17 May 2024, Bloemfontein: Today, in a gruelling all-morning session in the Supreme Court of Appeal, advocates for Sustaining the Wild Coast, the Amadiba, Cwebe, Hobeni, Port St Johns and Kei Mouth communities, as well as for Natural Justice and Greenpeace Africa, defended the finding in the Makhanda High Court that the exploration right granted to Impact Africa and Shell in 2014 to allow for oil and gas exploration, should be set aside.
Shell, Impact Africa and the Department of Mineral Resources and Energy (DMRE) appealed the High Court ruling, arguing today that the court erred with regards to their finding. They argued that the Environmental Management Programme (EMPr) obtained before the 2014 right was granted, as well as the public participation process, was sufficient for the Minister of the DMRE to make a decision. They also argued that certain factors such as climate change and heritage rights need not have been considered in making this decision.
The DMRE’s advocate was asked by the Judges as to why the Minister of the DMRE appealed the High Court judgment. Their argument was that they were seeking clarity on the law and to respond to the counter-appeal. A cross-appeal was brought by Natural Justice and Greenpeace Africa arguing that the EMPr was not enough, and that Shell should undertake an Environmental Impact Assessment before being granted an Environmental Authorisation, as under the law as it stands today.
While the arguments were happening within the courtroom, peaceful protests took place outside the courthouse with chants of “Hamba Shell, Hamba!” (Go away Shell, Go away) “To Hell with Shell” and “Climate Justice now!”.
Acting for Wild Coast communities and supporting organisations, Advocates Ferreira and Webber reiterated that when the DMRE had to make a decision on whether to grant the exploration right, there were certain factors that the Department should have considered: These included:
- the anticipated harm to the marine and bird life along the Eastern Cape coast;
- the communities’ spiritual and cultural rights and their rights to livelihood; and
- the climate change considerations and requirements advocated by the intervening parties.
The communities’ advocates also argued that the public consultation process was flawed and that Impact Africa and Shell should have taken further steps to include communities on the Wild Coast who were left out of all information-sharing and consultation processes.
Lastly, the communities’ advocates argued that decision-makers failed to comply with the requirement of the Integrated Coastal Management Act to consider the interests of the entire community – including fishers and ocean life.
The court reserved judgment.
“I am very happy today and excited. Listening inside the court, the five Judges have given me the belief that Shell will go away for now. Shell did not consult with communities. They gave us papers in English, but when it comes to the grassroots communities, they cannot understand this because they speak isiXhosa. I am happy today listening into the court.” – Jomo Kuselo, Dwesa-Cwebe community member
“On my side, today I feel excited. The court is giving me hope. It is very clear that even the judges noted Shell did not come to the communities. I have hope that we will continue and that will win this case and we can keep what belongs to us. Thanks to everyone who supported us. We didn’t know anything about this and this was hidden, we weren’t told what was going to happen. They gave us rights but we didn’t know about this thing. Then we get excited about the rights, but then Shell decides to come to blast. They wanted to take away these rights. But now we know it won’t happen. Today’s case was very, very exciting.” – Sazise Maxwell Pekayo, fisher and community member
“I am feeling confident in our judicial system based on the previous cases. What we want the court to consider is the people and their rights before anything else.” – Cromwell Sonjica, Amadiba Crisis Committee and resident of Xolobeni
“Greenpeace Africa stands in solidarity with the Wild coast communities and all those fighting to protect our planet for future generations. The judgment which stopped Shell from drilling oil in our oceans and destroying our wild coast was a powerful message that you must involve communities in decision making and that people power works. We will continue to resist Shell’s selfishness and greed.” – Cynthia N Moyo, Greenpeace Africa’s Climate and Energy Campaigner
“It was very evident that the judges were well prepared and understood what the record of 4000 pages contained. They understood why it was important that these communities were heard and why the lack of consultation was egregious. I think it was really important for communities sitting in the courtroom, listening to arguments. It was acknowledged by Shell and Impact that no companies will conduct themselves in the same way following the court case. They were saying it in a way that it is catastrophic. It is the opposite. It is not catastrophic. After what these communities have done in this court case, it is no longer business as usual for anyone who wants to do development in South Africa.” – Wilmien Wicomb, Legal Resources Centre
“I think we came into this with a strong position. Some of the grounds of review are unassailable. Consultation, failure to consider the Integrated Coastal Management Act, climate change, non-compliance with the Minerals Act itself to give notification of the decision…Maybe it is likely they will strip back on some of these grounds, but we only need to win on one of them to have the appeal dismissed.” – Ricky Stone, Cullinan and Associates.
“From what we heard in court today, and the pertinent questions from the judges, particularly to the State, Impact and Shell counsel, I am confident that the court will uphold the rights of the Wild Coast communities and dismiss the appeal. It’s clear that the State has commercial interests at heart and this cannot stand in the way of communities defending their rights and livelihoods.” – Melissa Groenink-Groves, Natural Justice
“Today marked another day for justice where communities from the Eastern Cape are able to hold accountable one of the largest oil companies for their failure to follow the law of South Africa. Today’s hearing was inspirational and impactful. The arguments deliberated were around communities’ cultural environmental rights and climate justice. We are now waiting for judgment and we tentatively have hope that it will be in our favour.” – Lucien Limacher, Natural Justice
“The counsel for the companies were dismissive of the community concerns. They argued this judgment was dangerous for investors and oil companies, but made no mention of community concerns, and, as they were in the High Court, were dismissive of their cultural and heritage rights. They are more concerned about profits and their shareholders than they are about the clearly-articulated rights that the communities put forth.” – Delme Cupido, Natural Justice
