Cape Town - The Eastern Cape High Court has reserved judgment after hearing arguments for Minister of Mineral Resources and Energy Gwede Mantashe, Impact Africa and Shell’s application for leave to appeal against the judgment handed down in September which prevented Shell from conducting seismic surveys off the ecologically sensitive Wild Coast.
The seismic survey was set to take place in December last year but was marked by litigation and nationwide protests against the oil exploration activities.
On September 1, the high court in Makhanda set aside Mantashe’s decision to grant Shell the right to conduct seismic surveys along the Wild Coast in its search for oil.
This judgment was declared a resounding victory for social and environmental justice.
It found that the process of granting the exploration rights was procedurally unfair on several grounds. It also found that Impact Africa did not undertake an environmental impact assessment, or obtain environmental authorisation in terms of the National Environmental Management Act before it commenced the survey.
Wild Coast communities and NPC Sustaining the Wild Coast challenged the awarding of the exploration rights and they were joined by Greenpeace Africa and Natural Justice in the litigation.
In the court proceedings during the application for leave to appeal, advocate Adrian Friedman represented
Shell, advocate Chris Loxton SC represented Impact Africa, State Attorney Jennifer Williams represented the minister of forestry, fisheries and the environment, and State Attorney Albert Beyleveld represented the minister of mineral resources and energy.
They brought the appeal forward on the grounds of unreasonable delay by the applicants in bringing the application for review. They felt that the communities and NGO partners should have pursued an internal appeal to Mantashe before approaching the court.
They also argued that the consultation process carried out was not flawed but complied with the requirements of the Mineral and Petroleum Resources Development Act.
Loxton said Impact Africa “could have done better” by publishing notices in Xhosa instead of just in English and Afrikaans, but that they had complied with the regulations.
Judgment was reserved and the parties expect to hear whether the court will grant leave to appeal by the end of the year.
Delme Cupido, southern Africa hub director for Natural Justice, said it was disappointing that the regulator, Minister Mantashe, chose to appeal against the historic judgment of a full bench of the high court, which recognised and affirmed the rights of communities to be properly consulted on developments that affected their livelihoods, food security and cultural and spiritual rights.
kristin.engel@inl.co.za