Protestors at the Waterfront waiting the arrival of the ship Amazon Warrior. They are against the planned Shell seismic survey for oil and gas in the ocean on November 21, 2021 in Cape Town, South Africa. It is reported that Shell has announced that it will carry out a three-dimensional seismic survey in search of oil and gas deposits from Morgan Bay to Port St Johns off the Wild Coast. (Brenton Geach/Gallo Images via Getty Images)
The Western Cape high court has denied an urgent court application by an Australian geoscience data supplier to reconsider an interdict temporarily halting its seismic survey for oil and gas deposits under the seabed off the West Coast.
Last Monday, Judge Daniel Thulare granted an interim-interim interdict against Searcher Seismic’s planned exploration from Cape Town to Namibia, ordering that all surveying be temporarily halted. The survey commenced on 24 January.
The interdict was granted in favour of 14 applicants, which include the Steenberg’s Cove Small-Scale Fisheries Cooperative, the Aukatowa Small-Scale Fisheries Cooperative, the Coastal Links Langebaan, civil society movement We Are South Africans and the Green Connection. They are represented by the Legal Resources Centre and Richard Spoor Attorneys.
On Wednesday, Searcher filed its answering affidavit and also launched a separate application asking the court to reconsider the interim interim interdict. Yesterday, Thulare determined the interdict remains in place, pending the outcome of the interim interdict application, which has now been set down for 24 February.
In its court papers, Searcher’s legal counsel — Jeremy Gauntlett, Adrian Friedman and Lauren Crow — argued that as Searcher’s answering affidavit has now been filed, and in light of the new facts set out in the answering affidavit, the order granted on 7 February should be revisited.
From the outset, Searcher adopted the position that it would be “simply impossible” to comply with the “punitive and unworkable timetable” reflected in the notice of motion. “The founding papers in the application were approximately 700 pages and contained extensive expert evidence (eight substantive reports). The respondents were given six calendar days (just four court days) to file their answering affidavits.”
They said Searcher had been “absent” in court last Monday because its answer to a big application that had taken effectively three weeks to launch was still being finalised. It was tendered to be filed in just 48 hours.
“The presiding judge ought, with respect, to have taken into account the immense volume of the founding papers and the fact that fairness required Searcher to be given a proper opportunity to respond. In this regard, a practical suggestion — that is, to stand the matter down for a few days — was offered and inexplicably rejected.”
Searcher was “deprived … of being able to be heard substantively in argument on its defence to interim relief”, it was argued.
Searcher ‘not ambushed’
In their papers, counsel for the applicants — Michael Bishop, Jatheen Bhima and Tauriq Moosa — countered that Searcher knew from 13 January that they intended to bring the interdict “if it refused to postpone its seismic blasting”.
The interdict application was launched on 21 January and set down for 7 February. “Searcher was required to file its answering affidavit by 27 January. Searcher chose not to file an answering affidavit by that date. It also chose not to file an answering affidavit the following week,” they said.
Even after Searcher knew on 4 February that the matter would be heard by Judge Thulare, it chose not to file its answering papers. “It unilaterally decided it would file its answering affidavit on its own timetable. That is its choice. But it then accepted the risk that the matter would be determined on the date in the notice of motion without its evidence before the court.
“Searcher now asks this court to ‘reconsider’ the application. But there is no basis for the reconsideration. Reconsideration occurs when an order is granted in a party’s absence. But Searcher was literally present in court. Senior counsel made submissions on its behalf.”
There was “nothing unfair” in the process the applicants followed. “Searcher was not ambushed or taken by surprise. It chose to ignore the timeline for the hearing, even when it knew that the matter would be heard on 7 February,” they argued
Financial harm
Searcher’s counsel “strongly disputed” that the consultation and environmental management programme (EMP) processes were inadequate. “Numerous iterations of community consultation are reflected on the papers, resulting in the survey area being decreased and moved further offshore. In addition … the communities have failed to show a reasonable apprehension of any harm — let alone irreparable harm — arising from the survey.”
The financial prejudice that Searcher stands to suffer should the interdict be granted, and as a result of the interim interdict granted on 7 February, is “catastrophic” and in its effect, likely to be final. Searcher holds a reconnaissance permit, which expires on 9 November this year.
Given the significant financial loss that Searcher stands to incur if the survey is not able to continue, it will not be financially feasible for Searcher to apply for a new permit. “This is the only opportunity that Searcher has to conduct this survey.”
Balance of convenience
Counsel for the West Coast fishers said they will suffer significant and irreversible prejudice, including irreparable harm to marine resources with “knock-on effects” for their livelihoods and culture. “This included the failure to consult them before a decision was taken to grant the permit — a wrong that can never be undone if they are consulted only after the survey is complete.”
Searcher argued that the delay will cost it money, and that it may decide not to proceed with the survey.
“But it decided not to provide those very simple facts to Judge Thulare. Searcher now admits that the [seismic vessel] Pioneer is in international waters, yet it continues to be coy about what it is doing there. It refuses to tell the communities or this court whether the Pioneer is continuing to survey, how long it will continue to do so in international waters, or how that relates to the survey in South African waters. The obvious deduction is that the Pioneer is continuing to survey. That fatally undermines Searcher’s claim of prejudice.”
The counsel cited the Eastern Cape high court’s recent ruling in the “almost identical” Sustaining the Wild Coast case: “The anticipated financial loss to Shell and Impact Africa cannot justify the infringement of the applicants’ constitutional rights. The breach of those Constitutional rights threaten the livelihoods and well-being of the applicants as well as their cultural practices and spiritual beliefs.”
Extensive undertaking
Searcher’s counsel said its environmental management programme was an extensive undertaking, prepared by world class experts, which identified potential environmental harm which may be caused by the survey and ways to mitigate it. “This is precisely what is required by the National Environmental Management Act and the MPRDA [Mineral and Petroleum Resources Development Act ].”
To cater specifically for the concerns raised by the applicants about the viability of their fishing of snoek, the survey plan had been altered. “Under the initial plan, Searcher would have conducted the survey no closer than 20km from the shoreline. Now, it has undertaken not to come closer than 58.5km, which is very far from the furthest point at which the applicants say they fish for snoek.”
The applicants’ counsel said Searcher appears to argue that its environmental management programme “constitutes the environmental authorisation … There is a clear obligation on Searcher to obtain proper environmental authorisation prior to conducting its seismic blasting.”
In a media statement, Searcher said the applicants’ concerns are more than adequately addressed in its answering affidavit and the expert affidavits, “all of which confirms that there is no evidence to support the allegation that seismic surveys cause irreparable harm to the environment”.
Counsel for the applicants said the experts Searcher relied on “are not independent and have ties to the minerals and petroleum industry”.
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