A three-day legal challenge against Shell and Impact Africa’s seismic surveys off the South African Wild Coast has begun at the Port Elizabeth High Court. The challenge will include the review of the exploration right that the Department of Mineral Resources and Energy (DMRE) granted for the activities back in 2014.

The case is being heard by judges Mbenenge JP, Nhlangulela DJP and Norman J, and the court will work to determine whether Shell required an environmental authorization under the National Environmental Management Act (NEMA) and if its exploration right was lawfully awarded.

Part A of the case saw Shell interdicted from undertaking seismic surveys until Part B is heard.

Part B of the court case, brought on behalf of Wild Coast communities and small-scale fishers represented by the Legal Resources Centre (LRC) and Richard Spoor Attorneys, began on 30 May, with 1 June being the final day of the hearing.

On 29 November 2021, Natural Justice and Greenpeace Africa, with two other applicants, represented by environmental law firm Cullinan & Associates, applied to the Grahamstown High Court seeking an urgent interim interdict to stop the kick-off of the seismic testing.

The application was unsuccessful, however, a successful interdict was obtained a few weeks later.

Due to the similarities between the two court cases, Natural Justice and Greenpeace Africa filed an application this February requesting that their case for judicial review be joined with the application in the previous case.

The government ministries and Shell had no objections to the application, while Impact Africa, having now split legal representation from Shell, objected to the joinder application.

Key arguments

The applicants are representing four key arguments in court, with the first two being about the Environmental Management Program (EMPr). The applicants state that Shell violated the Mineral and Petroleum Resources Development Act (MPRDA) and the National Environmental Management Act (NEMA) by commencing the surveys without an environmental authorization since an EMPr does not displace NEMA nor constitute an environmental authorization under NEMA, as well as that the EMPr is outdated and contains significant information gaps.

Furthermore, the applicants argue that DMRE officials ignored the provisions of the National Environmental Management: Integrated Coastal Management Act (ICMA) and granted the exploration right without considering relevant provisions and failed to consider the climate change impacts of exploring for and exploiting oil and gas off the Wild Coast.

The court also heard that the EMPr does not take into account the constitutional rights of the relevant communities and that Shell meeting with a representative of three traditional kings in the Eastern Cape does not represent all communities affected by the surveys.

“Inside and outside of the courtroom, communities impacted by Shell’s unscrupulous behaviour sent a clear, unified message today: South Africa does not need Shell’s climate-hostile false promises. South Africa needs solutions, like a just transition to renewable energy,” Thandile Chinyavanhu, Greenpeace Africa Climate and Energy campaigner, said at the hearing.

According to Greenpeace, if the case is successful, several flawed decisions on the part of the DMRE will be set aside and Shell and Impact Africa will be prohibited from undertaking seismic surveys under the given exploration right.

The case also seeks a declaration that an EMPr under the MPRDA is not equivalent to an environmental authorization under NEMA. Therefore, a holder of an exploration right under the MPRDA cannot undertake any seismic survey if it has not been granted environmental authorization.

This is set to make sure that future seismic testing abides by the law, including appropriate public participation processes, need and desirability assessments and environmental impact assessments that obtaining an environmental authorization under NEMA requires. 

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