28 December 2021: Today the Grahamstown High Court in Makhanda ordered Shell to immediately cease its seismic blasting along South Africa’s Wild Coast, while ordering Shell and the Minister of Mineral Resources and Energy to pay the costs of the application for the interim interdict.
Details of the judgement:
In granting the interdict sought by communities affected by the blasting and supporting civil society organisations, Judge Gerald Bloem said that Shell was under a duty to meaningfully consult with the communities and individuals who would be impacted by the seismic survey, and that based on the evidence provided, Shell failed to do so in the case of the applicant communities who hold customary rights, including fishing rights. They also hold a special spiritual and cultural connection to the ocean. It was thus crucial for Shell to consult these communities and understand how the survey may impact upon them. They did not. The judge found that the exploration right, which was awarded on the basis of a substantially flawed consultation process is thus unlawful and invalid. The applicants’ right to meaningful consultation constitutes a prima facie right which deserves to be protected by way of an interim interdict.
On irreparable harm:
The applicants rely on cultural and spiritual harm; the threatened harm to marine life; and the negative impact on the livelihood of small-scale fishers, arising from the harm to marine life. In its answering affidavit, Shell elected not to deal with the aspect relating to the threat of harm to the applicant communities’ cultural and spiritual beliefs, the applicants allegations in that regard are accordingly undisputed. The applicants also provided a massive body of expert evidence on the threat of harm to marine life, and this evidence establishes that, without intervention by the court, there is a real threat that the marine life would be irreparably harmed by the seismic survey. Against the acceptance of the body of expert evidence, Shell’s denial that its activities will have an adverse impact on marine life cannot be sustained. The judge was satisfied that the applicants have established a reasonable apprehension of irreparable harm to marine life. 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.
Costs:
Since the applicants were successful in obtaining the interim interdict, and because Minister Mantashe also opposed the application, the Minister and Shell are accordingly ordered to pay the applicants’ costs.
Next steps:
Shell has been interdicted from undertaking seismic survey operations pending the finalisation of Part B of the application. A court will need to determine whether or not Shell requires an environmental authorisation obtained under NEMA, when part B of the application is dealt with at a date yet to be determined. The Applicants may also challenge the awarding of the exploration right based on the failed consultation. Shell may appeal the interim interdict, but it will not suspend the order at this stage.
Responses from applicants:
“The voices of the voiceless have been heard. The voices of the directly affected people have at last been heard, and the constitutional rights of indigenous people have been upheld.
This case reminds us that constitutional rights belong to the people and not to government, and that the only way that we can assure that the rights of indigenous people are living – and not just written on paper – is if we challenge government decisions that disregard these rights. This victory is hugely significant because we have made sure that the rights of indigenous communities are kept alive.” – Sinegugu Zukulu, Sustaining the Wild Coast (SWC)
“Today’s judgment marks one of the important milestones in our lifetime as people of not only Pondoland but South Africa, Africa and the world at large. We – the people – we took a stand in fighting against the BULLYING by Politicians, tenderpreneurs, the so-called investors who undermine and threaten our livelihoods as ordinary people. The extraction of our natural resources is not a solution for so-called “poverty-stricken communities” but a get rich quick scheme of those in power as well as financial control to the greedy Mafias of this world. We are living in borrowed time where money cannot buy their immunity; the mafias must be warned.” – Nobuntu Mazeka, Sustaining the Wild Coast (SWC)
“This case is about making sure that profit-making does not override human rights. It is about making sure that the voices of rural communities are as important as the voices of the elite. The case is not just about Shell – it is about both protecting human rights and animal rights which are both enshrined in the constitution. As coastal communities we have relied on the sea for centuries – and we are glad that the judge has recognised that our ocean livelihoods must not be sacrificed for short term profit.” – Nonhle Mbuthuma, Amadiba Crisis Committee
“I feel impressed and very, very happy and proud that the court has listened to our voices – the people living on the coast. That for me is a big thing, because most of the time we feel that our government is not interested in listening to us – their people.
Also, winning in this court case means that we are not alone – the courts are with us in protecting our resources – which are the resources of the citizens of all South Africans. A decision against Shell is a decision to protect the ocean – which is ourselves. This is a decision for all citizens of South Africa – not just the residents of the coast. As residents of the coast it is our responsibility to give a shout so that everyone can hear what’s going on around us. And then we work together to protect our resources for future generations so that they can live the life we are living today like our forefathers did. So this judgement is a big win for all of us – citizens and government – the whole of South Africa. I am so happy. Wow!”- Siyabonga Ndovela, Amadiba Crisis Committee
Responses from attorneys:
“The case has huge significance in that it shows that no matter how big a company is, it ignores local communities at its peril. This case is really a culmination of the struggle of communities along the Wild Coast for the recognition of their customary rights to land and fishing, and to respect for their customary processes. The Amadiba and Dwesa-Cwebe communities fought for such recognition in earlier cases, and the Makhanda High Court reminded the state and Shell today, once again, that the indigenous rights of communities are protected by the Constitution from interference, no matter how powerful the intruders are.” Wilmien Wicomb, Legal Resources Centre
Counsel
The judgment was made by Judge Gerald Bloem.
Applicants’ counsel: Tembeka Ngcukaitobi SC; Emma Webber; Nikki Stein instructed by Richard Spoor Inc and Legal Resources Centre
Third to Fifth Respondents’ (Shell) counsel: Adrian Friedman; Lauren Crow
First Respondent’s (Minister Mantashe) counsel: Olav Ronaasen SC
Minister Creecy abided the outcome of the application.
The founding affidavits and supplementary affidavits with expert reports can be found here.
Cullinan & Associates brought a previous urgent interdict application on behalf of Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, Natural Justice and Greenpeace Africa. The court denied the application and ordered the applicants to pay the legal costs of Shell and the Minister of Minerals and Energy. The applicants filed an appeal to the judgment last week which found that there was no reasonable apprehension that Shell’s seismic blasting would cause irreparable harm.
Relevant press releases refer:
https://naturaljustice.org/massive-blow-for-the-wild-coast-urgent-interdict-denied/
Natural Justice: Urgent Interdict to Protect Wild Coast
Natural Justice: If we have to go to Court we will
The applicants in both cases are calling on the public to donate to the united legal effort to stop Shell here, with an initial target of raising R3 million by 5 January 2022. The applicants in both cases wish to challenge the exploration right which Shell and others rely on to search for oil and gas of the Wild Coast and Algoa Bay, regardless of the final outcome of the two interdict applications.
For media enquiries contact:
- Sinegugu Zukulu +27 724 285 109
- Siyabonga Ndovela +27 710 084 989
- Nonhle Mbuthuma +28 763 592 982
- Wilmien Wicomb, Legal Resources Centre +27789208366
- Katherine Robinson, Natural Justice +27 762 276 517
- Chris Vlavianos, Greenpeace Africa cvlavian@greenpeace.org +27 798 837 036
This is not about Race or Butterflies.
In accusing the citizens of South Africa who are uniting against exploration for oil and gas off the Wild Coast, of a colonial and racist agenda that seeks simply to protect butterflies, Minister Mantashe shows himself woefully unconscious and ignorant of the times we are living in.
The Wild Coast fisher communities of Port St John’s, Dwesa-Cwebe and Amadiba have written to Minster Mantashe in response to his ignorant and divisive statements:
Sustaining the Wild Coast (SWC) works to amplify and support the voices of rural people on the Wild Coast and work with them to grow ecotourism and agriculture as drivers of sustainable economic development. The Amadiba community has had to resist the destruction of their land and livelihoods through coastal dune mining for nearly 20 years. Now they, together with Wild Coast communities further south, must fight to protect the ocean and their ocean-based livelihoods from oil and gas exploration and extraction. SWC stands with these communities as they stand, like David against the Goliath of Shell and the ANC government. We humbly add our voices to the voices of the communities in whose custodianship the Wild Coast has been for centuries.
“To stand together against an unholy partnership between transnational corporation Royal Dutch Shell and companies heavily invested in by the ANC is the exact opposite of having a colonial racist agenda. It says instead that we are tired of our government and connected elite conniving with global corporations to irresponsibly exploit what belongs to all South Africans. To stand against Shell is to say no to the ongoing exploitation of the Global South by the company that has taken no responsibility for devastating the Niger Delta and the assassination of Ken Saro-Wiwa and the Ogoni Nine 26 years ago.” – SWC director Nobuntu Mazeka
“To stand against seismic testing off the Wild Coast without a proper Environmental Authorisation is to demand that the most recent research be taken into account before we risk any further damage to ocean ecosystems. It is irresponsible to allow seismic testing to proceed based on outdated information. To stand against seismic testing off the Wild Coast is to stand with rural residents of the Eastern Cape, such as those of Amadiba and Dwesa-Cwebe who are disregarded by a government that seeks their votes but disregards their voices and needs. They will not benefit from the exploitation of offshore oil and gas.” – SWC director Sinegugu Zukulu.
“To stand against Shell is to stand with indigenous communities around the world protecting the world’s last remaining wild places. Indigenous people living on communally owned land occupy about 20% of the earth’s surface but protect 80% of the earth’s remaining biodiversity upon which human survival depends. To stand with them is to stand for less consumptive lifestyles and a deep acknowledgment of the fact that we cannot keep taking more of the Earth’s resources than it is able to give. Economic development must be about more Earth-honouring ways to live.” – SWC director Margie Pretorius
“To stand against oil and gas offshore exploration is to seek to protect all South Africans from catastrophic climate change. The International Energy Agency has called for an end to all fossil fuel exploration, stating that we must not extract more than 40% of known oil and gas reserves if we wish to avoid global warming above 1.5C. Sadly it is the poor and vulnerable, and communities of colour who are and will be hurt most by climate change.” – past SWC director and Environmental Futurist, Dr Nicholas King.
“To stand against the DMRE and Shell is to demand that South Africa moves quickly towards an eco-centric economy that will have health and socio-economic benefits for all. To stand against fossil fuel extraction off the Wild Coast is to stand for a just transition and for job creation through the construction of renewable energy infrastructure, and equitable access to affordable energy for all. It is to acknowledge that the long-term impacts of mineral extraction far outweigh the short-term benefits and to act responsibly for the wellbeing of both present and future generations. It is to demand that the full impacts of exploiting natural resources be properly understood before allowing any extraction – if at all.” – SWC director Andrew Bennie
“To stand against Shell and our own government is to stand in the knowledge that all life systems are connected and that if we destroy the ocean we will destroy ourselves. All South Africans, from all walks of life, breathe the same air. The very oxygen we breathe is generated by healthy oceans. We are totally dependent on the health of our natural environment.”- SWC founder Bishop Geoff Davies
We stand for life, and firmly against your neocolonial project of oil and gas extraction Mr Mantashe. This is not about protecting butterflies as you so ignorantly state. This is about the well-being of us all.” – Ulwandle Yimpilo. The Ocean is Life.
Sustaining the Wild Coast is the first applicant in the second interdict hearing against DMRE and Shell to be heard on December
The applicants are represented by the Legal Resources Centre and Richard Spoor Inc, Attorneys. Their counsel are Tembeka Ngcukaitobi SC and Advocate Emma Webber.
Lawyers and organisations involved in the litigation against Shell have agreed to collaborate in public fundraising. This fund will be used for litigation against offshore exploration for oil and gas. Please donate to litigation costs via The Green Connection here:
https://thegreenconnection.org.za/donate/
For further information contact:
- SWC – Sinegugu Zukulu – 0724285109
- Margie Pretorius – 0828739053
- Amadiba Crisis Committee for Mr Mashona Wetu Dlamini – Nonhle Mbuthuma – 076 359 2982
- All Rise Attorneys for the Climate and Environmental Justice – Lihle Mbokazi – 083 747 2640, Janice Toohey – 0836505691 info@allrise.org.za
- Richard Spoor Inc – Johan Lorenzen johan@rsinc.co.za
- Legal Resources Centre – Wilmien Wicomb wilmien@lrc.org.za
protesting against the Shell seismic survey on the Wild Coast to look for oil.