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Will Shell and the Government take Seismic Blasting Case to the SCA?

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Yesterday, in Case No.: 3491/2021, judgement was handed down in the High Court of South Africa’s Eastern Cape Division in Makhanda.

The matter was from an appeal against a case earlier this year decreeing that: The third, fourth and fifth respondents be and were interdicted from undertaking seismic survey operations under Exploration Right 12/3/252 pending the finalisation of Part B of the notice of motion.

Granting the Costs Order Mbenenge ordered the first and fifth respondents to pay the costs of the application for an interim interdict, jointly and severally the one paying the other to be absolved, such costs to include the costs attendant upon the employment of three counsel, where so employed.

Here are some key takeaways that resulted in this win:

  1. The exploration right was granted unlawfully since there was no consultation with affected communities.
  2. Allowing the exploration meant the Department of Mineral Resources and Energy failed to consider the potential harm to the fishers’ livelihoods, and the impact on their cultural and spiritual rights.
  3. The companies’ consultation with kings, monarchs and other traditional leaders was not enough and “finds no space in a constitutional democracy”.
  4. The contribution of oil and gas exploration to climate change was not considered.
Ricky Stone
Lawyer for the respondents – Ricky Stone from Cullinan and Associates

TIMELINE:

17 December 2021: An urgent interdict against Shell’s seismic survey along South Africa’s Wild Coast was brought by The Legal Resources Centre (LRC) and Richard Spoor Attorneys – supported by Cullinan & Associates and Natural Justice on behalf of the Amadiba, Cwebe, Hobeni, Port Saint Johns and Kei Mouth communities.

28 December 2021: Victory for the little guys as the judgement orders that the third, fourth and fifth respondents be and are hereby interdicted from undertaking seismic survey operations under Exploration Right 12/3/252 pending the finalisation of Part B of the notice of motion. A costs order against the respondents is granted.

30 May to 1 June 2022: An appeal against the 28 December Judgement was heard in the Gqeberha High Court by a full bench of Judges.

1 September 2022: Judgement is handed down by the Judge President of the High Court, SM Mbenege and a Cost Order against the respondents is granted. The Judgement said; “1. The decision taken by the first respondent on 29 April 2014 granting exploration right 12/3/252 to the fourth respondent for the exploration of oil and gas in the Transkei and Algoa exploration areas is reviewed and set aside. 2. The decision taken by the first respondent on 20 December 2021 to grant a renewal of the exploration right is reviewed and set aside. 3. The decision taken by the frst respondent on 26 August 2021 to grant a further renewal of the exploration right is reviewed and set aside. 4. The first, fourth and fifth respondents shall pay costs of this application, jointly and severally, the one paying the other to be absolved, such costs to include, in the case of the first to seventh application, the costs of three counsel and, in the case of the eighth and ninth applicants, the costs of two counsel.”

WHAT ARE THE NEXT STEPS?

Shell Exploration and Production along with the Minister of Mineral Resources and Energy as well as the Minister of Environment, Forestry and Fisheries will now study the judgement and decide whether they have grounds (or the appetite) to take the case to the Supreme Court of Appeal (SCA) in Bloemfontein.

Should Shell and the Ministers fail at the SCA then they have one last shot at winning their case and that is at the Constitutional Court.

Going on the amount of potential money to be wrested from beneath the sea one would expect Shell and their Ministerial buddies to give the SCA one last shot and then hesitate on going to the Constitutional Court should the SCA uphold the decision of the Eastern Cape High Court.

Download the 1 September 2022 Judgement HERE

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Alan Straton

Chief Cook, Bottle Washer and Broom Mechanic at MyPE
Passionate about Port Elizabeth and definitely NOT packing for Perth. Alan's ethos is epitomised in the words of Nelson Mandela; "I have fought against white domination and I have fought against black domination. I have cherished the idea of a democratic and free society. If need be, it is an ideal for which I am prepared to die." See more articles by Alan.