Another Milestone in the Shell Case
On 13 December 2022, following on from the Shell leave to appeal hearing on the 28th of November, the Eastern Cape High Court has handed down a judgment granting Shell, Impact Africa and the Minister of Mineral Resources and Energy leave to appeal to the Supreme Court of Appeal.
So what has happened since this time last year?
In November 2021, an Environmental Management Programme was approved and effectively gave the go-ahead for Shell to undertake seismic surveys along the Wild Coast. Various environmental groups, conservationists, and community members began to protest, through both in the courts and in the media.
December 2021, papers were filed for an interdict against Shell, Impact Africa and the Minister of Mineral Resources and Energy.
September 2022 – the Makhanda High Court ruled that Shell’s exploration right to conduct seismic surveys on the Wild Coast was granted unlawfully and therefore set it aside.
Later in September 2022, Shell, Impact Africa and the Minister lodged an application for leave to appeal the Makhanda High Court ruling.
December 2022, the Eastern Cape High Court handed down judgment granting Shell, Impact Africa and the Minister of Mineral Resources and Energy leave to appeal to the Supreme Court of Appeal.
In the judgement released on 13 December 2022, the court found that, while it could see no prospects of success for the appeal, it would grant leave to appeal because the issues are of public importance and should be heard before the higher courts. In addition, the applicants (Wild Coast Communities and NGO Partners) also asked for leave to cross-appeal the court’s decision not to consider whether Shell and Impact Africa required an Environmental Authorization prior to commencing their seismic survey. This cross-appeal was also granted and it will provide clarity on the scope and nature of obligations under the National Environmental Management Act (NEMA), as well as the Mineral and Petroleum Resources Development Act (MPRDA), giving effect to Section 24 of the Constitution.
So what next?
It is expected that the Supreme Court of Appeal will grant a court date early next year where this case will continue to be argued.
ONO thanks Cullinan & Associates for this update. Cullinan & Associates has additional information, documentation and a useful summary of this case available on their website.