Makhanda High Court to hear urgent interdict against Shell’s seismic survey

Environmental activists protest against Shell outside the Petroleum Agency of South Africa in Cape Town, on 26 November 2021. Environmentalists across the country are outraged over Shell’s planned survey off South Africa’s pristine Wild Coast. (Photo: EPA-EFE / Nic Bothma)

By Tembile Sgqolana

1 Dec 2021

Four environmental and human rights organisations have filed an urgent interdict to stop Shell from carrying out its ocean seismic survey, while Eastern Cape Premier Oscar Mabuyane has supported it.

With the Amazon Warrior survey ship already in the Eastern Cape on Wednesday for a seismic survey off the Wild Coast, the Border Deep Sea Angling Association (BDSAA), Kei Mouth Ski Boat Club (KMSBC), Natural Justice and Greenpeace Africa filed an urgent interim interdict in the Makhanda High Court against Shell to prevent it from beginning the survey, aimed at exploring for oil and gas.

On Monday, the environmental law firm Cullinan & Associates, representing the four environmental and human rights organisations, delivered the certificate of urgency to the Court Registrar. Acting Judge Avinash Govindjee saw the matter as urgent.

Govindjee directed the applicants to serve and file papers on 29 November, with any notice of opposition and answering affidavits to be filed by 4pm on Tuesday, 30 November.

“Replying papers and heads of arguments to be filed by 13:00 on 1 December and the rule nisi to be argued virtually at 14:00 on 1 December,” said Govindjee.

The papers filed at the Makhanda High Court were served on Shell’s attorneys electronically on Monday.

According to Natural Justice’s statement, 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 promoting catastrophic climate change, especially in light of a Dutch court ruling ordering Shell to reduce its greenhouse gas emissions by 47% within this decade.

In a founding affidavit by Tyrone Gower, president of BDSAA, the group argued that the commencement of the seismic exploration activities is prima facie unlawful until Shell has applied for, and obtained, the necessary environmental authorisation in terms of the National Environmental Management Act (Nema).

“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 (ER).

“Shell and Impact Africa should not be permitted to carry out operations under the ER and its renewals before the periods for appeal have passed and any appeals have been determined. That cannot occur less than 30 days after the prescribed notice is given. Failure to give notice is a sufficient basis for setting aside the impugned administrative acts,” read the affidavit.

shell survey amazon warrior wild coast Environmental activists protest against Shell on 26 November 2021 outside the Petroleum Agency of South Africa in Cape Town. Environmentalists across the country are outraged over Shell’s planned survey off South Africa’s pristine Wild Coast. (Photo: EPA-EFE / Nic Bothma)

The affidavit states the explosions or discharges of the planned seismic survey are sufficiently strong to cause major disruption or damage to a large range of animals, including various fish species, marine mammals such as whales and dolphins, turtles, crustaceans and other creatures.

“They are also expected to kill the eggs of fish and squid that are carried southwards by the Mozambique Current through the intended survey area. The surveys are also proposed to be undertaken in extremely close proximity to several Marine Protected Areas (MPAs) formally declared under the National Environmental Management: Protected Areas Act 57 of 2003, and overlap with the Protea Banks and Sardine Route Ecologically and Biologically Significant Areas,” read the affidavit.

According to the affidavit, the survey area is in proximity to several Critical Biodiversity Areas.

“Shell and Impact Africa claim to be entitled to undertake the survey on the basis of the ER. We contend that the ER was awarded unlawfully in breach of, inter alia, the fundamental constitutionally guaranteed rights of BDSAA and KMSBC and the public in general. The ER was renewed twice and both renewals were unlawful and invalid,” read the affidavit.

“Shell is now required to obtain... an environmental authorisation before it may lawfully commence exploration activities.”

The affidavit states that it is clear that Shell and Impact Africa are determined to carry out the survey operations regardless.

The affidavit stated that the applicants have been left with no means of preventing the survey from being undertaken from 1 December other than bringing the urgent application.

Pooven Moodley, executive director at Natural Justice, said the planned survey “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”.

Happy Khambule, senior climate and energy campaign manager for Greenpeace Africa, said the planned survey threatened 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,” said Khambule.

However, Eastern Cape Premier Oscar Mabuyane said on Tuesday the provincial government had not yet seen any problem with the planned seismic survey.

“It is still at its early stage. It is still just a mere exploration. It may be a seismic exploration, but remains an exploration and we believe that it must be done in a context of sustainable development. We want to support what Shell is trying to initiate there as the province,” he said.

“We can’t remain where we are forever. Along that coastline there are people who are so poor, and those who pretend as if they represent their interests know it.”

He said Shell had been given a permit and that a process had been followed.

“Let’s monitor it, let’s make sure that it complies fully with environmental management standards.” DM/OBP

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