from Sustaining the Wild Coast: “This is a legal recourse to appeal so they are using their own right. But what is concerning here, is if you’re looking at this particular judgment, its what one could term as a groundbreaking judgment. It does also indicate the flaws and the problems with the way that the department and these multinational corporations want to do things. It shows the stubbornness and the rudeness and the disregard of the rights of the people.
Their continuation to litigate against communities is something very concerning in a democratic state. If you’re looking at what the minister has done, where he goes around talking to traditional leaders, instead of going directly to the people when he knows quite well, that traditional leaders do not have an authority to represent their views or to talk on behalf of the people. So this failure and continuation by the state and Shell to go ahead shows how radical and rude they are in the disregard of human rights. This is very dangerous. We hope that the Constitutional Court or Supreme Court of Appeals will be able to see this and they will be able to consider this and make a meaningful judgment and ruling.
Cormac Cullinan director of Cullinan and Associates: “The Makhanda High Court judgment found Minister Gwede Mantashe to be biased in favour of the oil and gas industry. Shell, Impact Africa and Minister Gwede Mantashe want leave to appeal so that they can continue investing in increasing South Africa’s reliance on fossil fuels and exacerbate the climate emergency. It is dangerous and irresponsible to continue with activities that drive climate change and will contribute to untold suffering in Africa. As the UN Secretary General stated in April this year “We are on a fast track to climate disaster…. . … This is not fiction or exaggeration. It is what science tells us will result from our current energy policies. …. … Some Government and business leaders are saying one thing, but doing another. Simply put, they are lying. And the results will be catastrophic. This is a climate emergency.”
“We are confident that our team of advocates and the combined efforts of the attorneys of Cullinan and Associates, the Legal Resources Centre and Richard Spoor and Co, will successfully resist this further attempt to legitimise harm to human and ecological communities of the Wild Coast in the pursuit of fossil fuels.
If we want to see the end of load shedding, we cannot wait more than a decade for costly, harmful mega-projects to come on-stream. Energy modelling proves that renewables are the quickest and cheapest way to get much-needed capacity on to the grid. The South African economy cannot afford more investment in wholly unnecessary fossil fuel infrastructure destined to become stranded assets.”
Ricky Stone attorney with Cullinan and Associates: “Seismic blasting poses an immediate threat to South Africa’s rich marine life, but the eventual extraction and use of oil and gas likely to follow such exploration will have even more profound impacts. It would be critical to focus instead on renewable and natural energy sources and leave the oil in the ground and the gas beneath the sea.”
Thandile Chinyavanhu from Greenpeace Africa : “Greenpeace Africa is disappointed that Minister Mantashe has made his bias clear: he is on the side of profit, not people. Seismic blasting off the Wild Coast will only destroy the lives and livelihoods of the people who live there.
It is delusional to think that fossil fuels will save unemployed South Africans, solve the energy crisis, or provide decent employment for the people of South Africa. In reality, extracting more fossil fuels will only drive us deeper into the climate crisis. A just transition to renewable energy is the best and most immediate solution to South Africa’s problems. We will continue to resist the lies peddled by fossil fuel companies, in and out of the courts.”
Shell, Minister Mantashe and Impact Africa’s appeal documents can be read or downloaded below
ONO thanks and acknowledges Natural Justice for their input on this page.