The second day of the three-day court case between Shell, Impact Africa and environmental activists kicked off at the Gqeberha High Court on Tuesday following arguments from advocate Tembeka Ngcukaitobi SC and advocate Nick Ferreira on Monday.
The judges adjourned the matter, reserving judgment in both granting the joinder application put forward by Natural Justice and Greenpeace Africa (represented by the environmental law firm Cullinan & Associates) and the declarator that Shell required an environmental authorisation under the National Environmental Management Act (Nema), and if their exploration rights had been lawfully awarded by the Department of Mineral Resources and Energy (DMRE).
On Monday, Judge President Selby Mbenenge, Deputy Judge President Zamani Nhlangulela and Judge Thandi Norman heard the merits of the joinder application.
On Tuesday, Jeremy Gauntlett SC, representing Impact Africa, argued against the joinder application sought by Natural Justice and Greenpeace Africa, saying the two organisations added nothing new to the case and had decided to attach themselves like a “cuckoo in a nest”.
During the second day, Gauntlett argued that the applicants were using a legal “knobkerrie” via interdict to undermine Minister Gwede Mantashe’s authority to decide the matter, laying blame on imperfect legislation rather than the decision-maker.
Gauntlett also argued that the precautionary principle did not apply to this case but that the relevant question was whether the harm was serious and irreversible.
Demonstrators, led by affected coastal communities, had gathered outside the Gqeberha High Court since Monday to show their support at the start of the three-day legal challenge against Shell and Impact Africa’s seismic surveys off the Wild Coast, and the 2014 decision by the DMRE to grant Shell an exploration right off the coast of South Africa.
Part B of the case against Shell and the department – which galvanised widespread protest action across South Africa in 2021 – began on Monday after Shell was temporarily interdicted from undertaking seismic blasting in search of oil and gas along the Wild Coast in December that year, until Part B of the original application had been finalised.
This time, the case goes beyond the original interdict to review the granting of Shell’s exploration right. The original applicants, Sustaining the Wild Coast and the affected coastal communities, have been joined by Natural Justice and Greenpeace Africa.
Representing the DMRE, advocate Albert Beyleveld SC argued that the notification published in a newspaper was adequate, according to the Mineral and Petroleum Resources Development Act (MPRDA) regulations.
“No consultative process can reach everybody, so the fact that the consultative process in question did not reach affected communities should not render the consultative process inadequate so long as the process met the basic listed requirements set forth in the regulations,” he said.
Beyleveld said the applicants should have instead directly challenged the regulations themselves as inadequate.
“The applicants were required to first resort to internal remedies under the MPRDA before bringing a court application,” he said.
On behalf of Shell, advocate Adrian Friedman stated that an approved environmental management programme (EMPr) under the old MPRDA is not only the equivalent of an approved EMPr under the One Environmental System, but that this EMPr is also the equivalent of an environmental authorisation (EA) under the One Environmental System, and as such, Shell should not have been required to obtain an EA in order to commence seismic testing.
“All three impugned decisions suffer from inadequate exhaustion of internal remedies. The applicants have made a virtue of their own delay and have come to court to make opportunistic arguments instead of turning to DMRE for redress,” he said.
Friedman said the only fair approach to evaluating consultation processes was to apply the regulations as written, without engaging in a further subjective inquiry into the adequacy of the consultation process that took place.
He went on to dispute the fact that environmental harm would result from conducting seismic testing.
Responding to the arguments, Ngcukaitobi highlighted the differences between an EA under Nema and an EMPr under the MPRDA and argued that a plain reading of the laws and regulations undercut the respondents’ “circular and untenable” argument that an EMPr under the MPRDA is the equivalent of an EA under Nema.
He pointed out: “The egregiousness of Minister [Gwede] Mantashe’s biased public commentary and the fact that an entity associated with Shell donated significant amounts of money to the ANC in late 2021. Once it is clear that there is a reasonable apprehension of bias, which is where we are, no one can sensibly argue that there are available alternative measures,” he said.
Ngcukaitobi refuted Shell’s claim that a tick-box exercise of those bare minimum requirements expressly stated in the regulations constituted adequate consultation by referring to the Constitutional Court’s stated preference for a procedural fairness standard when assessing the adequacy of consultation under the MPRDA.
Ngcukaitobi said that contrary to the suggestion they had heard over and over again, experts had told the court that harm from the offshore exploration was inevitable.
“After reminding the court that the impugned decisions ignore a whole body of information on harm to human and environmental rights that should have been taken into account, expert evidence [has been led] on the high likelihood of serious harm and the inadequacy of the proposed mitigation measures – some findings with which even the respondents’ experts agree,” he said.
He said if ever there was a case deserving of the precautionary principle, it was this one.
Ferreira told the court that an EA is a legal requirement, independent of an exploration right and that an EA was required in order to undertake any listed activity under Nema.
“As such, the validity of the exploration right is separate from the requirement for an EA, and Shell needed an EA prior to conducting a seismic survey, which is a listed activity under Nema. Further, though the minister has the power to deem an EMPr under the MPRDA to be an EA under Nema, the minister has not actually exercised this power in this case. Instead, as advocate Ferreira described, Shell is trying to engage in a ventriloquist’s dummy trick for the minister to say that the minister has deemed their EMPr an EA under Nema, but the minister has not in fact made any such determination in this case,” he said.
Ferreira reminded the court that the intervening applicants had requested copies of the decisions and corresponding reasons from the DMRE and the Department of Forestry, Fisheries and the Environment, but received no response – preventing them from pursuing internal remedies with the departments.
Wilmien Wicomb, an attorney with the Legal Resources Centre, said Ngcukaitobi had told the court that Shell and Impact had marginalised the very people who live by and from the ocean that they want to blast, by the manner in which they conducted participation.
“It is now asking the court to further the marginalisation by sending them back to Minister Mantashe to do an internal appeal before coming back to court,” Wicomb said. DM/OBP