PRETORIA - The Grahamstown High Court in Makhanda on Tuesday granted an interdict against Shell’s seismic survey along the Wild Coast
This a second application made in the same court to stop oil multinational Shell’s seismic survey along South Africa’s Wild Coast.
Three weeks ago, Judge Avinash Govindjee dismissed the application by activists – including Greenpeace – to stop the survey on the basis that “irreparable harm” to marine species had not been proved.
On Tuesday, Judge Gerald Bloem granted the applicants Amadiba, Dwesa-Cwebe, Port St Johns and Kei Mouth communities an interdict against Shell. These communities are all recognised small-scale fishing communities, while the Dwesa-Cwebe community has had their customary rights to fishing recognised.
“In the circumstances, the Minister and Shell should be ordered to pay the applicants' cost of the application, such costs to include the costs attendant upon the employment of the counsels, where so employed,” Bloem said in the judgement.
In their application, the applicants argued that Shell does not have the necessary environmental authorisation in terms of the National Environmental Management Act (NEMA) to lawfully undertake seismic exploration activities in the area.
Tembeka Ngcukaitobi, SC, counsel for the Wild Coast communities and supporting NGOs, argued that Shell had failed completely to consult with the affected communities, despite the devastating impact that the seismic blasting will have.
Ngcukaitobi slammed Shell’s inadequate consultation under the Mineral and Petroleum Resources Development Act (MPRDA) as “farcical and a complete sham based on exclusion”.
He argued that when constitutional rights are at issue, “the balance of convenience favours the applicants. There is no amount of money that can offset the loss of constitutional rights”.
In response to Shell’s argument that the communities should have asked Mineral Resources Minister Gwede Mantashe for help, rather than seeking this interdict in urgent relief in court, 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”.
Meanwhile, Shell’s counsel Adrian Friedman maintained that there is no evidence of harm to marine life, that communities’ objections are “speculative”, and claims of cultural and spiritual harm merely “subjective”.
Shell held firm that the Environmental Management Programmed (EMP) 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”.
In conclusion, Friedman said that the litigation against Shell was unreasonable.