In 2021, thousands of South Africans across the country sent a clear message to Shell and the Department of Mineral Resources and Energy: our oceans are not for sale! After joining forces with our partners to get Shell out of the Wild Coast, we prepared to see them in court, where we challenged Shell’s right to do anything in South Africa’s waters in the first place.
On 28 November 2022, Greenpeace Africa, Wild Coast communities, Sustaining the Wild Coast, All Rise, and Natural Justice, appeared in the Gqeberha High Court to argue whether Shell should be granted leave to appeal the historic judgment of the Makhanda High Court, which was handed down on 1 September 2022. The Eastern Cape High Court reserved judgment on the leave to appeal application from the Minister of Mineral Resources and Energy, Impact Africa and Shell.
Here’s how we got there.
Case 1: First urgent interim interdict application against Shell
The Applicants: Greenpeace Africa, Natural Justice, Kei Mouth Ski Boat Club, and Border Deep Sea Angling Association
The Respondents: Shell; the Minister of Mineral Resources and Energy; the Minister of Forestry, Fisheries, and the Environment
On 30 November 2021, following weeks of build-up of public rage against climate criminal Shell, Greenpeace Africa partnered with Natural Justice, Kei Mouth Ski Boat Club, and Border Deep Sea Angling Association to file papers for an urgent interim-interim interdict application to stop Shell from proceeding with their proposed seismic blasting off the Wild Coast. We filed these papers on the grounds of irreparable harm that would be caused to marine life as a result of the blasting, and asked for an interdict to be put in place until a full hearing can take place.
Unfortunately, we were unsuccessful, and the judge was not convinced that there would be severe harm to the marine life in the area. Our application for an urgent interim-interim interdict was rejected on 3 December 2021. It was a massive blow to civil society, especially considering the judge awarded costs against us, meaning the court ordered us to pay Shell’s legal fees in addition to our own.
Case 2. Second urgent interim interdict application against Shell
The 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
After the first unsuccessful interdict application, a second application for an urgent interim interdict was submitted. Greenpeace Africa supported the case financially and as friends of the court. This application argued that Shell does not have the necessary environmental authorisation in terms of the National Environmental Management Act (NEMA) to lawfully undertake seismic exploration activities in the area. This application also argued that there was no meaningful consultation with communities who live in the Wild Coast, and that the seismic blasting is an infringement of their constitutional rights. The court proceedings took place on 17 December 2021.
On 28 December 2021, South Africa celebrated the news that this application was successful. The interdict was granted, and Shell was ordered to immediately halt all seismic blasting activity off the Wild Coast, pending a full hearing which is due to take place next week (more on that below).
Case 3: Greenpeace Africa appeals the cost order
The Applicants: Greenpeace Africa, Natural Justice, Kei Mouth Ski Boat Club, and Border Deep Sea Angling Association
On 21 December 2021, the four environmental and human rights organisations who filed a first urgent interim-interim interdict against Shell filed an application for leave to appeal the judgement made against them on 3 December 2021. We sought to appeal the judgement as well as the cost order against us.
The hearing took place on 19 May 2022. Unsurprisingly, Shell argued that the cost order should remain in place. The judge reserved his judgment. At the time of writing, we are still awaiting the outcome of the hearing.
The Applicants: Greenpeace Africa, Natural Justice, 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
Due to similarities between the first two cases, Greenpeace Africa and Natural Justice submitted an application to join with the applicants from the second case (Sustaining The Wild Coast and others).
Next week, from 30 May to 1 June 2022, Greenpeace Africa and our partners will be in court for the full hearing challenging Shell’s exploration right. We are challenging the legality of the fact that Shell was given the licence to conduct seismic blasting off the Wild Coast in the first place, on these grounds:
- Lawfulness of conducting a seismic survey without an environmental authorisation
- Violations of communities’ constitutional rights
- Inadequate public participation
- Failure to consider climate change and the interests of the whole community
- Procedural unfairness
You can find more detailed information about our grounds for appeal here.
We present a united front against Shell, a movement of people with one voice, who are taking action to protect the livelihoods of the communities of the Wild Coast, and the lives of marine animals who live in those waters.
The science is clear: we are in a climate emergency. There is no more room for fossil fuels or fossil fools in the future. The best and most immediate solution to South Africa’s problems do not lie underground: they are above us, all around us, in the form of renewable energy.
Greenpeace Africa encourages you to support our cause, and help us to pay our legal fees for the court proceedings. Any donation, regardless of how big or small, helps. Donate here.
On Tuesday 31 May, the hearing was completed, and judgment was reserved. This means that the bench will consider the arguments laid out before them and will take some time to make a decision. This could take anywhere from a few weeks to 3 months.
On 1 September 2022, the High Court in Makhanda ruled that Shell’s exploration right to conduct seismic surveys on the Wild Coast of South Africa was granted unlawfully and, therefore set aside.
Latest update: On 28 November 2022, Greenpeace Africa, Wild Coast communities, Sustaining the Wild Coast, All Rise, and Natural Justice, appeared in the Gqeberha High Court to argue whether Shell should be granted leave to appeal the historic judgment of the Makhanda High Court, which was handed down on 1 September 2022. The Eastern Cape High Court reserved judgment on the leave to appeal application from the Minister of Mineral Resources and Energy, Impact Africa and Shell.
Discussion
We need to help support and actively participate, to save the remnant of what is left of our environment, our Flora and Forna. That is constantly destroyed and polluted to the detriment of our environment and Our lives, thus contributing to the climate pandemic. I'm the name of development, growing economy and job creation etc. Much against the very same pronouncements only to Benefit Conglomerates and certain individuals, as Zondo commission gave evidence of what actually happens, behind terms of Job creation, growing economy etc. When it is exploitation of the land and its people. Save the environment and its people.
Thank you for your comment. Indeed, we need to defend the environment and its inhabitants before profits.
We need to help support and actively participate in initiatives, to save the remnant of what is left of our environment, our Flora and Forna. That is constantly being destroyed and polluted to the detriment of our environment and Our lives, thus contributing to the climate change pandemic. In the name of development, growing economy and job creation etc. Much against the very same pronouncements only to Benefit Conglomerates and certain individuals, as Zondo commission gave evidence of what actually happens, behind terms of Job creation, growing economy etc. When it is exploitation of the land and its people. Save the environment and its people.