TGS Judgement

Today’s judgment, delivered by Justice J. Cloete in the Western Cape High Court on 13 August 2026, concerns a review application brought by Aukotowa Fisheries Primary Co-operative, The Green Connection and Natural Justice against the environmental authorisation (EA) granted to TGS Geophysical Company (UK) Ltd for a seismic survey in the Orange Basin off the Northern Cape coast. The applicants sought to set aside both the Director-General’s decision granting the EA and the subsequent appeal decision of the Minister of Forestry, Fisheries and the Environment.

Outcome

The court dismissed the application in its entirety and ordered that each party pay its own costs.

Central findings

The court emphasised that judicial review is not an appeal on the merits. Its role was limited to determining whether the decision-makers acted lawfully, rationally and procedurally fairly, rather than whether the court agreed with their conclusions.

The applicants advanced five principal grounds of review, all of which failed.

1. Failure to consider relevant information
   The court held that the decision-makers had sufficient information before them to consider the ICMA requirements and that there was no evidence that they ignored relevant factors.
2. Reliance on PASA
   The court found that PASA was entitled to provide input as an organ of state and interested party under the appeal regulations. The Minister was legally entitled to consider that input, and there was no procedural irregularity.
3. Need and desirability
   The applicants argued that the assessment of “need and desirability” was defective because it focused on potential economic benefits while overlooking broader environmental concerns. Justice Cloete distinguished the case from The Green Connection exploration-right judgment, noting that TGS sought only permission to conduct a seismic survey. No production rights existed, and it was unknown whether any commercially recoverable hydrocarbons would ever be found. The court therefore held that arguments about future extraction and production were speculative and could not invalidate the authorisation for a reconnaissance survey
4. Marine impacts and precaution
   The judgment held that the environmental risks had been assessed and that the precautionary principle did not require ‘impossible’ levels of certainty before a survey could proceed.
5. Emergency plans submitted after authorisation
   The court rejected the argument that a Shipboard Oil Pollution Emergency Plan (SOPEP) and Emergency Response and Medical Evacuation Plan (ERMEP) could not lawfully be left for approval after the EA was granted, finding that:
   1. the risks addressed by those plans had already been identified and assessed in the BAR and EMPr;
   2. mitigation measures were already specified;
   3. the plans merely operationalised those measures;
   4. public participation had already occurred on the underlying risks.
      
      Justice Cloete expressly stated that if the earlier Green Connection judgment reached a different conclusion on substantially similar facts, she respectfully disagreed with it.

Significance

The significance of the TGS judgment lies in its reaffirmation of a regulatory model that treats offshore risk, even at scale of 57,400 km², as technically manageable and knowable through existing expert assessment processes.The court accepts that the potential impacts of seismic surveying can be adequately addressed through environmental assessment, mitigation measures, and monitoring.

From the perspective advanced by the Oceans Not Oil coalition, however, the judgment exposes an unresolved tension between this administrative conception of risk and a growing body of ecological, climate, and fisheries science that understands offshore oil and gas development as a cumulative socio-ecological process whose consequences exceed the boundaries of individual projects. This tension is particularly acute on South Africa’s West Coast, where marine ecosystems are already confronting multiple interacting pressures, including climate-driven ocean change, industrial fishing, declining fish stocks, habitat degradation, pollution, shipping, and broader transformations within the Benguela ecosystem. Recent concerns regarding fisheries decline and ecosystem stress further raise questions about whether existing assessment frameworks are capable of adequately accounting for cumulative impacts in an already vulnerable marine environment.

The judgment therefore reveals an ongoing contestation over what constitutes sufficient evidence of harm, how precaution should be applied under conditions of scientific uncertainty, and how different forms of knowledge are weighted within environmental decision-making. By treating seismic surveying separately from the wider offshore petroleum trajectory of which it forms a part, the judgment leaves unresolved the question of how cumulative ecological risks should be governed in an era of accelerating climate disruption, biodiversity loss, and increasing pressure on marine ecosystems.

Photo: Aukotowa Fisheries Co-op