High court dismisses Shell’s bid to appeal interdict against Wild Coast seismic blasting

Protestors at the Waterfront waiting the arrival of the Amazon Warrior . They are against the planned Shell seismic survey for oil and gas in the ocean on November 21, 2021 in Cape Town, South Africa. It is reported that Shell has announced that it will carry out a three-dimensional seismic survey in search of oil and gas deposits from Morgan Bay to Port St Johns off the Wild Coast. (Photo by Gallo Images/Brenton Geach)

By Tembile Sgqolana

17 Feb 2022

The Makhanda High Court has dismissed Minister Gwede Mantashe and Shell’s application for a leave to appeal its December decision to grant an interim interdict against the company’s seismic survey in the Wild Coast.

Makhanda High Court Judge Gerald Bloem has dismissed Shell’s application, with costs, for leave to appeal against the interdict obtained on 28 December 2021 by the communities against seismic blasting off the Wild Coast.

The dismissal means the interdict remains in place pending an application by the Dwesa-Cwebe, Amadiba and Port St Johns communities and environmental organisations to set aside Shell’s exploration right in its entirety, which will be heard on 30 May 2022.

The victory on 28 December came more than two weeks after another court application to stop the seismic surveys failed in the same court.

In the first application, struck down on 23 December, Judge Avinash Govindjee ruled that the applicants – environmental and human rights organisations the Border Deep Sea Angling Association, the Kei Mouth Ski Boat Club, Greenpeace Africa and Natural Justice – had failed to prove their allegation that the survey would cause irreparable harm to communities and the environment. The court found that their evidence was speculative and that the mitigation measures proposed by Shell meant that the seismic survey activities were “low-risk”.

Mineral Resources and Energy Minister Gwede Mantashe and Shell sought leave to appeal the interim interdict granted on 28 December against Shell.

In handing down the judgment, Bloem said the effect of the interim order is that Shell cannot undertake a seismic survey under the above exploration right pending the finalisation of the relief sought.

Hundreds of people gather in Muizenberg on 5 December 2021 to protest against the seismic survey commissioned Shell. (Photo: Gallo Images / Brenton Geach)

“The hearing of the main application has been set down for 30 May 2022. The court hearing the main application will either dismiss it or grant the relief sought. If the main application is dismissed, the interim order will have no effect thereafter. Shell would then be entitled to undertake a seismic survey under the exploration right,” he said.

Similarly, if the relief sought was granted, the effect thereof would be that Shell would be unable to place any reliance on the exploration right.

“The inability to give effect to the exploration right would, under those circumstances, be the result of the judgment in the main application and not as a result of the interim judgment. Either way, the interim order has effect only until delivery of the judgment in the main application. In other words, the interim order will be discharged as soon as the judgment in the main application has been delivered,” Bloem said.

He said Shell acknowledges that the environmental management programme provides that the window to undertake a seismic survey is between 1 December and 31 May of every year until 10 August 2023.

“At the hearing of the application for leave to appeal, Mr Motau, counsel for Shell who appeared with Mr Friedman and Ms Pudifin-Jones, informed the court that Shell will not undertake a seismic survey under the above exploration right before 31 May 2022, even if allowed to do so,” said Bloem.

He said Shell will only do so during the period 1 December 2022 to 31 May 2023, once again, if allowed to do so.

“It means that, even if leave to appeal be granted and the main application be dismissed, Shell will not conduct a seismic survey before the end of November 2022, approximately then months away. The refusal of the application for leave to appeal will accordingly not have any effect on Shell until the end of November 2022,” he said.

Bloem said that in the circumstances, an appeal against the interim judgment will have no practical effect, certainly not before 1 December 2022.

“The application for leave to appeal should be dismissed on that ground alone. Furthermore, the interim order did not determine any of the issues which will be determined in the main application. Even if it could be said that the court made a finding or findings in the interim judgment which may become relevant in the main application, those findings are not final,” he said.

Bloem said the court considering the main application would be entitled to revisit those findings and make its own finding thereon, based on the facts before it.

“I have indicated in the interim judgment that the applicants have reasonable prospects of success in the main application. I have also considered that the grant of leave to appeal would lead to a piecemeal adjudication of the litigation in the application,” he said.

Bloem said he is of the opinion that on the merits, the appeal would have no reasonable prospects of success and in respect of the above circumstances and factors.

Jacqueline Rukanda, an attorney at Natural Justice, said the dismissal is another victory for the local communities directly affected by seismic surveys along the Wild Coast.

Protesters at Cape Town's V&A Waterfront demonstrate against Shell's seismic survey for oil and gas on 21 November 2021. (Photo: Gallo Images / Brenton Geach)

“This confirms that Shell is still interdicted until the substantive issues are fully dealt with in a review hearing. Also, it preserves the rights of the communities that Natural Justice works with,” Rukanda said.

Katherine Robinson, head of campaigns at Natural Justice, said power to the local communities of the Wild Coast and attorneys who successfully defended the interdict, and who continue to defend climate justice.

“The judgment is really hopeful and sends a strong message to other companies attempting to steam ahead while their environmental compliance with environmental law is under scrutiny. Indeed, Judge Bloem was acting in the interests of justice – he said that the applicants have reasonable prospects of success in the main application, while making it clear that Shell has not provided any compelling reason why the appeal should be heard,” she said.

The Amadiba Crisis Committee’s Nonhle Mbuthuma said they are happy with the court decision since it shows that what they have been saying is correct.

“We don’t blame the oil and gas company for taking shortcuts to maximise profits for the rich, or for not checking what the law and the constitution of a country says about the rights of the people. We say there are other ways to boost the economy rather than damaging the environment and the court has proven that to be true,” she said.

She said Shell has lost a lot of money, all because of the government.

“Shell’s loss is due to the government not listening to the people,” she said. DM/OBP

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