13 December 2022, Gqeberha: This morning, the Eastern Cape High Court handed down judgment granting Shell, Impact Africa and the Minister of Mineral Resources and Energy leave to appeal to the Supreme Court of Appeal.
This follows the leave to appeal hearing which took place on 28 November 2022 in which they appealed the historic judgment of the Makhanda High Court, handed down on 1 September 2022, which found that the exploration right granted by the Minister under the Mineral and Petroleum Resources Development Act (MPRDA) to allow Shell to conduct seismic surveys off the ecologically sensitive Wild Coast of South Africa, was unlawful.
In its judgment today, the court found that, while it could see no prospects of success for the appeal, it would grant leave to appeal because issues of such public importance should be heard before the higher courts. It also reiterated that the leave to appeal is granted for the entire judgment.
The applicants who took the matter to court, including Wild Coast communities, Sustaining the Wild Coast, All Rise, Natural Justice and Greenpeace Africa, remain confident in a higher court ruling in their favour.
In the Makhanda High Court, the main issues that we argued related to an exploration right granted to Impact Africa and Shell which would allow them to conduct seismic testing off the coastline – which the applicants argued was unlawful because of lack of meaningful public participation, lack of consideration of the cultural rights of communities and because an environmental impact assessment should have been conducted.
On appeal, Shell, Impact Africa and the Minister of Mineral Resources brought two preliminary issues: the delay by the communities and NGO partners in the bringing of the review and whether the communities and the NGO partners should have pursued an internal appeal to the Minister prior to approaching the Court – as is required by the Promotion of Administrative Justice Act (PAJA). They also argued that they followed the letter of the law in consulting with the public, and cannot be held to higher standards than that.
The court found that both applications “lacked reasonable prospects of success”. However, the court agreed with the parties that the significant importance of the matter justified a higher court hearing the issues.
The communities and NGO partners also sought leave to cross-appeal the court’s decision not to consider whether Shell and Impact Africa required an Environmental Authorisation prior to commencing their seismic survey. This is because a declarator will provide clarity on the scope and nature of the obligations under the National Environmental Management Act (NEMA), as well as the MPRDA, which will then give effect to Section 24 of the Constitution.
The cross-appeal has also been granted.
We expect the Supreme Court of Appeal to grant us a court date next year in which the arguments will be placed before them.
“Shell is trying to appeal against the planet and humanity, as if the environment and the people who safeguard it, have no right to be protected. The climate crisis is of great importance, they cannot make excuses any longer. We are ready to continue this fight.” Nonhle Mbuthuma, Amadiba Crisis Committee
“This case is a matter of life and death for coastal communities whose livelihoods depend on the ocean. This is also about a global fight against climate change. We cannot allow profiteering to drive us and our plant to extinction.” Sinegugu Zukulu, Sustaining the Wild Coast.
“We are not surprised by the outcome today – the court granted the leave to appeal on the basis of public importance. This case is critical for setting important judicial precedents relating to oil and gas exploration. This case deals with what constitutes meaningful public participation, and the importance of considering impacts of oil and gas developments relating to climate change, cultural heritage, and the interests of the whole marine community. We are strong on the merits and welcome the Supreme Court of Appeal’s consideration of this matter.” Melissa Groenink-Groves, Attorney at Natural Justice
“Greenpeace Africa is not deterred by the court’s decision to grant Shell leave to appeal. The outcome of this case will have far-reaching impacts on the livelihoods of local communities and the survival of biodiverse ecosystems, and we will continue to support the Wild Coast communities’ resistance against Shell and pursue the legal avenue to stop Shell. We must do everything we can to undo the destructive colonial legacy of extractivism, until we live in a world where people and the planet come before the profits of toxic fossil fuel companies.” Melita Steele, Greenpeace Africa Programme Director
“We are delighted that the Eastern Cape High Court has found that the appeals had no reasonable prospects of success and has only granted leave to appeal to enable the Supreme Court of Appeal to pronounce on these important issues. We are confident that the SCA will uphold the landmark judgment of the full court of the Eastern Cape High Court and establish important precedents that bind all divisions of the High Court. It is particularly important that the SCA uphold the rights of both the public, and those most directly affected, to participate in decisions regarding new fossil fuel projects and ensures that no offshore exploration or drilling is authorised in the absence of a full consideration of the climate change implications, the potential impacts on marine species and people who depend on coastal environments, and a consideration of whether or not these projects are necessary and desirable.” Cormac Cullinan, Cullinan & Associates
“Given the novelty and significance of the judgment and its extraordinary importance for communities around the country that bear the brunt of extractivism and climate change, it is in the public interest for the Supreme Court of Appeal to rule on the matter. The battle for our clients continues.” Wilmien Wicomb, Legal Resources Centre
Notes to editors:
- Judgment attached
- Read latest press release and find court papers here
- Learn more about the issues and parties in this case here
- Watch a post-judgment webinar with clients and attorneys
- For more info refer back to NJ’s factsheet
- To help fund a united legal front to protect people and the planet, donate here
- Save the Wild Coast documentary trailer to be launched in 2023.
- Counsel for Applicants 1-7: Tembeka Ngcukaitobi SC; Emma Webber; Nikki Stein. Instructing Attorneys: Legal Resources Centre and Richard Spoor Inc.
- Counsel for Applicants 8-9: Nick Ferreira and Cingashe Tabata. Instructing Attorneys: Cullinan & Associates Inc.
- Counsel for the Minister of the Department of Mineral Resources: Albert Beyleveld SC and Avian Barnett. Instructing Attorneys: State Attorney.
- Counsel for the Minister of the Department of Forestry, Fisheries and the Environment: Jennifer Williams. Instructing Attorneys: State Attorney.
- Counsel for Shell: Adrian Friedman and Sarah Pudifin-Jones. Instructing Attorneys: Shepstone & Wylie Inc.
- Counsel for Impact Africa: Chris Loxton SC, Adiel Nacerodien, Peggy Schoeman. Instructing Attorneys: Cliffe Dekker Hofmeyr Inc.
Applicants and respondents:
- SUSTAINING THE WILD COAST NPC First applicant
- MASHONA WETU DLAMINI Second applicant
- DWESA-CWEBE COMMUNAL PROPERTY ASSOCIATION Third applicant
- NTSINDISO NONGCAVU Fourth applicant
- SAZISE MAXWELL PEKAYO Fifth applicant
- CAMERON THORPE Sixth applicant
- ALL RISE ATTORNEYS FOR CLIMATE AND THE ENVIRONMENT NPC Seventh applicant
- NATURAL JUSTICE Eighth applicant
- GREENPEACE ENVIRONMENTAL ORGANISATION Ninth applicant
- MINISTER OF MINERAL RESOURCES AND ENERGY First respondent
- MINISTER OF ENVIRONMENT, FORESTRY AND FISHERIES Second respondent
- SHELL EXPLORATION AND PRODUCTION SOUTH AFRICA BV Third respondent
- IMPACT AFRICA LIMITED Fourth respondent
- BG INTERNATIONAL LIMITED Fifth respondent
For media enquiries contact:
- Sinegugu Zukulu, Sustaining the Wild Coast, [email protected] +27 72 428 5109
- Nonhle Mbuthuma, Amadiba Crisis Committee, [email protected] +27 76 359 2982
- Katherine Robinson, Natural Justice, [email protected] +27 762 276 517
- Claire Martens, Natural Justice, [email protected] +27 82 470 1187
- Thabo Ramphobole, Legal Resources Centre, [email protected] +27 68 585 2442
- Chris Vlavianos, Greenpeace Africa, [email protected] +27 798 837 036
- Annette Gibbs, Cullinan & Associates, [email protected] +27 82 467 1295