Court refuses to interdict seismic survey on the basis that "irreparable harm" to marine species not proved.
Acting Justice Govindjee found that the applicants had successfully established that there had been no undue delay in bringing the case and the urgency of the matter justified the departure from the usual rules so that the matter could be heard urgently. In this regard he commented that he had taken account that "the public interest in this case is palpable".
After outlining the legal tests applicable to granting interim interdicts and the significance of determining whether the applicants or the respondents would suffer "irreparable harm" if the interim interdict was granted, the judge reviewed the evidence presented by the parties.
In his analysis of how the law should be applied to the facts of this case, Govindjee AJ expressed doubts as to whether the applicants would succeed in reviewing and setting aside the grant in 2014 of the exploration right (because of how much time had elapsed) or of the first renewal application because the lapsing of that renewal meant that the issue was now moot. However in relation to the second renewal application he found that the applicants had succeeded in establishing that they had prima facie prospects of success due to the apparently inadequate public participation.
However the court concluded that the applicants had failed to convince him that there was a reasonable apprehension of "irreparable harm" if the interdict were not granted and that given financial and other prejudice to Shell if the seismic surveys were delayed, the "balance of convenience" was in Shell's favour. Consequently he dismissed the application with costs, including the costs of two counsel.
The Applicants are dismayed that the court dismissed the application without granting their request to be allowed to return to court to make further representations and present expert evidence, and awarded costs against them despite the fact that the application was made in the public interest to protect the ocean and coastal environment. The Applicants had anticipated being able to present further expert evidence of irreparable harm on the return date. The application had to be made on a hyper-urgent basis (as a consequence of Shell's actions and the inactions of the Minister of Mineral Resources and Energy) which meant that it had not been possible for experts to finalise detailed reports and affidavits by the time the application was launched.
The Applicants will be discussing the judgment with their legal advisers with a view to deciding whether or not to apply for leave to appeal against these aspects of the judgment. In the interim we will be doing all we can to support the application made yesterday on behalf of Wild Coast communities who are seeking to interdict the seismic surveys on the basis that Shell does not have an environmental authorisation to undertake them.
Reactions from applicants:
"The decision to allow Shell to continue with its plans to destroy the Wild Coast is very disappointing. Not only will the blasting destroy precious biodiverse ecosystems, but it will also destroy the livelihoods of local communities, all in the name of profit," says Happy Khambule, Senior Climate and Energy Campaign Manager for Greenpeace Africa.
"We will continue to support the nation-wide 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," continues Khambule.
"The outcome is very unfortunate, especially since the judge did not recognise the urgency of the interdict and the immediate threat the seismic surveys pose to the environment, marine life and local communities," says Pooven Moodley, Executive Director of Natural Justice.
"Our fight to safeguard the Wild Coast is not over, and our bigger struggle for climate justice, and to resist oil and gas drilling in South Africa and across the entire continent is far from over. As activists, civil society and lawyers, we cannot relax – the climate crisis is upon us, and fossil fuel companies accelerating the crisis are posing a serious threat to the planet, our livelihoods, human rights and very existence. We will fight them on the beaches and in court," continues Moodley.
"Unthinkable. We're saddened by the result but happy we did all we could under the circumstances. The seismic survey may go ahead, but there's going to be one hellava shindig before mining starts," says John Rance, Chair of Kei Mouth Skiboat Club (KMSBC)
"Shell and its shareholders should be ashamed of themselves. We should all be telling our investment advisors and pension funds to disinvest from Shell. It's the only language they understand," he continued.
"We are extremely disappointed with the outcome of this hearing. This is not the end, we will continue to fight for our local people, their heritage and the environment. We call on South Africans to stand together and protest this invasive and environmentally harmful seismic survey, as well as any future mining plans," says John Luef of the Border Deep Sea Angling Association.
Acting Judge Avinash Govindjee
Shell Counsel: Adrian Friedman and Sarah Pudifin-Jones
Ministry of Mineral Resources and Energy Counsel: Senior Counsel, Albert Beyleveld
Applicants' Counsel: Senior Counsel: Willie Duminy and Dawid Welgemoed
The applicants are: Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, Natural Justice and Greenpeace Africa.