Environmental activists around the country are celebrating a huge victory after a full bench of judges at the Makhanda High Court on Thursday set aside the 2014 decision by the Department of Mineral Resources and Energy (DMRE) to grant an exploration right to Shell to search for oil and gas off the ecologically sensitive Wild Coast.

The case to stop the process was brought by Sustaining the Wild Coast NPC, local communities and small-scale fishers and All Rise, Attorneys for Climate and the Environment NPC, represented by the Legal Resources Centre and Richard Spoor Attorneys.

Natural Justice and Greenpeace Africa applied to join the court case and were represented by environmental law firm Cullinan and Associates.

In the judgment signed by Deputy Judge President Zamani Nhlangulela and Judge Thandi Norman, Judge President Selby Mbenenge said the court was satisfied that the review grounds met the threshold.

Exploration right is ‘wrong in law’

“It is demonstrably clear that the decisions were not preceded by a fair procedure,” he said.

“The decision-makers failed to take relevant considerations into account and to comply with the relevant legal prescripts. Therefore the decision granting the exploration right falls to be reviewed under section 6(2) of Promotion of Administrative Justice Act (PAJA) and the principle of legality.

“Logically, the renewals arose from the exploration right and have no independent and separate existence from the right. It follows that if the exploration right is wrong in law, the renewals are legally untenable. The decisions are liable to be set aside in terms of sections 8 of PAJA,” said Judge Mbenenge.

This fight isn’t over, activists warn as court hears case against Shell’s quest for Wild Coast gas

He said the decision taken by the DMRE on 29 April 2014 — granting exploration right 12/3/252 to Shell for the exploration of oil and gas in the Transkei and Algoa exploration areas — was reviewed and set aside.

“DMRE decisions on 20 December 2021 to grant a renewal of the exploration right, and on 26 August 2021 to grant a further renewal of the exploration right, are reviewed and set aside.”

Mbenenge said the applicants assailed the three administrative decisions in terms of PAJA — procedural unfairness, failure to take into account relevant considerations, and failure to comply with applicable legal prescripts.

Consultation ‘procedurally unfair’

Mbenenge also said the consultation carried out by Impact Africa was procedurally unfair.

“The decision to grant the exploration right falls to be reviewed on this ground alone, in terms of section 6(2) (c) of PAJA. The renewals depend upon the grant of the exploration right whose process has been proven to have been fatally defective. By the same token, the decision to renew the exploration right also fall[s] to be reviewed,” he said.

On failure to take into account relevant considerations, he said one of the objectives of the Integrated Coastal Management Act (ICMA) was to introduce an integrated approach to management, and here the decision maker did the opposite and dealt with the application as an energy sector-specific issue.

According to Mbenenge, the minister [Gwede Mantashe] was duty bound to take into account the considerations referred to in the ICMA. 

“He did not do so. This renders the impugned decision reviewable. The failure on the part of the minister to take into account the considerations dealt with above is fatal to the decision to grant the exploration right and the renewals thereof, rendering these reviewable in terms of section 6(2)(e) (iii) of PAJA,” he said.

On the failure to comply with applicable legal prescripts, the judge said statements were made in the environmental management programme that the seismic survey would create jobs and increase government revenues, but with no detail to substantiate these claims, no explanation of how jobs would be created, how the economy would be stimulated or how the seismic survey would improve the socioeconomic circumstances in which most South Africans lived.

“On this additional ground, too, the impugned decision is liable to be set aside,” he said.

Shell’s spokesperson Pam Ntaka said the company respected the court’s decision and was reviewing the judgment to determine its next steps.

“At this stage we are unable to comment on whether we will appeal… We remain committed to South Africa and our role in the just energy transition,” she said.

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‘Benchmark for marine justice’

Wild Coast resident Notshana Gxala said the victory against Shell means they could now continue utilising the economy of the Wild Coast.

“Many of us living closer to the ocean depend on the ocean economy to survive,” he said.

Janet Solomon from Oceans Not Oil said the judgment is a benchmark for South Africa, for marine justice and for the Oceans Not Oil movement. She said they were indebted to the bravery of Sustaining the Wild Coast and the other applicants.

“The judgment recognises the key role of the ocean to livelihoods and the right to food security; the embedded spiritual and cultural connections of South Africans to the sea; that climate change impacts and considerations of further oil and gas development were not taken into account; that chiefs and kings do not have a legal right to speak for their communities; that the entire ocean community, including the marine environment and animals, needs consideration under the Integrated Coastal Management System,” she said.

Solomon said if Shell and Impact Africa started over again, they risked the wrath of a South African community well aware of the damage they were intent on doing and who would fight them every step of the way.

Read more on Daily Maverick:  Take that, Shell! Locals hail victory over ‘bullies’ after court halts Wild Coast blasting

The Green Connection’s strategic lead, Liziwe McDaid, said that once again — albeit with the help of the courts — ordinary South Africans had shown that the Constitution and what it stood for would always win over decisions that were not in the public interest.

‘Great message to the rest of Africa’

“This victory is also a great message to the rest of Africa for African Climate Week, since our continent is experiencing an onslaught of offshore oil and gas proposals, which will have detrimental future impacts.

“If South Africa is serious about climate change, then we must halt all offshore oil and gas exploration immediately. We hope that this court victory serves to signal a shift to good governance of our oceans, which is needed in the climate crisis we face,” said McDaid.

Ntsindiso Nongcavu from Coastal Links in Port St Johns said the ruling meant that their lives would carry on, as their livelihoods depended on fishing.

 “We are happy that our plans have been fulfilled and our livelihoods have been secured, not just for us, but for future generations. This outcome motivates us because our government pays no mind to its people, but instead seems to want to make foreign companies richer.

“If the onslaught of offshore oil and gas continues, the future generations will have no interest in the sea as a means of life. We are glad that Shell did not win this case because it would mean that thousands of fishers will not be able to use the ocean as before, because it will be zoned off and turned into a no-go area. 

“People will have to be evicted to make space for these operations. That would mean that people’s rights will be taken away from them,” said Nongcavu.

‘Win for the planet’

The Amadiba Crisis Committee’s Nonhle Mbuthuma said the judgment meant a win for the planet. 

“If the judgment had been in favour of Shell, that would have meant the whole planet loses everything, because this case is not just about livelihoods. It is about saving the planet and humanity,” she said.

Sustaining the Wild Coast’s Sinegugu Zukulu said that unlike other coastal stretches in South Africa, indigenous communities had maintained continuous occupation of this area, despite waves of colonial and apartheid dispossession.

“This is no accident. Our ancestors’ blood was spilt protecting our land and sea. We now feel a sense of duty to protect our land and sea for future generations, as well as for the benefit of the planet,” he said.

Pooven Moodley, director at Natural Justice, said the victory set an important precedent during the climate emergency.

“The court was clear that communities need to be properly consulted and that environmental impact assessments are critical. The cultural and spiritual connection to the land and ocean featured strongly in the judgment. 

“This victory provides hope and momentum as people stand up across the planet. There are 148 oil and gas projects in the pipeline in Africa. This victory will ensure the tide turns,” said Moodley. 

Wilmien Wicomb, an attorney at the Legal Resources Centre, said the community scored a significant victory on behalf of rural people across the country — people who were dispossessed daily of their land and resources by the persistent practice of the state and companies who ignored them and spoke only to traditional leaders.

“There is no law that authorises chiefs and monarchs to do that and, in any event, the court said there is no space in a constitutional democracy for such a top-down approach,” she said. DM/OBP