Court refuses to interdict seismic survey on the basis that “irreparable harm” to marine species not proved.
03 December 2021: Judgment in the High Court in Makhanda
South Africa: In the matter between the Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, Natural Justice and Greenpeace , versus the ministers of Mineral Resources and Energy and Forestry, Fisheries and Environment, and Shell to bring an urgent interdict against seismic surveys planned off the coastline of South Africa by Shell, Acting Judge Govindjee found that the applicants had successfully established that there had been no undue delay in bringing the case and the urgency of the matter justified the departure from the usual rules so that the matter could be heard urgently. In this regard he commented that he had taken account that “the public interest in this case is palpable”.
After outlining the legal tests applicable to granting interim interdicts and the significance of determining whether the applicants or the respondents would suffer “irreparable harm” if the interim interdict was granted, the judge reviewed the evidence presented by the parties.
In his analysis of how the law should be applied to the facts of this case, Govindjee AJ expressed doubts as to whether the applicants would succeed in reviewing and setting aside the granting, in 2014, of the exploration right (because of how much time had elapsed) or of the first renewal application because the lapsing of that renewal meant that the issue was now moot. However, in relation to the second renewal application, he found that the applicants had succeeded in establishing that they had prima facie prospects of success due to the apparently inadequate public participation.
However the court concluded that the applicants had failed to convince him that there was a reasonable apprehension of “irreparable harm” if the interdict were not granted and that given financial and other prejudice to Shell if the seismic surveys were delayed, the “balance of convenience” was in Shell’s favour. Consequently he dismissed the application with costs, including the costs of two counsel.
The Applicants are dismayed that the court dismissed the application without granting their request to be allowed to return to court to make further representations and present expert evidence, and awarded costs against them despite the fact that the application was made in the public interest to protect the ocean and coastal environment. The Applicants had anticipated being able to present further expert evidence of irreparable harm on the return date. The application had to be made on a hyper-urgent basis (as a consequence of Shell’s actions and the inactions of the Minister of Mineral Resources and Energy) which meant that it had not been possible for experts to finalise detailed reports and affidavits by the time the application was launched.
The Applicants will be discussing the judgment with their legal advisers with a view to deciding whether or not to apply for leave to appeal against these aspects of the judgment. In the interim, we will be doing all we can to support the application made yesterday on behalf of Wild Coast communities who are seeking to interdict the seismic surveys on the basis that Shell does not have an environmental authorisation to undertake them.
Reactions from applicants:
“The decision to allow Shell to continue with its plans to destroy the Wild Coast is very disappointing. Not only will the blasting destroy precious biodiverse ecosystems, but it will also destroy the livelihoods of local communities, all in the name of profit,” says Happy Khambule, Senior Climate and Energy Campaign Manager for Greenpeace Africa.
“We will continue to support the nation-wide resistance against Shell and pursue the legal avenue to stop Shell. We must do everything we can to undo the destructive colonial legacy of extractivism, until we live in a world where people and the planet come before the profits of toxic fossil fuel companies,” continues Khambule.
“The outcome is very unfortunate, especially since the judge did not recognise the urgency of the interdict and the immediate threat the seismic surveys pose to the environment, marine life and local communities,” says Pooven Moodley, Executive Director of Natural Justice.
“Our fight to safeguard the Wild Coast is not over, and our bigger struggle for climate justice, and to resist oil and gas drilling in South Africa and across the entire continent is far from over. As activists, civil society and lawyers, we cannot relax – the climate crisis is upon us, and fossil fuel companies accelerating the crisis are posing a serious threat to the planet, our livelihoods, human rights and very existence. We will fight them on the beaches and in court,” continues Moodley.
“Unthinkable. We’re saddened by the result but happy we did all we could under the circumstances. The seismic survey may go ahead, but there’s going to be one hellava shindig before mining starts,” says John Rance, Chair of Kei Mouth Skiboat Club (KMSBC)
“Shell and its shareholders should be ashamed of themselves. We should all be telling our investment advisors and pension funds to disinvest from Shell. It’s the only language they understand,” he continued.
“We are extremely disappointed with the outcome of this hearing. This is not the end, we will continue to fight for our local people, their heritage and the environment. We call on South Africans to stand together and protest this invasive and environmentally harmful seismic survey, as well as any future mining plans,” says John Luef of the Border Deep Sea Angling Association.
Notes to editor:
- Acting Judge Avinash Govindjee
- Shell Counsel: Adrian Friedman and Sarah Pudifin-Jones
- Ministry of Mineral Resources and Energy Counsel: Senior Counsel, Albert Beyleveld
- Applicants’ Counsel: Senior Counsel: Willie Duminy and Dawid Welgemoed
- The applicants are: Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, Natural Justice and Greenpeace Africa.
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*Urgent interdict filed to protect the Wild Coast
30 November: Yesterday evening four environmental and human rights organisations* – supported by environmental law firm, Cullinan & Associates – filed an urgent interim-interim interdict against Shell in the Eastern Cape Division of the Grahamstown High Court to prevent the fossil fuel company from commencing seismic testing along the ecologically diverse and sensitive marine environment of South Africa’s Wild Coast. The testing was due to start tomorrow, 1 December 2021.
Confirmation of the filing
Cullinan & Associates delivered a certificate of urgency to the Registrar yesterday at approximately 12h45, 29 November. Acting Judge Govindjee’s Directive was received at around 14h20, which saw the matter as urgent, and determined the following in relation to interim-interim interdict:
- Applicants to issue and file papers yesterday, 29 November
- Respondents who intend to oppose are to deliver notice of opposition and answering affidavit by 16h00 today, 30 November
- Applicants to deliver replying affidavit, if any, by 13h00 tomorrow, 1 December
- Applicants and (opposing) Respondents to file heads by 13h00 tomorrow, 1 December.
The papers were filed at the High Court of South Africa, Eastern Cape Division, Grahamstown, and served electronically on Shell’s attorneys yesterday on 29 November 2021. The matter will be heard in Grahamstown and argued virtually at 14h00 tomorrow, 1 December 2021.
*The applicants are: Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, Natural Justice and Greenpeace Africa.
Summary of grounds
Our view is that the commencement of the seismic exploration activities are prima facie unlawful until Shell has applied for, and obtained, the necessary Environmental Authorisation in terms of the National Environmental Management Act (NEMA).
We also believe that the decision-making process amounts to unjust administrative action since interested and affected parties were not informed of the granting of the exploration right or given an opportunity to appeal it. The public were also not notified of the two applications to renew the exploration right.
The vessel would, for five months, fire air guns every 10 seconds through 6,011km² of ocean surface, firing extremely loud shock wave emissions that penetrate through 3km of water and 40km into the Earth’s crust below the seabed. Marine life on the sensitive Wild Coast would be disturbed and destroyed with many sea creatures like whales, dolphins, seals, penguins, sharks and even crabs and tiny shellfish being negatively impacted by the blasts in the coming months. The Wild Coast’s pristine beaches and biodiversity attract millions of tourists every year. Seismic surveys have been linked to decreased sightings of marine life and decreased catch rates for commercial fishing.
The planned seismic survey, and planned activity thereafter will have direct and dire impacts on the social, economic and cultural rights, and ultimately the right to self determination of the communities of eXolobeni, Nqamakwe and Port Saint Johns, which depend heavily on eco-tourism and fishing for livelihoods and subsistence, and who safeguard this land as sacred and deeply connected to their identity and heritage. The needs and rights of these communities, the stewards of our seas, land and biodiversity, far outweigh the selfish interests of companies like Shell.
The mitigation measures proposed by Shell are wholly inadequate for South Africa’s most diverse coastline and will cause irreparable harm to whales, dolphins, crayfish, endemic reef fish, fish larvae, turtles, birdlife and zooplankton. Many listed as Threatened and Protected Species are located directly within the survey area. Shell’s own documents state that the surveys should not take place in December due to migratory whales (now in calf) traversing the area.
The applicants intend putting expert evidence before the court to expose how irrational and socially unjust it is for Shell to continue looking for more oil and gas reserves when the reserves already discovered cannot be used without causing catastrophic climate change, especially in light of the Dutch court ruling ordering Shell to reduce its greenhouse gas emissions by 47% within this decade.
Comments from applicants:
“This flies in the face of the government’s responsibility to protect and safeguard human rights and the environment. It also undermines our government’s obligation under the Paris Climate Agreement to mitigate the climate crisis for people now, and for future generations, and contradicts the commitments made at the recent COP26 in Glasgow to lower emissions and advance a just transition.” – Pooven Moodley, Natural Justice, Executive Director.
“It’s ludicrous that this is even being considered as an option by our government to look for gas and oil reserves in an evolving ‘greener’ world in any of our coastal waters, let alone the extremely biodiverse and sensitive Wild Coast. We will not take this lying down and will do all in our power to put a stop to it.” – John Luef, Border Deep Sea Angling Association.
“Shell’s activities threaten to destroy the Wild Coast and the lives of the people living there. We know that Shell is a climate criminal, destroying people’s lives and the planet for profit. South Africa’s problems do not require violent extraction nor destruction of the environment and community livelihoods. The best and most immediate solution is a just transition to renewable energy, ensuring safe and decent/work jobs, and energy access for all.” – Happy Khambule, Senior Climate and Energy Campaign Manager for Greenpeace Africa.