Back in court: Natural Justice joins challenge to Shell’s seismic testing off the Wild Coast  

By Natural Justice

Natural Justice and Greenpeace Africa have applied to join the court case, brought on behalf of Wild Coast communities and small-scale fishers represented by the Legal Resources Centre (LRC) and Richard Spoor Attorneys.  

Part A of this case saw Shell interdicted from undertaking seismic surveys off the Wild Coast until Part B is heard, in which the decision by the Department of Mineral Resources and Energy (DMRE) to grant an exploration right will be reviewed. Both the joinder application and Part B will be heard by a full bench in Gqeberha at the Port Elizabeth High Court, over three days from Monday 30 May to Wednesday 1 June, next week. 

On 29 November 2021, Natural Justice and Greenpeace Africa, with two other applicants, represented by environmental law firm Cullinan & Associates, instituted rule nisi proceedings in the Grahamstown High Court seeking an urgent interim interdict to stop the commencement of the seismic testing. That application was unsuccessful. However, a successful interdict was obtained a few weeks later by the applicants in the Sustaining the Wild Coast case.   

Due to the similarities between the two court cases, Greenpeace Africa and Natural Justice filed an application in February 2022 requesting that their case for judicial review be joined with the application in the Sustaining the Wild Coast case.  

The government ministries and Shell raised no objections to the application to join the proceedings, while Impact Africa, having now split legal representation from Shell, objected to the joinder application.  The joinder application as well as the judicial review of the DMRE’s decisions to grant the exploration rights and renew them twice, will be presided over by Judges Mbenenge JP, Nhlangulela DJP and Norman J in the Port Elizabeth High Court in Gqeberha, 30 May to 1 June 2022. 

Key arguments before the court 

Lawfulness of conducting a seismic survey without an environmental authorisation  

Both the Mineral and Petroleum Resources Development Act (MPRDA) and the National Environmental Management Act (NEMA) render Shell’s activities prima facie unlawful. Shell argues that the Environmental Management Program (EMPr) approved in 2014, serves as an environmental authorisation. The applicants argue that Shell violated both the MPRDA and NEMA by commencing the seismic surveys without an environmental authorisation, since an EMPr does not displace NEMA nor constitute an environmental authorisation under NEMA. 

Violations of communities’ constitutional rights  

The EMPr that Shell developed is outdated and contains significant information gaps, including the harm to the environment and the impact of the surveys on communities’ rights. The EMPr and audit do not contain any consideration communities’ cultural, spiritual, or heritage associations to the ocean. Both the sea and its sand are held in reverence by the different communities along the coast. None of the mitigation measures proposed in the EMPr address, mitigate, nor minimise the harm to these cultural rights.  

Inadequate public participation  

Shell argues that it consulted all communities along the affected coastline by meeting with a representative of three traditional kings in the Eastern Cape. However, the traditional leaders do not represent all communities that will be affected by the seismic surveys. Moreover, none of the affected communities were engaged in the preparation of the 2013 EMPr nor the 2020 EMPr audit.  

Failure to consider climate change and the interests of the whole community 

The applicants argue that DMRE officials ignored the provisions of the National Environmental Management: Integrated Coastal Management Act (ICMA) and granted the exploration right without considering relevant provisions. In terms of the ICMA, the ocean is considered public property which must be managed in the interests of the “whole community” (including non-human species and future generations). The decision-makers also failed to consider the climate change impacts of exploring for, and then, exploiting oil and gas off the Wild Coast. 

Procedural unfairness 

Shell and the Minister of Minerals and Energy argue that the DMRE was not required to notify anyone that they had granted the exploration right in 2014 notwithstanding the hundreds of ordinary South Africans who registered as Interested and Affected Parties (I&APs) during the 2013 consultation process. The applicants say that this constitutes an affront to fair administrative action in clear violation of the MPRDA and the Promotion of Administrative Justice Act (PAJA), and that, as a consequence, I&APs were denied their rights to request written reasons for the decision and institute an internal appeal. 

Impact of favourable judgment  

If successful, several flawed decisions on the part of the DMRE will be set aside, while Shell and Impact Africa will be prohibited from undertaking seismic surveys under the exploration right in question.  

The relief sought, as amended, includes the review and setting aside of 1) the DMRE’s decision to grant the Exploration Right to Impact Africa in April 2014, 2) the DMRE’s decisions to renew the exploration right in December 2017 and August 2021, and 3) a final interdict prohibiting Shell from undertaking seismic survey operations under the exploration right.  

Furthermore, this case also seeks a declaration that an EMPr under the MPRDA is not equivalent to an environmental authorisation under NEMA. Thus, a holder of an exploration right under the MPRDA may not undertake any seismic survey if it has not been granted an environment authorisation. This will ensure that any future seismic testing abides by the dictates of the law, including the adequate public participation processes, need and desirability assessments and environmental impact assessments that obtaining an environmental authorisation under NEMA requires. 

ENDS 

Notes to editor: 

Factsheet

The founding affidavits and supplementary affidavits with expert reports can be found on our website here: (LINK)  

Natural Justice will be sharing a livestreaming link ahead of the hearings, with post-hearing press releases over the course of the hearings 30 May- 1 June, specifically 30th May & 1st June. 

A post-mortem webinar with attorneys and applicants will be held after the 3rd and final day of the hearing at 18:00 on 1 June: Register here. 

To fund a united legal front and strengthen the global movement to transition away from fossil fuels and advance a sustainable future donate here. 

Applicant parties, communities and the public will be staging a picket on the 30 March in Gqeberha, starting at 8am at Donkin Reserve: walking down Athol Fugard Terrance to the courthouse in Bird Street.  

  • 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. 

For media enquiries contact: 

26 May 2022

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