Picture: Leon Lestrade/African News Agency (ANA) Archives
On November 28 in the Gqeberha High Court, the Minister of Mineral Resources and Energy Gwede Mantashe, Impact Africa and Shell (the appellants) will argue why they should be granted leave to appeal against the Makhanda High Court judgment of September 1, which found that the authorisation by Mantashe to allow Shell to conduct seismic surveys off the ecologically sensitive Wild Coast was unlawful.
The application for leave to appeal will be challenged by coastal communities and fishers (including the Amadiba and Dwesa-Cwebe communities and small-scale fishers from Hobeni, Port St Johns and the Kei Mouth), Sustaining the Wild Coast, All Rise, Natural Justice and Greenpeace Africa, represented by the Legal Resources Centre, Richard Spoor Attorneys and Cullinan & Associates.
On September 1, the Makhanda High Court handed down judgment in part B of the legal challenge to Shell’s seismic surveys off the Wild Coast, which put a stop to the planned surveys.
The court found that the process through which the decision to grant an exploration right was made, was procedurally unfair on several grounds including failure to consider the communities’ spiritual and cultural rights, their right to food, the potential climate change implications, and more.
The ruling, which caught international attention, was considered a huge victory for the communities along the Wild Coast, their civil society partners, and the planet.
The authorisation for the exploration right was granted by Mantashe on the basis of an Environmental Management Programme (EMPr) developed by Impact Africa in 2013 in terms of the Mineral and Petroleum Resources Development Act (MPRDA).
Impact Africa did not undertake an environmental impact assessment or obtain an environmental authorisation in terms of the National Environmental Management Act (Nema) before it commenced the survey.
The decision to provide authorisation was set aside as there was no consultation with the affected communities who live on the coastline and who depend on the ocean to sustain their livelihoods. Further, the court held that consultation with traditional leaders, and not with wider communities, was insufficient to be considered meaningful engagement.
Additional grounds for the court’s decision included Mantashe’s failure to take into account climate change and the desirability for oil and gas development in South Africa, given the climate emergency we find ourselves in.
The court further held that Mantashe’s failure to consider the Integrated Coastal Management Act, climate change and the cultural rights and spiritual beliefs of the affected coastal communities, constituted a failure by the Mantashe to consider all relevant factors when making the decision to provide authorisation.
Shell, Impact Africa and Mantashe are applying for leave to appeal against the entire judgment with the appeal being heard in the Gqeberha High Court on November 28.
In order for leave to appeal to be granted, an appellant needs to satisfy the court that there is a reasonable chance of success or that there is a compelling reason why the appeal should be heard at all.
Shell, Impact and Mantashe are seeking to appeal against the judgment on the grounds that the communities and their partners failed to exhaust other internal remedies, which would have required lodging an appeal with Mantashe, as is required under the Promotion of Administrative Justice Act (Paja), prior to approaching a court.
They claim that the applicants were unduly delayed in bringing the application for review, and were therefore out of time in terms of Paja, as well as arguing that the consultation process carried out was not flawed and complied with the requirements under the Mineral and Petroleum Resources Development Act.
Finally, the parties will argue that the court erred in its findings in taking into account considerations such as the precautionary principle and that the harm to the applicants’ spiritual and cultural rights are of no bearing in a review.
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