Maverick Citizen Op-Ed
Shell stopped! A community’s generational defence of their land, the sea and their environment must be protected by the Constitution
On Tuesday morning the Makhanda High Court issued an interim interdict preventing Shell from ‘undertaking seismic survey operations under Exploration Right 12/3/252 pending the finalisation of Part B of the notice of motion’. Johan Lorenzen, an associate with Richard Spoor Attorneys, reflects on the significance of this morning’s successful judgment in the application to interdict Shell from seismic blasting off the Wild Coast.
On Tuesday, the Makhanda High Court ruled in favour of several Wild Coast communities in our application to interdict (stop) Shell’s seismic blasting of 6,011km2 of the resplendently beautiful Wild Coast.
But also, history continuing.
History in the making.
It has been a bit frustrating, honestly.
And they kept calmly saying not to worry. That it doesn’t matter whether we win or lose because either way, this is just a step in a long struggle.
Which is not what a lawyer wants to hear. I want to bloody win, dammit.
But, of course, they’re right.
And their rightness – on this question, on the righteousness of their entire struggle for community-driven development – is why it is such an absolute privilege to represent them. The court papers we prepared for them are full of their unique moral rightness, or righteousness.
Building a public interest case
We weren’t supposed to be involved in this case at all.
As the papers show, we came in at the last second as it became clear that the first application to stop Shell needed to go to court before the Wild Coast communities keen to fight Shell would be able to join.
Plus, the communities had a different cause of action.
This meant that our team had a huge amount of work to get the papers together. With this stress of the amount of work required I will never forget sitting down with Sinegugu Zukulu for lunch by the beach to start preparing his founding affidavit the day after it was decided we would represent him and others in a new case.
I was so stressed.
He was anything but.
He rattled off pure poetry about the Constitution and how his community’s generational defence of their land and sea and their environment surely must be protected by the Constitution. With clear examples. It was an address worthy of a seasoned advocate like Tembeka Ngcukaitobi (more on him later).
As he spoke and I scribbled, the weight of stress lessened. With his clarity of thinking I just needed to transcribe.
I sat down with Nonhle Mbuthuma and it was like she was on the same script as Sinegugu, but with her own organic expression of the same story.
The same with Lihle Mbokazi.
The same with the stunning affidavits prepared by Wilmien Wicomb on behalf of the Dwesa-Cwebe community clients based on their centuries of struggle and her more than a decade supporting them.
The same with the affidavits taken by the Natural Justice team from community fishermen in Port Saint Johns and Kei Mouth.
With such clarity, it was a complete pleasure to merely get their stories into affidavits. Because they know their story. And the essence of their story is this:
- The sea is immensely important to them. It feeds their communities. It also brings their communities together. And heals them – just when they enter it, but particularly in partnership with their sangomas (traditional health practitioners);
- Because of the sea’s importance to the communities, somebody should consult with them before blasting their seas. But no one bothered to consult with them when the application for the seismic survey was made; and
- Because of this, the law must come to their aid because the state clearly wouldn’t.
And so hundreds of pages of court papers came together with the least possible amount of effort because they knew their stories.
I beg you to read them when you have time, especially the affidavits of Sinegugu, Ntsindiso Nongcavu, Sazise Pekayo, Cameron Thorpe and Lihle Mbokazi, which you can find here.
I don’t want to dwell on anger today.
But if you read their affidavits with an open mind and heart I think you will share my anger at Gwede Mantashe’s suggestion that Wild Coast communities are engaged in “colonialism and apartheid of a special type” through their resistance to actions by a foreign multinational company that did not see fit to consult them. And at the fact that the South African government’s official Twitter account (!!) amplified his baseless spite. It was deeply cathartic to draw the court’s attention to this approach to our clients by the person responsible for regulating Shell.
A diverse and dedicated team
Anyway, back to the work.
The least possible amount of effort doesn’t mean no effort, mind you. Our team hardly slept, typing and consulting and strategising. Not to mention the huge amount of admin that comes with a case like this.
Not to mention the immense effort – skilfully spearheaded by Melissa Groenink of Natural Justice and Ramin Pejan of Earth Justice – to help experts to share their expertise with the court in a way that would be legible for the court.
Plus the host that made these papers possible. Richard Spoor for training me up and running a firm where I can drop everything to take a new case with no certainty of payment or success and great risk of loss and humiliation. A legend.
To the rest of the core drafting team – Khanya Sidzumo, Dan Mafora and Lara Wallis – your excellence and kindness makes working with you effortless.
To the constellation of lawyers who I peppered with questions with not even a suggestion of payment: Danjelle Midgley, Melissa Fourie, Michael Mbikiwa, Kirsten Youens, Janice Tooley, Alan Dodson – the list goes on.
To Margie Pretorius for the sterling editing and easy cooperation.
If I may pause to thank our experts. They also were remarkable in how well they know their story based on decades of expertise. This made sharing their expertise on the immense harms that come from seismic blasting – not to mention actual oil exploration – as effortless as possible. Many thanks, in no particular order, to: Jacqui Sunde, Jennifer Olbers, Jean Harris, Kendyl Wright, Doug Nowacek, Lynton Burger, David Russel, Mike Bruton, and Alex Winkler.
Back to all the work we had to do!
Thankfully, we had the leadership of the remarkable Wilmien Wicomb.
Wilmien is not only one of the kindest people I have ever met. She is also one of the best lawyers at their craft in the world today. And her whole life, her whole career, prepared her to lead us in this case. She just keeps winning on behalf of indigenous communities by first listening to them – really, really listening – and then bringing the law in to support them. Her wins for indigenous people have especially been linked to customary fishing rights, most notably the landmark Gongqose judgment.
This case would have gone nowhere without her.
Of course it would have gone nowhere without our incredible team of advocates.
I won’t spend too much time on Tembeka Ngcukaitobi – his reputation precedes him – but I will say this: I am simply in awe of his ability to devour court papers in a matter of hours and then present them to court on his feet better than they were. If you want to enjoy him properly, watch his oral masterclass in court here.
But praise needs to go especially to junior counsel here – Nikki Stein and Emma Webber. I worked most closely with Emma, who initially said she could give me 0.5 days of help – which she gladly gave – and then complained not as she got sucked into the vortex of the case. Her clarity of thinking – while battling Covid (!) – was an immeasurable asset in setting up the case. And she is just always just such a delight to work with! And her and Nikki’s Heads of Argument were excellent. Thank you, Emma and Nikki!
I should also add some words of praise for Shell’s legal team. They were formidable and talented and represented their client effectively in our profession’s finest traditions while treating us with impeccable collegiality. I see on Twitter and elsewhere that some attack them. This is misplaced. They did their jobs and did them well. If what they did makes you angry, channel that anger to systemic change.
As Michael Brooks said: “Be ruthless with institutions and kind with individuals.”
So, where was I?
Yes… the frustration at our clients’ lack of concern about winning or losing.
This is because they know their story so well. In defending their land and sense of community from apartheid and colonial oppression – and now the democratic government and multinational corporations – they know all too well that wins and losses come and go but what is important is to keep fighting with commitment and love.
So, today is a HUGE victory.
But it is only a small step towards the communities’ struggles to conserve their lands and seas while sustaining themselves from the fruits.
It is a small step in the fight against climate change that already affects them.
It is a small step towards the ultimate victory – bottom-up development based on their ethic of conservation and community – that our clients deserve.
Today, I recommit myself to their struggle.
Please join me.
Not to “help” them.
With solidarity, I believe that we will win.
In love and solidarity. DM/MC
* A full analysis of the meaning of Tuesday morning’s judgment will follow in due course.