Civil society protests outside the Gqeberha High Court while lawyers fight to have Shell’s exploration right reviewed.
Demonstrators led by affected coastal communities gathered outside the Gqeberha High Court on 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 Department of Mineral Resources and Energy (DMRE) to grant Shell an exploration right off the coast of South Africa.
Environmentalists say that while they are putting their faith in the justice system, they will not let Shell rest. The coordinator for the South Durban Community Environmental Alliance, Desmond D’sa, said nobody was happy with Shell’s seismic study.
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, and are represented by environmental law firm Cullinan & Associates.
On Monday, Judge President Selby Mbenenge, Deputy Judge President Zamani Nhlangulela and Judge Thandi Norman heard the merits of the joinder application.
The judges are to determine whether Shell required an environmental authorisation under the National Environmental Management Act (Nema) and whether its exploration right was lawfully awarded.
Representing the Wild Coast communities, advocate Tembeka Ngcukaitobi SC said Shell’s exploration right was granted unlawfully and the company needed to obtain an environmental authorisation before conducting seismic blasting.
“Shell’s exploration right was unlawfully granted because there was no consultation with affected communities. There was no meaningful consultation with communities that will be affected by Shell’s seismic blasting in search of oil and gas.
“None of the notices for consultation was in isiXhosa, and… even if they had been, they were in newspapers that are not in circulation among Wild Coast communities,” he said.
He said Shell relied on consultation with traditional leaders.
“The evidence from the communities makes it clear that this is not sufficient. Shell’s papers reveal that the very traditional leaders Shell consulted made it clear that meaningful consultation with communities was required.”
Ngcukaitobi argued that even if Shell’s exploration rights were lawful, the company should not be permitted to conduct seismic blasting without an environmental authorisation under the Nema.
“Shell accepts that it does not have an environmental authorisation. Its argument is that it does not need one. It is plain in law that this is wrong: they may not commence seismic blasting without one,” he said.
During a protest D’sa said the fight against Shell was far from over: “We are not going to be quiet, we will stand up now and we will deal with them.”
Advocate Nick Ferreira opened with arguments in favour of the joinder of Natural Justice and Greenpeace Africa.
In addition to explaining that the respondents do not have the necessary environmental authorisation to conduct exploration activities, Ferreira highlighted that decision-makers had 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.
“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,” he said.
Ferreira said decision-makers had not considered 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.
“The minister conceded as a matter of fact that he did not take the provisions of NEM: Icma into account. Even as a check-box exercise, they forgot to check one of the boxes,” he said.
Ferreira said the damning nature of the decision-makers’ failure to consider the NEM: Icma explained 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,” he said.
In response to the respondents’ claims that the applicants had failed to exhaust internal remedies before approaching the court, Ferreira emphasised what Judge Bloem stated in granting an interim interdict, that 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 Impact Africa and will continue on Tuesday at 9.30am when the court is back in session.
Pearl Govender, a fisher from Phoenix who relies on fishing to feed her family, said she believed Shell was going to destroy the community’s livelihoods. “If they are going to drill for oil what happens to our livelihood? What happens to our fish?”
Govender said she was fighting not just for herself but for her four-year-old grandson, who loves fishing.
Wilmien Wicomb, an attorney at the Legal Resources Centre, said the applicant communities told the court exactly how the top-down process of consultation employed by Shell and Impact, and approved by the minister, had 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,” said Wicomb.
Thandile Chinyavanhu, a climate and energy campaigner for Greenpeace Africa, said that inside and outside of the courtroom, communities affected by Shell’s behaviour had sent a clear, unified message.
“South Africa does not need Shell’s climate-hostile false promises. South Africa needs solutions, like a just transition to renewable energy.”
Ricky Stone of Cullinan & Associates said that the overly opaque nature of the mining industry had been laid bare before the high court.
“While 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,” Stone said. – Additional reporting by Lungi Langa DM/OBP