The Makhanda high court on Tuesday granted an urgent interdict halting further seismic exploration by Shell on the Wild Coast because the oil giant had flouted the constitutional rights of affected indigenous communities.
The court ordered Mineral Resources Minister Gwede Mantashe and BG International, a part of Shell and the fifth respondent, to pay the costs of the applicants, a coalition of Wild Coast communities that argued that blasting would cause significant, lasting damage to marine life and impact their livelihoods and customary and constitutional rights.
The Dwesa-Cwebe Communal Property Association, Sustaining the Wild Coast NPC, representatives of the Kei Mouth and Port St Johns fishing communities and traditional healer Mashona Dlamini, represented by Tembeka Ngcukaitobi, had told the court they were not consulted prior to the approval of the environmental management programme report.
This omission, along with the fact that Shell did not secure authorisation under the National Environmental Management Act (Nema), rendered its seismic exploration for oil on the pristine stretch of coast unlawful, Ngcukaitobi contended.
Shell had argued that nothing prevented the communities, villagers and fishermen who thought they might be affected from registering as interested persons after newspaper advertisements for comment were placed. It rejected their claims that blasting would cause irreparable harm to the environment as speculation, and minimised those that their cultural rights would be impacted and spiritual harm be suffered as “merely subjective”.
Sinegugu Zukulu, a member of the Amadiba community who deposed the applicants’ founding affidavit, submitted that the impacted land near Dangeni was central to the community’s identity as their ancestors fought for it and it sustained them to this day.
Moreover, they saw themselves as the environmental custodians of the area, using “practices handed down to us over generations”.
In pleadings, Ngcukaitobi said the loss of constitutional rights the community would suffer could not be measured in monetary terms. And he said Shell’s insistence that it had regulatory approval because the Mineral and Petroleum Resources Development Act (MPRDA) excluded application of the Nema was incorrect.
Judge Gerald Bloem held that it was a simple fact that people who were not aware of the process could not be expected to register to have their views heard, noting that the advertisements ran only in the print media and in English and Afrikaans.
He found that Shell’s stakeholder analysis was substantially flawed because it did not draw in the subsistence and small-scale fishers along the coastline where the blasting would be carried out, though it plainly had a duty to do so.
Bloem said while it was perhaps understandable that the local communities’ cultural practices and spiritual relationship with the sea may be “foreign” to outsiders, the fact was that these were protected under law.
“We must accept that those practices and beliefs exist … in terms of the Constitution those beliefs must be respected,” he said, adding that the court had a duty to step in and protect those whose rights were offended and the environment.
“Failure to protect the applicants against unlawfulness will offend the rule of law.”
Bloem said whether Shell needed environmental authorisation under the Nema, was a difficult legal issue the court should settle when it hears part B of the application, in which the communities seek a permanent interdict against further seismic blasting.
“Although I am of a view that the applicants have prospects of success in that regard, it is a matter that should rather be considered by the court which will determine the relief sought in part B of the notice of motion,” Bloem said.
He found that there was no reason not to accept the testimony of 10 experts who submitted that there is a real threat that marine life would be irreparably harmed by Shell’s seismic survey. The company’s denial in this regard could not be sustained. It had, he noted, failed to cite any expert advice of its own to counter the concerns.
Shell had argued that an interdict in favour of the communities would cause it financial loss in the order of R1-billion. But the court held that the company should not be allowed to use the consequences of its own failure to consult as a reason why an interdict should not follow.
Bloem was not convinced by Shell’s alternative remedy that the applicants could have approached Mantashe in terms of the MPRDA to revoke its exploration rights. It was not only a time-consuming route, he said, but would see them seeking recourse from “the same minister” who reportedly tweeted that the government considered objections to the survey “as apartheid and colonialism of a special type”.
Mantashe’s “emotive language”, he continued, was cause to doubt that he would have suspended or cancelled any of Shell’s rights.
The Legal Resource Centre’s Wilmien Wicomb, the lead attorney on the case, hailed the ruling as an extraordinary victory for communities that have been fighting for their customary land rights and fishing rights for decades, but were often ignored by cabinet ministers.
“Today they were able to stand up against Shell and say you have ignored us at their peril,” she said.
Wicomb said although Shell was likely to seek to appeal the ruling, it was her view that an application in that regard would not suspend the interdict.
The seismic survey began on December 2. It was being done over an area spanning more than 6 000 square kilometres – virtually the entire Eastern Cape coastline – and was to continue until April. Shell South Africa in 2020 acquired a 50% stake in the offshore exploration rights held by Impact Africa.