The environmental authorisation for the proposed four-month drilling project was granted to TotalEnergies, but the company intends to transfer the environmental authorisation to Shell.
(Rawpixel_
The mineral and petroleum resources department and Shell are to appeal a Western Cape High Court judgment that set aside the government’s environmental authorisation for TotalEnergies EP South Africa to drill for oil and gas off the country’s south-west coast.
Last month, the court ruled in favour of The Green Connection and Natural Justice, finding the environmental impact assessment (EIA) failed to fully consider the risks of a major oil spill, socio-economic impacts on fishing communities and South Africa’s climate obligations.
It sent the matter back for a fresh decision, requiring new studies, updated information and proper public participation before exploratory drilling can proceed.
The environmental authorisation for the proposed four-month drilling project was granted to TotalEnergies, but the company intends to transfer the environmental authorisation to Shell.
The department of forestry, fisheries and the environment has chosen to abide by the high court’s ruling rather than appeal. But the minister of mineral and petroleum resources, his director-general and Shell are now seeking permission to challenge the decision in either the Supreme Court of Appeal or before a full bench of the Western Cape High Court.
The mineral and petroleum resources department and Shell argue that the court misapplied the law, but The Green Connection and Natural Justice maintain the ruling is legally sound and consistent with the Constitution and environmental laws that require precaution, transparency and public participation.
“While this is disappointing, we are hopeful that the high court will uphold its ruling, which was a big win for human rights and climate justice, especially for those who are likely to be most affected,” said The Green Connection’s legal adviser, Shahil Singh.
“Moreover, without the public having had a meaningful opportunity to interrogate the full, updated oil spill and blowout contingency plans, we do not see how this can be granted.”
Singh noted that not making these plans available to the public until after the environmental approval was granted violated people’s right to comment on emergency preparedness, and seemed to significantly motivate the court’s decision.
According to the application for leave to appeal from the minister and director-general, the “learned judge erred in finding that the environmental impact assessment failed to consider the socio-economic impacts on both the commercial and small-scale fishing sectors”.
“The fishing sector was consulted during the EIA and the result of the consultation was submitted to the DG [director-general] … The safety of the fishing sector was also assessed and the EIA further recommended safety measures to be implemented during the four-month drilling operation,” they said.
They maintained the court erred by requiring a quantification of oil spill economic impacts, despite acknowledged scientific uncertainty,arguing that the EIA sufficiently considered risks through worst-case modelling.
“The likelihood of a crude oil blowout is miniscule to the extent that it is unlikely. Furthermore, the evidence shows that the likelihood of finding oil or gas condensate is currently unknown and a worst-case scenario of a crude oil blow-out was assessed. If gas is found and a blow-out takes place, none of the consequences to the community, the fishing industry and individual fishermen would result.”
They said the court erred in its application of the cautionary approach by deciding that Total SA should have taken preventive measures before the anticipated harm of a blow-out and oil spill materialised in that the likelihood of a blow-out is minimal.
“Measures are indeed applied during the drilling process to prevent a blow-out; a capping of any blow out will take place with a cap already present in Saldanha Bay.”
In the result, they said, another court would find that the final EIA report did not have to quantify the economic impact of “unplanned events to the extent of rand and cent”.
The proposed drilling area is 60km to 170km away from the coast at its closest and furthest point and the water depth is about 700 metres to 3200m and “the proposed four-month drilling operations will not impact the coastal ecosystem and the communities that depend on it”.
The state applicants argued that there is no legal requirement under the National Environmental Management Act (Nema) or related statutes to assess production phase climate impacts during an exploration authorisation.
“The court correctly found that the activity for which the environmental authorisation was granted pertains specifically to exploration rather than production. However, the court erred in its subsequent conclusion that exploration and production are merely two phases of a single process and consequently that the environmental impacts of production on the climate must be considered.”
The court was incorrect in failing not to consider the factual and legal evidence demonstrating that exploration and production are entirely distinct activities and that an exploration right does not encompass the activity of production unless a separate right has been granted accordingly.
They said the court erred in assigning a duty to Total SA to conduct a transboundary EIA during the exploration stage as international law does not impose obligations on individuals, but rather on the state. “Furthermore, neither Nema nor the EIA regulations establish such an obligation.”
Since the 1940s, no blowouts or oil spills have occurred in South African waters and the Oil Spill Response Limited, a global cooperative dedicated to oil spill response and supported by more than 160 oil and energy companies, has a facility in Saldanha Bay.
“If oil and gas are discovered, Total SA will need to apply for a production right and carry out another assessment of the blowout and oil spill contingency plan for the oil and gas production phase.”
The applicants said the court erroneously disregarded the evidence that it is impossible to prepare the oil spill and blowout contingency plans, without the information that the applicants can only acquire following the procurement of the environmental authorisation.
“This point was not contested by the applicants [Green Connection and Natural Justice]. The final EIA report adequately explains how Total SA plans to modify, remedy, control or halt an oil spill caused by a well blowout.”
Shell Exploration & Production South Africa BV argued that the court made legal errors in five areas — from socio-economic modelling to the scope of climate impact assessments — and that these issues merit resolution by a higher court. If successful on even one ground, Shell believes the appeal could substantially limit the required “deficiencies” to be corrected by Total.
It said the court required a “quantification” of the economic impacts of an oil spill, despite uncertainties. Shell contends that the EIA complied, using worst-case modeling and acknowledging limitations.
Shell also said that contrary to the court’s finding, the factors were adequately addressed in the assessment and appeal documentation. It argued that the court wrongly treated exploration and production as one project, requiring assessment of production-phase climate impacts at the exploration stage — an approach that is speculative and overbroad.
Shell contended that the court improperly relied on international law not incorporated into South African domestic law and wrongly imposed obligations beyond the scope of Nema regarding transboundary environmental assessments.
It said the court accepted Total’s evidence that it was impossible to produce the blow-out contingency plan and oil spill contingency plan at the application stage, yet also found they must be provided at that stage, creating a direct contradiction that effectively prevents Total from obtaining environmental authorisation.
It further ruled on a future lack of public participation, which was an error as courts cannot review a process that has not yet occurred, Shell said.
The Green Connection and Natural Justice said that from a legal standpoint, precaution and transparency must prevail, to guarantee justice for the coastal communities and small-scale fishers, “who refuse to be sidelined in decisions that affect their livelihoods and the future of our oceans”.
“The high court must now decide whether to grant leave to appeal — if refused, the respondents may petition higher courts, but until any appeal is finalised, the 13 August 2025 judgment remains binding,” they said.
They added that they would oppose the applications and stand with affected communities “to defend the recent high court ruling”.