- The Eastern Cape High Court has handed down judgment granting Shell, Impact Africa and the Minister of Mineral Resources and Energy leave to appeal to the Supreme Court of Appeal.
This follows the leave to appeal hearing which took place on 28 November 2022 in which they appealed the historic judgment of the Makhanda High Court, handed down on 1 September 2022, which found that the exploration right granted by the Minister under the Mineral and Petroleum Resources Development Act (MPRDA) to allow Shell to conduct seismic surveys off the ecologically sensitive Wild Coast of South Africa, was unlawful.
In its judgment today, the court found that, while it could see no prospects of success for the appeal, it would grant leave to appeal because issues of such public importance should be heard before the higher courts. It also reiterated that the leave to appeal is granted for the entire judgment.
The applicants who took the matter to court, including Wild Coast communities, Sustaining the Wild Coast, All Rise, Natural Justice and Greenpeace Africa, remain confident in a higher court ruling in their favour.
In the Makhanda High Court, the main issues that we argued related to an exploration right granted to Impact Africa and Shell which would allow them to conduct seismic testing off the coastline – which the applicants argued was unlawful because of lack of meaningful public participation, lack of consideration of the cultural rights of communities and because an environmental impact assessment should have been conducted.
On appeal, Shell, Impact Africa and the Minister of Mineral Resources brought two preliminary issues: the delay by the communities and NGO partners in the bringing of the review and whether the communities and the NGO partners should have pursued an internal appeal to the Minister prior to approaching the Court – as is required by the Promotion of Administrative Justice Act (PAJA). They also argued that they followed the letter of the law in consulting with the public, and cannot be held to higher standards than that.
The court found that both applications “lacked reasonable prospects of success”. However, the court agreed with the parties that the significant importance of the matter justified a higher court hearing the issues.
The communities and NGO partners also sought leave to cross-appeal the court’s decision not to consider whether Shell and Impact Africa required an Environmental Authorisation prior to commencing their seismic survey. This is because a declarator will provide clarity on the scope and nature of the obligations under the National Environmental Management Act (NEMA), as well as the MPRDA, which will then give effect to Section 24 of the Constitution.
The cross-appeal has also been granted.
We expect the Supreme Court of Appeal to grant us a court date next year in which the arguments will be placed before them.
“Shell is trying to appeal against the planet and humanity, as if the environment and the people who safeguard it, have no right to be protected. The climate crisis is of great importance, they cannot make excuses any longer. We are ready to continue this fight.” Nonhle Mbuthuma, Amadiba Crisis Committee
“Greenpeace Africa is not deterred by the court’s decision to grant Shell leave to appeal. The outcome of this case will have far-reaching impacts on the livelihoods of local communities and the survival of biodiverse ecosystems, and we will continue to support the Wild Coast communities’ resistance against Shell and pursue the legal avenue to stop Shell. We must do everything we can to undo the destructive colonial legacy of extractivism, until we live in a world where people and the planet come before the profits of toxic fossil fuel companies.” Melita Steele, Greenpeace Africa Programme Director
“Given the novelty and significance of the judgment and its extraordinary importance for communities around the country that bear the brunt of extractivism and climate change, it is in the public interest for the Supreme Court of Appeal to rule on the matter. The battle for our clients continues.” Wilmien Wicomb, Legal Resources Centre
Author: Bryan Groenendaal
