Applicants’ arguments heard to save the Wild Coast

By Natural Justice

30 May 2022, Gqeberha, South Africa: Demonstrators led by affected coastal communities gathered outside the Gqeberha High Court today for the start of the three-day legal challenge against Shell and Impact Africa’s seismic surveys off the Wild Coast, and the unlawful decision in 2014, by the Department of Mineral Resources and Energy to grant Shell an exploration right off the coast of South Africa. 

Part B of the case against Shell and the DMRE, which galvanised widespread protest action across the country last year, began today after Shell was temporarily interdicted from undertaking seismic blasting in search of oil and gas along the Wild Coast in December 2021 until Part B of the original application has been finalised. This time, the case goes beyond the original interdict to review the unlawful and irrational granting of Shell’s exploration right. The original applicants Sustaining the Wild Coast and the affected coastal communities have been joined by additional applicants Natural Justice and Greenpeace Africa. Represented by environmental law firm, Cullinan & Associates, the merits of their joinder application were heard today. 

The case is being heard for three days by a bench of three justices: Mbenenge JP, Nhlangulela DJP and Norman J, and the court will need to determine whether Shell required an environmental authorisation under the National Environmental Management Act (NEMA) and if their exploration right was lawfully awarded. The applicants are calling on the public to donate here to fund a united legal front and strengthen the global movement to transition away from fossil fuels and advance a sustainable future.

Summary of arguments: 1st-9th applicants

Advocate Tembeka Ngcukaitobi SC represented Wild Coast Communities’ two grounds to challenge Shell: that their exploration right was granted unlawfully and that Shell needs to obtain an environmental authorisation before conducting seismic blasting.

Exploration Right Granted Unlawfully

Ngcukaitobi SC explained that Shell’s exploration right was unlawfully granted because there was no consultation with affected communities. The heart of his argument was that there was no meaningful consultation with communities that will be affected by Shell’s seismic blasting in search of oil and gas, because they were not consulted at all. He showed that none of the notices for consultation were in isiXhosa, and that even if they had been they were in newspapers that are not in circulation among Wild Coast Communities. While Shell relies on consultation with traditional leaders, the evidence from the communities makes clear that this is not sufficient. In any event, Adv Ngcukaitobi SC pointed out that Shell’s papers reveal that the very traditional leaders Shell consulted made clear that meaningful consultation with communities was required.

Environmental Authorisation Required

Adv Ngcukaitobi SC argued that even if Shell’s exploration right is lawful, Shell should not be permitted to conduct seismic blasting without an environmental authorisation under the National Environmental Management Act (NEMA). Shell accepts that it does not have an environmental authorisation. Its argument is that it does not need one. Adv Ngcukaitobi SC argued that it is plain in law that this is wrong: they may not commence seismic blasting without one. Advocate Nick Ferreira opened with arguments in favour of the joinder of Natural Justice and Greenpeace Africa (i.e. Natural Justice and Greenpeace Africa joining the application originally made by Applicants 1-7) before delving into substantive arguments to supplement those set forth by Applicants 1-7. 

Failure to consider climate change 

In addition to explaining that the respondents do not have the necessary environmental authorisation to conduct exploration activities, Adv Ferreira highlighted that decision-makers failed to consider climate impacts and key legislation in issuing the exploration right and subsequent renewals. Climate change impacts from the future exploitation that was envisaged in granting this exploration right should have been considered, especially in light of the fact that the supposed economic benefits of exploitation were considered. As Advocate Ferreria stated, “They can’t have their cake and eat it: if the benefits of exploitation are relevant, then so too are the climate change harms that will result from it.”

Failure to consider the Integrated Coastal Management Act 

Decision makers did not consider the National Environmental Management: Integrated Coastal Management Act (NEM:ICMA), which requires all government officials rendering decisions related to coastal public property or coastal activities – including offshore seismic testing – to consider the interests of the entire community, future generations, and the environment. Adv Ferreira pointed out that the Minister conceded as a matter of fact that he did not take the provisions of NEM:ICMA into account. As Adv Ferreira stated to the court, “Even as a check-box exercise, they forgot to check one of the boxes.”

Ferreira stated that the damning nature of the decision makers’ failure to consider the NEM:ICMA explains the respondents’ “desperation” to see the case thrown out on procedural grounds. With respect to unreasonable delay, not only were many impacted community members unaware of the seismic testing due to the inadequate public participation process, but registered interested and affected parties were not even informed of the granting or subsequent renewals of the exploration right. Finally, in response to the respondents’ claims that the applicants failed to exhaust internal remedies prior to approaching the Court, Ferreira emphasised what Judge Bloem stated in granting an interim interdict: an appeal to Minister Gwede Mantashe would be futile in light of the Minister’s public statements on the issues at stake and on this litigation itself.

Jeremy Gauntlett SC opened arguments for the 5th Respondent (Impact Africa), and will continue tomorrow, 31 May at 9:30am when court is back in session.  

Quotes from applicants and attorneys:

“This case is about making sure that profit making does not override human rights. It is about making sure that the voices of rural communities are as important as the voices of the elite,” Nonhle Mbuthuma, Amadiba Crisis Committee.

“This case reminds us that constitutional rights belong to the people…and that the only way that we can assure that the rights of indigenous people are living – and not just written on paper – is if we challenge government decisions that disregard these rights,” Sinegugu Zukulu, Sustaining the Wild Coast.

“The Shell case is significant because it provides a key moment to reflect on the accelerated pathway we are on towards the 6th mass extinction event. Based on the latest science we will pass 1.5 degrees warming in the next few years. So the battle against Shell is the fight of and for our lives,” Pooven Moodley, Director of Natural Justice.

“The applicant communities told the court exactly how the top down process of consultation employed by Shell and Impact, and approved by the Minister, excluded them from development decisions. That is not sustainable development. We expect the respondents to focus on technical defences to kick the applicants out of court,” Wilmien Wicomb, Attorney, Legal Resources Centre (LRC).

“Inside and outside of the courtroom, communities impacted by Shell’s unscrupulous behaviour sent a clear, unified message today: South Africa does not need Shell’s climate-hostile false promises. South Africa needs solutions, like a just transition to renewable energy,” Thandile Chinyavanhu, Greenpeace Africa Climate and Energy Campaigner.

“For once, and for all to see through the broadcast of public interest litigation; the overly opaque nature of the mining industry has been laid bare before a High Court. Whilst South Africans are long accustomed to being subjected to tick-boxing exercises; the tide is turning, with the applicants firmly on the right side of history,” Ricky Stone, Cullinan & Associates.

 Ends

Notes to editor: 

  • Register here to join a post-hearing webinar with attorneys and applicants after court adjourns, this Wednesday, 1 June.
  • Read previous press release & fact sheet
  • The founding affidavits and supplementary affidavits can be found on our website 
  • Live stream link: Sustaining Wild Coast and Others – YouTube
  • We are asking the public to donate here to fund a united legal front and strengthen the global movement to transition away from fossil fuels and advance a sustainable future.
  • The applicants will release post-hearing press releases over the course of the hearings 30 May- 1 June, specifically 30th May & 1st June. 

Counsel: 

  • Counsel for Applicants 1-7: Tembeka Ngcukaitobi SC; Emma Webber; Nikki Stein. Instructing Attorneys: Legal Resources Centre and Richard Spoor Inc. 
  • Counsel for Applicants 8-9: Nick Ferreira and Cingashe Tabata. Instructing Attorneys: Cullinan & Associates Inc. 
  • Counsel for the Minister of the Department of Mineral Resources: Albert Beyleveld SC and Avian Barnett. Instructing Attorneys: State Attorney. 
  • Counsel for the Minister of the Department of Forestry, Fisheries and the Environment: Jennifer Williams. Instructing Attorneys: State Attorney. 
  • Counsel for Shell: Adrian Friedman and Sarah Pudifin-Jones. Instructing Attorneys: Shepstone & Wylie Inc. 
  • Counsel for Impact Africa: Jeremy Gauntlett SC QC; Frank Pelser; Adiel Nacerodien; Nikiwe Nyathi. Instructing Attorneys: Cliffe Dekker Hofmeyr Inc. 

Applicants and respondents:

  • SUSTAINING THE WILD COAST NPC First applicant
  • MASHONA WETU DLAMINI Second applicant
  • DWESA-CWEBE COMMUNAL PROPERTY ASSOCIATION Third applicant
  • NTSINDISO NONGCAVU Fourth applicant
  • SAZISE MAXWELL PEKAYO Fifth applicant
  • CAMERON THORPE Sixth applicant
  • ALL RISE ATTORNEYS FOR CLIMATE AND THE ENVIRONMENT NPC Seventh applicant
  • NATURAL JUSTICE Eighth applicant
  • GREENPEACE ENVIRONMENTAL ORGANISATION Ninth applicant
  • MINISTER OF MINERAL RESOURCES AND ENERGY First respondent
  • MINISTER OF ENVIRONMENT, FORESTRY AND FISHERIES Second respondent
  • SHELL EXPLORATION AND PRODUCTION SOUTH AFRICA BV Third respondent
  • IMPACT AFRICA LIMITED Fourth respondent
  • BG INTERNATIONAL LIMITED Fifth respondent

For media enquiries contact: 

30 May 2022

Theme

Climate Change, Environmental Defenders, International Advocacy, Litigation

Programme

Climate Change, Extractives and Infrastructure, Governance of Lands and Natural Resources

Country

South Africa

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