Background

In early 2013 Impact Africa applied for an Exploration Right for petroleum resources in terms of section 79 of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA). The Application was accompanied by an Environmental Management Programme (EMPr) which was submitted for approval in terms of (the then) section 39 of the MPRDA. After submission of the EMPr, the Petroleum Agency of South Africa (PASA) accepted the application on 1 March 2013, and required a Public Participation Process to be conducted.

PASA and the Minister of Mineral Resources and Energy issued Impact Africa with the Exploration Right on 20 May 2014. This right was renewed in 2017 and for the second time in 2020, effective for a period of two years from August 2021.

Royal Dutch Shell PLC and its subsidiaries, as Operator of the Exploration Right, intend to commence with 3D seismic surveys for the exploration of petroleum resources in certain licence blocks off the Wild Coast region of South Africa.

According to the EMPr, the seismic survey involves extremely loud (220 decibels) underwater explosions or discharges at intervals of 10 to 20 seconds which are to continue 24 hours per day for four to five months. The EMPr provides that a vessel will tow an airgun array with up to 12 or more lines of hydrophones spaced 5 to 10 meters apart and between 3 and 25 meters below the water surface. The array can be upwards of 12,000 meters long and 1,200 meters wide.

Many prominent South African marine scientists have called on the government to halt the survey due to concerns about harmful impacts on South Africa’s marine ecosystems and coastal communities.

Two urgent applications were brought challenging the seismic surveys on behalf of interested and affected parties including local associations, environmental justice organisations and residents of the Wild Coast region.

Note that the Centre for Environmental Rights does not represent any of the parties in these matters.

Urgent interdict application brought by Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, Natural Justice and GreenPeace Environmental Organisation in the High Court of South Africa (Eastern Cape Division, Grahamstown) and represented by Cullinan & Associates Inc and Ricky Stone:

Letters:

• Letter to Minister of Forestry, Fisheries and Environment (23 Nov 2021)
• Letter to Minister of Mineral Resources and Energy and Petroleum Agency of South Africa (23 Nov 2021)

Pleadings:

• Notice of Motion (29 November 2021)
• Founding Affidavit of Tyrone Gower, president of Border Deep Sea Angling Association (First Applicant)
• Answering Affidavit of Hloniphizwe Mtolo, Country Chair of Shell Downstream (Pty) Ltd
• Supplementary affidavit of Ricky Stone, Attorney to the Applicants (2 December 2021)
• Shell’s supplementary affidavit

Confirmatory Affidavits:

• Confirmatory Affidavit – Climate, Risk GIS Specialist David Ogier
• 2. Second Applicant – CA- KMSBC-BDSAA
• 3. Third Applicant – CA – P Moodley
• 4. Fourth Applicant – CA – GPAF

Heads of Argument

• Applicants’ Heads of Argument (1 December 2021)
• First Respondent (Shell) Heads of Argument (1 December 2021)

Judgment

• Judgment of the High Court of South Africa (Eastern Cape Division, Grahamstown) (3 December 2021)
• Outcome: Acting Judge Govindjee, for the court, dismissed the application, with costs. The court held that the applicants had failed to establish one of the requirements for an interdict – a well grounded apprehension of irreparable harm. The court found that the evidence used by the Applicants to establish this ground was speculative and that the mitigation measures proposed by Shell mean that the seismic survey activities must remain ‘low-risk.’

Urgent interdict application brought by Sustaining the Wild Coast NPC, Mashona Dlamini, Dwesa-Cwebe Communal Property Association and four Others in the High Court of South Africa (Eastern Cape Division, Grahamstown) represented by the Legal Resources Centre and Richard Spoor Inc.

Pleadings:

• Notice of Motion (2 December 2021)
• Founding Affidavit of Sinegugu Zukulu (2 December 2021)
• Applicants’ Supplementary papers (7 December 2021)