The Makhanda high court has dismissed with costs an application by Shell and Mineral Resources and Energy Minister Gwede Mantashe for leave to appeal its December decision temporarily blocking the petroleum giant’s seismic survey off the Wild Coast.
On Thursday, Judge Gerald Bloem ruled that the interim interdict that he granted to Wild Coast communities on 28 December, temporarily blocking Shell’s exploration for oil and gas deposits under the seabed, remains in place.
On the merits of the application for leave to appeal, he said it had no reasonable prospects of success and “there is no compelling reason why the appeal should be heard”.
Shell and Mantashe had applied for leave to appeal the interim interdict, pending the main application by small-scale fishers from the Amadiba, Cwebe, Hobeni, Port St Johns and Kei Mouth communities, Sustaining the Wild Coast and All Rise Attorneys for Climate and the Environment, challenging Shell’s environmental authorisation. The main application, or Part B, will be heard on 30 May this year.
In delivering his judgment, Bloem said that the effect of the interim order is that Shell cannot undertake a seismic survey under its exploration right, pending the finalisation of the relief sought under Part B of the notice of motion.
“The hearing of Part B (the main application) has been set down for 30 May 2022. The court hearing in the main application will either dismiss it or grant the relief sought. If the main application is dismissed, the interim order will have no effect thereafter. Shell would then be entitled to undertake a seismic survey under the … exploration right. Similarly, if the relief sought in Part B is granted, the effect thereof would be that Shell would be unable to place any reliance on the … exploration right,” he ruled.
Bloem said the inability to give effect to the exploration right would, under those circumstances, be the result of the judgment in the main application and not as a result of the interim judgment. “The interim order will be discharged as soon as the judgment in the main application has been delivered.”
Shell, the judge said, acknowledged that its environmental management programme provides that the window to undertake the seismic survey is between 1 December and 31 May of every year until 10 August 2023. Shell’s counsel had informed the court that the company would not undertake its seismic survey before 31 May, even if allowed to do so.
“It will only do so during 1 December 2022 and 31 May 2023, once again, if allowed to do so,” said Bloem.
This means that, even if leave to appeal were to be granted, and the main application is dismissed, Shell will not conduct a seismic survey before the end of November.
“The refusal of the application for leave to appeal will, accordingly, not have any effect on Shell until the end of November 2022. It is highly likely that judgment in the main application would be delivered long before the end of November 2022, regard being had to the fact that the main application will be heard on 30 May 2022,” said the judge.
“That would be the case even if allowance is made for a possible postponement of the hearing, for whatever reason. The effect of the judgment in the main application will be to discharge the interim order, whether the main application is dismissed or the relief sought therein granted.”
In the circumstances, Bloem said, an appeal against the interim judgement will have no “practical effect, certainly not before 1 December 2022”.
Furthermore, the interim order did not determine any of the issues, which will be determined in the main application. “I have indicated in the interim judgment that the application has reasonable prospects of success in the main application. I have also considered that the grant of the leave to appeal would lead to a piecemeal adjudication on the litigation in the application.”
Nonhle Mbuthuma, of the Amadiba Crisis Committee, told the Mail & Guardian: “We are very happy. We ended up being insulted by the minister [Mantashe] that we were stopping development but if they ended up consulting us from the beginning, they were not going to waste money.
“Right now, I hope that our government is learning a lesson. And that private companies, when they come to South Africa, that they are going to read our laws clearly before they start the work. But they must not blame us as communities: they must blame the government, because it’s their responsibility to make sure that they guide the private companies — tell them the laws of South Africa — before they do any development.
“It’s a lesson to our government, because they must not shift the blame to communities. They must be blamed. That’s all we requested — that we have a right to be consulted meaningfully — not just ticking the box,” she said.
In his judgment on 28 December, Bloem described how Shell was under a duty to meaningfully consult the people who would be affected by its seismic survey, but had failed to do so.
“In all the circumstances, it seems to me that the exploration right, which was awarded on the basis of a substantially flawed consultation process, is thus unlawful and invalid,” he said.
Bloem said the applicants had adduced a sizable body of expert evidence, which “establishes a reasonable apprehension of irreparable harm to marine life” and that the mitigation measures on which Shell relies are inadequate.
“In addition to the harm to marine life, the applicants have also established how the seismic survey will, firstly, negatively impact on the livelihood of the fishers and, secondly, cause cultural and spiritual harm.”