A protest outside Shells offices in Bryanston, 1 December 2021 by Extinction Rebellion against the companies seismic survey operations along the wild coast of South Africa. Picture: Neil McCartney
The second urgent interdict brought against Shell to stop its seismic survey currently taking place along the Wild Coast has been hailed as a rare and massive victory for surrounding communities and the environment.
Judge Gerald Bloem found in the Makhanda High Court on Tuesday that Shell – which had a duty to meaningfully consult the applicant communities, namely the Umgungundlovu, Port St Johns, Kei Mouth and Dwesa-Cweba communities, among others – had failed to do so.
A Shell spokesperson was quoted by Reuters as saying the petrochemical giant respected the court’s decision, and paused the survey while the judgement was reviewed by their legal counsel.
As contained in sections 24, 30, and 31 of the Constitution, the applicants hold customary rights, which include fishing rights, as well as deep spiritual and cultural connections to the ocean.
These issues were not addressed in Shell’s answering affidavit.
Failing to consult these communities was found by Judge Bloem to constitute a prima facie right, deserving to be protected by an interim interdict.
Due to the lack of consultation, it was found that Shell’s exploration right 12/3/252 was awarded through a flawed process, and was declared unlawful and invalid.
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For now, the survey cannot continue until Part B of the application – dealing with whether Shell requires environmental authorisation obtained under the National Environmental Management Act – has been determined by a court.
Unlike the first interdict against Shell, Judge Bloem found the applicants’ evidence regarding the irreparable threat of harm to marine life as a result of conducting the survey satisfactory.
Department of Minerals and Energy Minister Gwede Mantashe and Shell were thus ordered to pay applicant costs.
Although the interim interdict could be appealed, it will not be suspended at the moment.
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NPO Sustaining the Wild Coast’s Sinegugu Zulu said the interdict was a reminder that constitutional rights “belong to the people and not to government”.
“The only way that we can assure that the rights of indigenous people are living – and not just written on paper – is if we challenge government decisions that disregard these rights.”
“The case is not just about Shell – it is about both protecting human rights and animal rights which are both enshrined in the Constitution.
“As coastal communities, we have relied on the sea for centuries,” Amadiba Crisis Committee’s Nonhle Mbuthuma said after the landmark judgement.
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One of the attorneys instructing the applicants’ legal counsel, Legal Resources Centre’s Wilmien Wicomb, said the interdict was a culmination of the struggle communities along the Wild Coast had in recognising their “customary rights to land and fishing”, and respecting those processes.
“The Makhanda High Court reminded the state and Shell today, once again, that the indigenous rights of communities are protected by the Constitution from interference, no matter how powerful the intruders are.”
Amadiba Crisis Committee’s Siyabonga Ndovela said the successful interdict was not just a decision for residents of the coast, but for all South Africans.
“A decision against Shell is a decision to protect the ocean – which is ourselves.”