Wild Coast residents are celebrating a victory over “bullying” politicians and “tenderpreneurs” – of human rights over profit-making – after an interdict was granted on Tuesday barring the oil and gas giant from seismic blasting in the area’s pristine waters.
Activists are also hailing the ruling as a significant win for recognition of locals’ customary rights to land and fishing, as Judge Gerald Bloem delivered a double blow in the Eastern Cape High Court in Makhanda by ordering Shell and Mineral Resources and Energy Minister Gwede Mantashe to pay the applicants’ legal costs, jointly and severally.
He granted the interdict at 9.30am on Tuesday, 28 December, stopping the multinational from conducting a seismic survey unless and until environmental authorisation has been granted in compliance with the National Environmental Management Act of 1998 (Nema).
The public interest matter had been brought to court by the Legal Resources Centre and Richard Spoor Attorneys, on behalf of the Amadiba, Cwebe, Hobeni, Port St Johns and Kei Mouth communities, who argued that their generational defence of their land, the sea and their environment was protected by the Constitution.
‘The voiceless have been heard’
Wilmien Wicomb from Legal Resources Centre said 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,” she said.
Sinegugu Zukulu of Sustaining the Wild Coast said 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 the 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,” said Zukulu.
Another Sustaining the Wild Coast member, Nobuntu Mazeka, said the judgment marks an important milestone in their lifetime, as people of Pondoland as well as South Africa, Africa and the world at large.
“We, the people, 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 on borrowed time where money cannot buy their immunity; the mafias must be warned,” said Mazeka.
Nonhle Mbuthuma of the Amadiba Crisis Committee said the 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,” she said.
A committee statement added that the applicants in both this case and an earlier and unsuccessful urgent interdict application, are calling on the public to donate to the united legal effort to stop Shell, with an initial target of 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 off the Wild Coast and Algoa Bay, regardless of the final outcome of the two interdict applications,” it read.
Flood of lawsuits
While the ruling seems to have put paid to the multinational’s oil and gas extraction efforts in South Africa’s coastal waters – for now – it should be viewed in the context of a growing international pushback by communities against the fossil fuel industry.
Had the oil giant succeeded, more than 6,000km2 of the Wild Coast’s marine ecosystem and coastal communities would have been under threat, since the survey would involve “extremely loud [220 decibel] underwater explosions or discharges at intervals of 10 to 20 seconds, which are to continue 24 hours per day for four to five months”, which would kill or chase away marine life, such as whales, dolphins, seals and fish.
Shell and Mantashe – who not only opposed the application but also nailed his colours to the mast by accusing Wild Coast communities opposed to the seismic exploration of engaging in “colonialism and apartheid of a special type, masqueraded as a great interest for environmental protection” because they resisted the company’s imperious extraction efforts – were unswayed by increasing public pressure, with protests along beaches on the Wild Coast, Cape Town, Johannesburg and Plettenberg Bay, as well as outside Shell service stations across the country.
Shell told Daily Maverick that it was still “digesting” the Makhanda judgment and considering its options, but even if it does appeal the interim interdict, doing so will not suspend the order at this stage.
The victory comes more than two weeks after another court application failed in the same court, to stop the seismic surveys.
In the first application, struck down on 3 December, Judge Avinash Govindjee ruled that the applicants – environmental and human rights organisations the Border Deep Sea Angling Association, the Kei Mouth Ski Boat Club, Greenpeace Africa and Natural Justice – had failed to prove their allegation that the survey would cause irreparable harm to communities and the environment. The court found that their evidence was speculative and that the mitigation measures proposed by Shell meant that the seismic survey activities were “low-risk”.
In granting the interdict, Bloem said Shell was under a duty to meaningfully consult with the communities and individuals who would be affected by the seismic survey, but had not done so. The applicant communities, who hold customary rights including fishing rights, had argued they hold a special spiritual and cultural connection to the ocean and that it was therefore imperative that Shell consult with them comprehensively.
Shell argued that it had, by publishing advertisements in newspapers and by consulting local kings and other stakeholders. The multinational said local communities should take up concerns about the blasting with the Minerals Ministry.
Shell’s counsel, Adrian Friedman, said there was no evidence of harm to marine life, that communities’ objections are “speculative”, and claims of cultural and spiritual harm “subjective”.
Shell claimed that the Environmental Management Programme under the MPRDA constitutes an environmental authorisation under Nema, arguing that “Shell and Impact Africa stand to lose hundreds of millions of rand, a massive prejudice which should be taken into account. The harm to Shell is nothing short of catastrophic”, with an immediate cost of R350-million and a total loss in excess of R1-billion.
However, advocate Tembeka Ngcakaitobi argued in court last week that Shell had flouted requirements for extensive consultation under the Mineral and Petroleum Resources Development Act, calling it farcical and a complete “sham consultation, based on exclusion”.
He said Shell had placed adverts three times in 2013 in the Times, Die Burger and Daily Dispatch – English and Afrikaans newspapers – no community newspapers or radio stations whatsoever, and ignoring the fact the dominant languages in the area are isiXhosa and isiZulu. “There is no attempt to reach out to the villagers whatsoever,” he said, adding that consultation venues were exclusionary, in East London, Port Elizabeth (now Gqeberha) and Port St Johns, and the stakeholders consulted included the government, traditional monarchs – who hold limited authority in the region – and PE-based lawyer Richard Stevenson, who acted on behalf of other kingdoms.
In response to Shell’s statement that communities should have approached Mantashe to cancel or suspend the exploration right, instead of seeking the interdict, Ngcukaitobi said Mantashe had been “unequivocal” in his stance against the communities saying, “the regulator is sleeping in the same bed as Shell. Instead of regulating them, he has taken their side”.
Bloem agreed, writing in the ruling: “In the circumstances of this case, [it] is not a satisfactory remedy.”
“I have my doubts whether the process… would have been fair… It is the same minister who tweeted that the South African government considers the objections to the survey ‘as apartheid and colonialism of a special type, masqueraded as a great interest for environmental protection’.”
He said given Mantashe’s emotive language, it is not unreasonable to believe that he would not have suspended or cancelled Shell’s rights, because the minister had “nailed his colours to Shell’s mast”.
The judge found that the exploration right, awarded on the basis of a “substantially flawed” consultation process, was unlawful and invalid because they were not meaningfully consulted about the seismic survey, which would have an impact upon their customary rights including customary fishing rights and that Nema environmental authorisation had been breached.
The Amadiba traditional community, in the applicants’ founding affidavit, voiced concern about the impact the seismic survey will have on the climate, which they said was already showing unpredictable weather patterns, with more extreme weather events such as droughts, heavier downpours of rain, and sicklier livestock. They said the survey could upset their ancestors, some of whom died at sea, and have an impact on their cultural and spiritual relationship with the ocean.
The loss is yet another blow this year for the multinational. In May 2021, a Dutch court ordered Shell to reduce its planet-warming carbon emissions by 45% by 2030 from 2019 levels.
Environmental attorney Roger Cox, who has been lauded as the “man who beat Shell” in that historic victory, is now preparing to respond to Shell’s appeal in 2020, will be petitioning the Belgian government to comply with another of his court victories and consulting on half a dozen climate cases in other countries, reports the Financial Times. He told the newspaper that after this success, he expected copycat legal action against other oil majors, companies in other sectors and eventually individual directors. “I expect an avalanche of cases against the fossil fuel industry and related industries like the car industry”.
“One of the big reasons for the judiciary to exist is to bring balance in society and to protect us from human rights violations from our governments and other large entities that dictate our world and our wellbeing,” he said. “It is just a matter of time [before] the same kind of approaches will also be successful in other countries.”
Cox’s 2011 book, Revolution Justified: Why Only the Law Can Save Us Now, argued that the courts are the world’s best hope of averting further catastrophic climate damage. DM/OBP