See you in court: Activists take second stab at Shell interdict application

The Makhanda High Court has been a hive of activity this December as environmental activists take their fight against Shell’s seismic survey on the Wild Coast to court.

Last week on Friday, Judge Gerald Bloem heard an urgent application by the Legal Resources Centre (LRC) and Richard Spoor Attorneys on behalf of the Amadiba, Dwesa-Cwebe, Port Saint Johns and Kei Mouth communities.

After seven hours of hard-hitting legal debate, Bloem adjourned the hearing and reserved his judgment until further notice.

This application follows an earlier urgent interdict application, brought by the Border Deep Sea Angling Association, the Kei Mouth Ski Boat Club, Natural Justice and Greenpeace Africa, which sought to stop Shell from commencing seismic blasting off the Wild Coast. Acting Judge Avinash Govindjee dismissed this application on 3 December 2021, finding that there was no reasonable apprehension that Shell’s seismic blasting would cause irreparable harm.

On Monday, 20 December, the environmental and human rights organisations filed an application for leave to appeal Govindjee’s judgment.

In his ruling, Govindjee dismissed the application, until the applicants could return to court with more expert evidence of the harm that would be caused, and to argue that Shell did not have the necessary environmental authorisation under the National Environmental Management Act (NEMA). 

Govindjee also ordered the applicants to pay the legal costs of Shell and the Minister of Minerals and Energy.

According to a statement by the applicants, they are appealing because this is an issue of substantial public importance and they believe that there are reasonable prospects of an appeal court finding that Shell did not undertake the consultations which its own environmental management programme (EMPr) obliged it to take, that the risks of harm to marine life are real and not speculative, and that there was a reasonable apprehension that the blasting would do irreparable harm if the interim interdict was not granted. 

“The court should have issued a rule nisi directing the parties to return to court for a more in-depth hearing, should have granted an interim interim interdict to stop Shell starting the seismic survey before that hearing, and should not have made a punitive costs order when they were acting in the public interest,”  read the statement, which also noted that Shell has indicated that it will oppose the application for leave to appeal.

“The application will be made to Judge Govindjee, who will have to decide if the applicants are given leave to appeal. If the judge grants the applicants leave to appeal, it will most likely be to a full bench of the Eastern Cape High Court. The date for the initial appeal application hearing has not yet been set but is likely to be in early 2022,” the statement said, adding: “The harm that Shell’s seismic survey is likely to cause to marine life and coastal communities was also central to the hearing on Friday, 17 December 2021 before Justice Bloem of the Eastern Cape High Court. Various coastal communities along the Wild Coast and supporting NGOs, had also applied for an urgent interdict to prevent Shell continuing with the seismic blasting which it started on 8 December.”

On Friday, Tembeka Ngcukaitobi SC told the court that the communities were not consulted at all during the preparation and approval of the EMPr and presented substantial expert evidence of the harm that seismic blasting causes. 

 “The idea that there is another way of resolving this is not borne out of the facts. The only way to resolve this is to come to court and obtain an interdict,” said Ngcukaitobi .

He argued:

• That numerous leading experts confirm that the blasting will cause significant and irreparable harm to marine life in the affected area and will have repercussions on the livelihoods, constitutional rights and customary rights (including customary fishing rights) of coastal communities. He noted that only Shell’s chairperson disputed these experts;


• Shell failed to consult with affected communities despite the devastating impact that the seismic blasting will have; 


• Shell’s blasting is illegal because it did not obtain an environmental authorisation under the NEMA. He argued that Shell’s claim that the Mineral and Petroleum Resources Development Act (MPRDA) excludes the application of the NEMA is contrived. Moreover, he noted the EMPr itself was defective because communities weren’t consulted. These omissions render Shell’s seismic blasting unlawful and unconstitutional.