FOR IMMEDIATE RELEASE
CAPE TOWN: 14 May 2024
The Voices of the Small Communities Will be Heard
“This case is about making sure that profit making does not override human rights. It is about making sure that the voices of rural communities are as important as the voices of the elite. The case is not […] about Shell.” – Nonhle Mbuthuma from the Amadiba Crisis Committee (Xolobeni).
On Friday, 17 May 2024, the Supreme Court of Appeal will hear arguments from Shell, Impact Africa, and the Minister of Mineral Resources and Energy (‘the Applicants’) as to why the 2022 decision of a full bench of the Eastern Cape High Court to set aside the decision to grant an exploration permit to Impact, should be overturned. The Legal Resources Centre (‘LRC’) and Richard Spoor Inc, on behalf of Sustaining the Wild Coast NPC, Dwesa-Cebe Communal Property Association, 3 small-scale fishers from Port St-Johns and Kei Mouth, community members from Xolobeni , and All Rise Attorneys for Climate and Environmental (‘the Respondents’), will defend the High Court’s decision, and also argue that the High Court should, in fact, have gone further in declaring that an Environmental Authorisation was required for the permit to be awarded.
The matter was initially heard in the Eastern Cape High Court in two parts:
In December 2021, the communities successfully applied for an interim interdict prohibiting Shell from conducting seismic survey operations off the Wild Coast of South Africa pending the finalisation of the challenge to the permit.
On 22 May 2022, the Judge President Mbenenge, writing for a full bench, held that “it is demonstrably clear that the decisions [to grant the permits] were not preceded by a fair procedure; the decision-maker failed to take relevant considerations into account and to comply with the relevant legal prescripts.” Therefore, the decisions to grant and subsequently renew the exploration right were reviewed and set aside.
In seeking to overturn this decision, the appellants argue that the Respondent communities’ delay in bringing the review application was too long; and that the Minister’s decision to grant the exploration right was not impaired by material irregularities and should not have been set aside.
The communities contend that Impact and the Minister did not consult with the communities and individuals who will be most directly affected at all, and made no reasonable efforts to do so, as is required. This is particularly egregious, given that the constitutional rights to food, culture and religion of the affected communities are threatened by the development.
As Justice Bloem highlighted in his 2021 judgment:
“the financial loss that Shell and Impact Africa are likely to suffer cannot be weighed against the infringement of the constitutional rights in question […] The breach of those constitutional rights threaten the livelihoods and well-being of the applicant communities as well as their cultural practices and spiritual beliefs. Where constitutional rights are in issue, the balance of convenience favours the protection of those rights.”
Contact details:
Legal Resources Centre:
Puleng Moisa – puleng@lrc.org.za
