Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others

• Jurisdiction: South Africa
• Citation: 2022 (2) SA 585 (ECG)

Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others
2022 (2) SA 585 (ECG)

2022 (2) SA p585

Citation	2022 (2) SA 585 (ECG)
Case No	3491/2021
Court	Eastern Cape Division, Grahamstown
Judge	Bloem J
Heard	December 28, 2021
Judgment	December 28, 2021
Counsel	T Ngcukaitobi SC (with E Webber and N Stein) for the applicants.; OH Ronassen SC for the first respondent.; A Friedman (with L Crow) for the third, fourth and fifth respondents.

Flynote : Sleutelwoorde

Minerals and petroleum — Mining and prospecting right — Exploration right to explore for offshore oil and gas — Application for urgent interdict prohibiting seismic survey pending final interdict — Applicants' prima facie right of meaningful consultation infringed, and their constitutional environmental, language and cultural rights implicated — Irreparable cultural and spiritual harm, threatened harm to marine life and negative impact on livelihood of small-scale fishers arising from harm to marine life, established — Balance of convenience favouring applicants — No satisfactory alternative remedy available — Interim interdict granted — Constitution, ss 24, 30 and 31.

Headnote : Kopnota

This case concerned an urgent application for an interim interdict against Shell Exploration and Production South Africa BV and its subsidiaries Impact Africa Ltd and BG International Ltd (together referred to as Shell), prohibiting them from proceeding with seismic surveying pending determination of an application for a final interdict prohibiting them from proceeding with seismic surveying unless and until an environmental authorisation has been granted under the National Environmental Management Act 107 of 1998 (NEMA).

The applicants were non-profit companies, natural persons and a communal property association (see [3]). They alleged that they became aware of the commencement of the intended seismic survey through the media during the early part of November 2021, and briefed attorneys on 22 November 2021 after protest action and other forms of activism had failed to convince the government to intervene.

At issue was whether the requirements for an interim interdict had been met, ie whether the applicants had established: (i) at least a prima facie right, even if open to some doubt; (ii) a reasonable apprehension of irreparable and imminent harm of the right if the interim interdict were not granted; (iii) that the balance of convenience favoured the granting of the interim interdict; and (iv) that they had no other satisfactory remedy.

The applicants submitted that they had established the following prima facie rights: firstly, the applicant communities had a right to be meaningfully consulted about the seismic survey, because it impacted negatively upon their customary rights, including customary fishing rights; secondly, that their (as well as the public's) statutory right under NEMA, which required that prospectors must obtain an environmental authorisation under NEMA for exploration for oil and gas, had been breached because Shell did not have a NEMA environmental authorisation; and thirdly, that their constitutional environmental rights (s 24), language and cultural rights (ss 30 and 31) were implicated. (See [8] and [9].)

The consultation process followed by Shell was as follows. After their application for an exploration right in terms of s 79 of the Mineral and Petroleum Resources Development Act 28 of 2002 (the MPRDA) to explore for offshore oil and gas in the Transkei and Algoa exploration areas was accepted (on

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1 March 2013 by the Petroleum Agency of South Africa), a draft environmental management programme was made available for interested and affected parties to raise issues and concerns that they may have had with the proposed exploration activities. Advertisements were placed in four daily newpapers — in English and in Afrikaans — notifying the public of the proposed project and providing details of the consultation process and information on how members of the public could provide input for the environmental management programme process, and inviting comment. Comments were compiled after receipt and a draft environmental management programme was placed on the project website, and interested and affected persons were given 30 days to comment. Notification was sent directly to all interested and affected persons. Thereafter a series of in-person group meetings and focused group meetings were held as part of the engagement process. All interested and affected persons on the stakeholder database were invited to these meetings. The environmental management programme identified the potential interested and affected parties 'through analysis of potential stakeholders and based on stakeholders engaged in previous similar studies in the area'. The list of the interested and affected parties consulted was attached to the final environmental management programme. It included government authorities (local and regional), non-governmental organisations, community-based organisations and industry groups (including the fishing industry). The list was further expanded through feedback and suggestions received following 'consultation and disclosure activities'. The applicants' complaint about the consultation process was that members of the villages, communities and traditional communities were not on that list (proof that their communities were not consulted), that 'group meetings' were not held in the communities in question, and that Shell spoke only to the 'Kings' of communities on the incorrect assumption that those 'Kings' spoke for their subjects. (See [5], [21] and [23] – [25].)

The applicants relied on cultural and spiritual harm, the threatened harm to marine life and the negative impact on the livelihood of small-scale fishers arising from the harm to marine life. To prove irreparable harm, the applicants relied on the evidence of 10 experts. In this regard Shell, denying irreparable harm, submitted that it took comprehensive mitigation measures against any of the adverse effects of seismic surveying. (See [43] – [64].)

Shell submitted that balance of convenience did not favour the applicants because the prejudice to it if the interim interdict were granted would be real and devastating, whereas the prejudice that the applicants would suffer was speculative. Shell also submitted that the applicants had an alternative remedy available; they could have approached the Minister in terms of s 90 as read with s 47 of the MPRDA to cancel or suspend its right to explore.

Held

As to a prima facie right

The newspapers in which the advertisements were published were only accessible to literate persons with access to those newspapers. Those who could not read English or Afrikaans were excluded from the consultation process. Given the nature of the communities in question, the notification provided by Shell was inadequate. Shell was under a duty to meaningfully consult with the communities and individuals who would be impacted by the seismic survey. The evidence showed that Shell had failed to do so; the consultation process in question was inadequate and substantially flawed. The exploration right, awarded on the basis of a substantially flawed consultation process, was thus unlawful and invalid. The applicants' right to meaningful consultation constituted a prima facie right which deserved

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to be protected by way of an interim interdict. The applicants established constitutional rights worthy of protection by an interim interdict. Had Shell consulted with the applicant communities, it would have been informed about those practices and beliefs and would then have considered, with the applicant communities, the measures to be taken to mitigate the possible infringement thereof. In terms of the Constitution such practices and beliefs must be respected, and where conduct offended and impacted negatively on the environment, the court had a duty to step in and protect those who were offended and the environment. Whether or not Shell required an environmental authorisation obtained under NEMA was a decision for the court considering the final interdict. (See [22], [32] – [34] and [36].)

As to irreparable harm

Shell elected not to deal with the threat of harm to the applicant communities' cultural and spiritual beliefs. The applicants' allegations in this regard were accordingly undisputed, and there was no reason not to accept their evidence of such harm. The applicants adduced a sizable body of expert evidence which established a reasonable apprehension of irreparable harm to marine life, and that the mitigation measures upon which Shell relied were inadequate. In the circumstances, the applicants established a reasonable apprehension of irreparable harm to marine life, and that the seismic survey would negatively impact on the livelihood of the fishers and cause cultural and spiritual harm. (See [39] and [65].)

As to the balance of convenience

Shell should not now be allowed to use the consequences of its own failure to adequately consult with all interested and affected persons as a ground for why an interim interdict should not be granted against it. The financial loss that Shell was likely to suffer cannot be weighed against the infringement of the constitutional rights in question; it cannot justify the infringement of the applicants' constitutional rights. Where constitutional rights were in issue, the balance of convenience favoured the protection of those rights. Accordingly, the applicants established that the balance of convenience favoured them. The expert evidence established that there was a reasonable apprehension of real harm to marine life; the nature of the harm was not speculative. If there were any uncertainties about the harm that may be suffered, this was...