Wild Coast seismic survey: Judgement reserved in leave to appeal attempt

Judgement has been reserved in the drawn-out saga that last saw the Makhanda High Court putting an end to threats of a seismic survey along the Wild Coast.

On Monday, appellants Shell South Africa, Impact Africa and Mineral Resources and Energy department Minister Gwede Mantashe argued in court why they should be granted leave to appeal the 1 September judgement.

The judgement found that Mantashe authorising Shell to conduct exploratory surveys along the Eastern Cape coast was procedurally unfair.

ALSO READ: Wild Coast seismic survey fears extinguished after court sets application aside

Among the reasons for the judgement was the lack of consideration for communities’ spiritual and cultural rights, their rights to food, and the potential environmental impacts.

Shell, Mantashe and Impact Africa on Monday appealed the judgement, saying applicants were “unduly delayed” in bringing the application for review, meaning the Promotion of Administrative Justice Act (Paja) would not apply.

The appellants also claimed the consultatoin process carried out with communities prior to the survey commencing was not flawed, that the court “erred in its findings”, and the “harm to the applicants spiritual and cultural rights are of no bearing in a review”.

READ MORE: EXPLAINER: What’s the fuss about Shell’s seismic survey?

Cautious optimism

Environmental lawyer and Cullinan & Associates director Cormac Cullinan told The Citizen he, the Legal Resources Centre and Richard Spoor Attorneys believed prospects for success regarding the appeal were low.

“We are confident that even if leave to appeal is granted, that the Supreme Court of Appeal will uphold the important precendence of the full bench of the Eastern Cape HIgh Court. And if they do so, it will make the precedent binding on all divisions.”

He said judgement being reserved was a potential advantage, and that more information on the decision by the judges will likely only emerge in December.

Cullinan conceded the case did raise issues of public interest.

Shell’s exploration right was granted in 2013, in terms of the Mineral and Petroleum Resources Development Act.

Before the survey commenced, Impact Africa failed to undertake an environmental impact assessment, and did not obtain environmental authorisation in terms of the National Environmental Management Act.

ALSO READ: Shell: Mantashe loses appeal against Wild Coast seismic survey

First interdict

The first interdict was heard in the Grahamstown Court in Makhanda on 17 December, and was brought against the petroleum giant and Mantashe by Natural Justice, Greenpeace Africa, Border Deep Sea Angling Association and Kei Mouth Ski Boat Club.

Acting Judge Avinash Govindjee dismissed the first interdict with costs, after ruling the arguments presented by the applicants ​​were not enough to convince him that the planned 3D seismic survey should not take place. 

Shell and Mantashe were hit with a fresh urgent interdict after the first dismissal, this time by the Amadiba Crisis Committee (ACC), Sustaining the Wild Coast and the Dwesa-Cwebe Communal Property Association.

Mantashe suggested in court papers the communities concerned about Shell’s seismic drilling should have exhausted all options, including an internal appeal before taking legal action.

But Advocate Tembeka Ngcukaitobi SC, who is representing concerned community organisations, said even if residents took the matter up through an internal appeal, Mantashe had clearly “nailed his colours to the Shell mast”.

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