As Makhanda high court Acting Judge Avinash Govindjee prepares to deliver his judgment for the urgent interim interdict against Shell’s seismic survey in the Wild Coast on Friday, seven other applicants have filed an interim interdict to stop Shell from conducting a survey for hydrocarbon reserves between Gqebera and Ramsgate.

Impact Africa Limited’s application to conduct the seismic survey for Shell to seek for oil and gas was accepted by the Petroleum Agency of South Africa (Pasa) on 01 March 2013.

These exploration areas include among others, Gqeberha (formerly Port Elizabeth), Port Alfred, East London and Port St Johns. 

Richard Spoor Attorneys, an environmental law firm and the Legal Resources Centre representing Sustaining The Wild Coast, Mashona Wetu Dlamini, Dwesa-Cwebe Communal property Association, Ntshindisk Nongcavu, Sazise Maxwell Pekayo, Cameron Thorpe, All Rise Attorneys for Climate and the Environment NPC, delivered the certificate of urgency to the Court Registrar this week and the papers were delivered to Shell electronically.

The respondents on the matter are the Minister of Mineral Resources and Energy, Minister of Forestry, Fisheries and Environment, Shell Exploration and Production South Africa LTD, Impact Africa Ltd and BG International Limited.

In a founding affidavit by Reinford Sinegugu Zukulu, the group argues that none of the applicants have been consulted regarding the exploration right or its impact.

The papers indicate that it is not clear if the blasting was already underway or not.

“After receiving an exploration right without any meaningful community engagement eight years ago, Shell is now rushing to blast our seas without any environmental authorisation under the National Environmental Management Act (Nema) on a month’s notice. They do so without even an environmental impact assessment. They do so even though they were told nearly a decade ago to seek Nema approval,” Zukulu said.

The affidavit states that Shell’s conduct is literally criminal under both the Nema and the Mineral and Petroleum Resources Development Act (MPRDA). 

“We ask this honourable court to protect Wild Coast communities, the environment, and our Constitution by stopping them from proceeding — first on an interim basis, and then on a final basis,” said Zukulu.

According to the affidavit, the Environmental Management Programme (EMPr) says very little about communities on the Wild Coast. 

“We are described merely as subsistence fishers who have been forced to adopt a subsistence lifestyle. I note that we reject this characterisation. The Dwesa-Cweba community fought to compel the State to recognise and support customary fishing rights. We are fishing communities. If Shell had bothered to consult with us, they would know this,” read the affidavit.

The affidavit states that there is some discussion of the seafood that we harvest in the EMPr, but no discussion whatsoever about traditional healing or any cultural or spiritual issues relating to the sea. 

“The only heritage concerns mentioned in the EMPr relate to shipwrecks. The only meaningful attempt to consult with traditional communities was a single meeting with two traditional monarchs and a certain Mr Richard Stephenson who was purportedly mandated to represent four Transkei Kingdoms. I note that the relevant footnote only notes three Kings engaged with, and excludes the Kingship of Eastern Mpondoland, the Kingship with jurisdiction over my community,” said the affidavit.

The affidavit states that Shell does not have an environmental authorisation in terms of the Nema.

“In terms of both section 5A of the MPRDA and 24F of the Nema Shell may not commence using its exploration right. Both the MPRDA and Nema make it an offence for Shell to commence its activities without an environmental authorisation. The fact that Shell was not involved from the beginning is neither here nor there. They knew that the right was first granted in 2013 and had barely been exercised since. They knew or ought to have known a Nema environmental authorisation was required to exercise their right,” read the affidavit.

The affidavit said the EMPr acknowledges that the East Coast, particularly the Transkei coastal area, is home to a large poor rural community that is directly reliant on the coast/marine resources to supplement their livelihoods. 

“Despite this acknowledgment, the EMPr, on the basis of limited study on the impact of the intensity of the proposed seismic surveys on fish, concludes that the impact is deemed negligible or low because of the short-term duration of the surveys. Our right to culture under section 30 of the Constitution will be adversely affected by the proposed seismic surveys, as will our section 24 right to environmental protection. It is also inarguable that the proposed seismic surveys will have an adverse effect on the environment,” added the affidavit.

According to the affidavit, the EMPr also does not adequately address the risk of serious impacts to zooplankton from the proposed seismic surveys, which pose potential risks to the increasingly fragile marine food chains in the exploration areas. 

“Nor does it explain and address the challenges that it itself alludes to with respect to assessing risk to highly sound-sensitive cetaceans,” said the affidavit.

The affidavit states that should an interim interdict not be granted and should the blasting go ahead in the absence of an environmental authorisation as planned, there will be irreparable harm.

“Once the blasting of the sea commences, damage will be irreversible,” added the affidavit.

It adds that there is simply no alternative remedy to an interim interdict or a final interdict available to the Applicants.

“The relevant state regulators have been asked to intervene. They have declined. We are not able to prevent the companies from commencing as we have had to do with mining companies because the activities are not on our land. Subsequent criminal prosecution — even a private prosecution — will not cure the damage done. Especially where Shell will have a credible defence that it lacked mens rea in committing the offence if their criminal conduct is not stopped by this honourable court,” said the affidavit.

The affidavit states that the matter is urgent as Shell is about to start firing incredibly loud air guns in our sea every ten seconds, or has started already. 

“This conduct is harmful and plainly unlawful.

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“I note that since 2013 the companies renewed their right without any notice to the general public or communities — twice — and gave notice of their intention to exercise their right a mere 29 days before commencing their blasting. It is also notable that Shearwater Geoservices announced its award of the contract to undertake the blasting in question on 18 October 2021. This also demonstrates Shell had finalised commencement plans for the surveys well before notice of their intention to exercise their right was given,” read the affidavit. DM/OBP