On November 29, 2021, four environmental and human rights organizations (Sustaining the Wild Coast NPC, Mashona Dlamini, Dwesa-Cwebe Communal Property Association and four others) filed an application in the High Court of South Africa (Eastern Cape Division, Grahamstown) against respondents Minister of Mineral Resources and Energy, Minister of Environment, Forestry and Fisheries, Shell and Impact Africa. The application sought an interdict prohibiting the respondents from proceeding with the seismic survey off the eastern coast of South Africa from 2021-2022. The seismic survey pursued by Shell and Impact Africa followed an exploration right granted on April 29, 2014. It aimed at providing imaging of the subsurface to determine whether there might be energy reserves below the sea floor. To succeed in their application, the applicants must establish: (i) at least a prima facie right (ii) a reasonable apprehension of irreparable and imminent harm of the right if the interim interdict is not granted; (iii) balance of convenience; and (iv) lack of an alternative satisfactory remedy.
On December 17, 2021, the South African High Court held a hearing on the case. The Court delivered the judgement on December 28, 2021. The Court found that these requirements for an interdict were satisfactorily met by the applicants. It ruled that the exploration right which was awarded without regard to the applicants’ right to meaningful consultation constitutes a prima facie violation of their right which deserves to be protected by way of an interim interdict. The Court agreed that there is reasonable apprehension of irreparable harm and imminent harm of the right as the seismic survey will promote extraction of fossil fuels and adversely impact climate change, the applicant communities’ cultural practices, ocean conservation, and the spiritual and sustainable use of ocean for healing and fishing purposes. It acknowledged the concern of the communities that seismic survey will lead to exploration without climate impact assessment, a development that is inconsistent with South Africa’s agreement at the 2021 COP26 to move away from hydrocarbon-based energy towards climate friendly renewables. While finding the balance of convenience to be in favor of the applicants, the Court reasoned that the financial loss that respondents, especially Shell and Impact Africa, are likely to suffer cannot compare with the adverse effects of infringement of the constitutional rights of the communities. Finally, the Court reasoned that the procedure contemplated under section 47 of the MPRDA and argued by the respondents as a remedy is unacceptable in that it is a time-consuming procedure. If followed, it would allow the continuous threat of infringement of the applicants’ rights. A hearing on the main application is scheduled for May 2022.
Shell and Impact Africa appealed the judgment of the High Court. On February 17, 2022, the judge dismissed the application.