The first interdict application – Major blow for environmental groups as interdict application rejected

The Applicants: Greenpeace Africa, Natural Justice, Kei Mouth Ski Boat Club, Border Deep Sea Angling Association 

The Respondents: Shell; the Minister of Mineral Resources and Energy; the Minister of Forestry, Fisheries, and the Environment

On 29 November 2021, Greenpeace Africa in collaboration with partner organisations Natural Justice, Kei Mouth Ski Boat Club, and Border Deep Sea Angling Association, filed an urgent interim interdict application against Shell’s proposed seismic blasting activities through Cullinan and Associates.

Summary of grounds

Our view is that the commencement of the seismic exploration activities are prima facie unlawful until Shell has applied for, and obtained, the necessary Environmental Authorisation in terms of the National Environmental Management Act (NEMA). We also believe that 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.

Outcome

On 03 December 2021, Acting Justice Govindjee delivered his judgment, and the urgent interim interdict application was rejected. He argued that the applicants had not succeeded in convincing him of the irreparable harm that would come from the seismic blasting activities planned by Shell. Costs were awarded against the applicants, meaning they were ordered by the court to pay the legal ees of the respondents.


The second interdict application – Major victory for Wild Coast Communities as interim application granted

Applicants: Sustaining the Wild Coast (SWC), Dwesa-Cwebe Communal Property Association, fishermen – Ntsindiso Nongcavu (Port St Johns), Sazise Maxwell Pekayo and Cameron Thorpe (Kei Mouth) – Amadiba traditional leader and healer Mashona Wetu Dlamini and All Rise Attorneys for Climate and Environmental Justice

The applicants applied for an urgent interdict against Shell’s seismic survey off the Wild Coast on 02 December 2022. The matter was heard on 14 December. Greenpeace Africa was not an applicant in this separate interdict application, but we supported the application as friends of the court.

Summary of Grounds

Shell maintains that it conducted a thorough stakeholder consultation process which included interactions with people living on the Wild Coast. However, the applicants disagreed: none of them were reached for consultation. On these grounds, Shell’s proposed seismic blasting off the Wild Coast is unlawful. 

Outcome

On 28 December 2022, Shell was ordered to immediately cease all seismic blasting activity off the Wild Coast. Costs were awarded against the Respondents, meaning they were ordered by the courts to pay the legal fees of the Applicants (the Wild Coast Communities). The Judge concluded that Shell had not meaningfully consulted with local communities. Shell attempted to appeal this judgment, but their attempts to do so were rejected by the court, which means the interdict remains in place.


What the win means for seismic blasting and oil extraction 

The granting of the interdict prevents Shell from conducting any further seismic blasting activity off the Wild Coast until a substantive hearing can take place. This victory sets a precedent for fossil fuel companies in South Africa: they cannot conduct their extractive and polluting business without meaningfully engaging with the voices of communities who will be impacted by their activities. It also sets the bar for such consultations very high: it is not enough to post some ads in some newspapers, in languages inaccessible to local people – which is exactly what Shell did. Meaningful consultation means much more than this. 

Whats next?

In the first interdict hearing, the judge awarded costs against us, which means we are ordered by the court to pay the legal fees of the respondents (Shell et al.). Our most immediate next step is to appeal this decision – we were acting in the public interest, and do not believe that costs should have been awarded against us. 

Greenpeace Africa has formally joined with the Wild Coast Communities to challenge Shell’s oil exploration right. Blasting in the Wild Coast was one small aspect of this; we want to challenge their rights to do any oil extraction in South Africa at all. 

What are we crowdfunding for now?

We are now crowdfunding for the future legal costs of challenging Shell’s exploration licence in South Africa. All money raised through our crowdfunding efforts will go directly to the legal case.

Credits: Desiree Laverne

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