At 14h00 on 10 February 2022 Shell and HCI will challenge the interim interdict as per Judge Bloem’s judgement from 28 December 2021 by seeking leave to appeal. They are joined by the DMRE Minister Mantashe.
WESSA Algoa Bay Branch Chair and Algoa Bay Ocean Stewards Founder Member, Gary Koekemoer said today; “In essence they hold that the “learned judge erred” on every aspect of his judgement, amongst other, from deciding the communities were not consulted, to establishing a prima facie right to the relief, to assessing that irreparable harm would occur to the communities and the sea-life, to the evidence of the expert scientists, to underestimating the impact of the survey mitigation measures, and including weighing up the prejudice (harm) to Shell/HCI would far outweigh that suffered by the applicants. Basically they hold that Judge Bloem got everything wrong.
With the Amazon Warrior already out of South African waters, and the declaration by Shell that the survey would be postponed to the next year at the earliest, it is significant that Shell and HCI are seeking to challenge the interdict now and not wait for a full review as was part of the ruling. Clearly they are concerned that elements within Judge Bloem’s judgement set a precedent going forward. It also means the applicants will incur more costs in defending their rights to their livelihood and cultural practices and the public’s right to a healthy environment. We await with interest as to what the next round brings.”
At the time of writing attorneys were seeking permission to live-stream the appeal which will be livestreamed from here: https://www.youtube.com/c/FromPortElizabeth/videos
The two appeals are reproduced below.
Minister Of Mineral Resources And Energy, Gwede Mantashe’s Leave to Appeal – 10 February 2022:
IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, GRAHAMSTOWN)
Case No: 3491/2021
In the matter between:-
SUSTAINING THE WILD COAST NPC – First Applicant
MASHONA WENT DLAMINI – Second Applicant
DWESA-CWEBE COMMUNAL PROPERTY ASSOCIATION – Third Applicant
NTSHINDISO NONGCAVU – Fourth Applicant
SAZISE MAXWELL PEKAYO – Fifth Applicant
CAMERON THORPE – Sixth Applicant
ALL RISE ATTORNEYS FOR CLIMATE AND THE ENVIRONMENT NPC – Seventh Applicant
AND
MINISTER OF MINERAL RESOURCES AND ENERGY – First Respondent
MINISTER OF FORESTRY, FISHERIES AND ENVIRONMENT – Second Respondent
SHELL EXPLORATION AND PRODUCTION SOUTH AFRICA BV – Third Respondent
IMPACT AFRICA LIMITED – Fourth Respondent
BG INTERNATIONAL LIMITED – Fifth Respondent
FIRST RESPONDENT’S APPLICATION FOR LEAVE TO APPEAL (AS AMENDED)
BE PLEASED TO TAKE NOTICE that the First Respondent intends to apply for leave to appeal against the whole of the Judgment and Order delivered by His Lordship Mr Justice Bloem on the 28 th December 2021. TAKE NOTICE FURTHER that the grounds upon which leave to appeal will be sought are the following:
1. An appeal would have a reasonable prospect of success for the reasons set out in the Fourth and Fifth Respondents’ Application for Leave to Appeal.
2. The grounds set out in the notice filed on behalf of the Fourth and Fifth Respondents are supported by the First and Second Respondents and incorporated by reference herein.
3. Having regard to the nature of the dispute and considerations of public interest it is further submitted that there are compelling reasons why an appeal should be entertained as envisaged in terms of Section 17(1)(a)(ii) of the Superior Courts Act 10 of 2013.
4. Although the Order granted by His Lordship Mr Justice Bloem (an interdict preventing any seismic survey operations pending the finalization of Part B of the Notice of Motion) was an interim Order, it is submitted that the Judgment and Order is appealable in that:
4.1. Such interim order is final in effect and definitive of the rights of the parties.
4.2. The interests of justice reqmre an appeal to be heard, more particularly having regard to the public interest factor and the fact that the interdict has an immediate and substantial effect and is ongoing and irreparable.
5. Accordingly it is respectfully submitted that there are reasonable prospect of success and that an appeal court will reach a different conclusion to the finding of His Lordship Mr Justice Bloem.
6. The First Respondent therefore seeks an Order that leave to appeal be granted to the Supreme Court of Appeal alternatively a Full Bench of the Eastern Cape Division of the High Court and that the costs of this application be costs in any such appeal.
DATED at GRAHAMSTOWN this the 27th day of January 2022.
Impact Africa Limited And BG International Limited’s Leave to Appeal – 10 February 2022:
IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, GRAHAMSTOWN)
Case No: 3491/2021
In the matter between:-
SUSTAINING THE WILD COAST NPC – First Applicant
MASHONA WENT DLAMINI – Second Applicant
DWESA-CWEBE COMMUNAL PROPERTY ASSOCIATION – Third Applicant
NTSHINDISO NONGCAVU – Fourth Applicant
SAZISE MAXWELL PEKAYO – Fifth Applicant
CAMERON THORPE – Sixth Applicant
ALL RISE ATTORNEYS FOR CLIMATE AND THE ENVIRONMENT NPC – Seventh Applicant
AND
MINISTER OF MINERAL RESOURCES AND ENERGY – First Respondent
MINISTER OF FORESTRY, FISHERIES AND ENVIRONMENT – Second Respondent
SHELL EXPLORATION AND PRODUCTION SOUTH AFRICA BV – Third Respondent
IMPACT AFRICA LIMITED – Fourth Respondent
BG INTERNATIONAL LIMITED – Fifth Respondent
FOURTH AND FIFTH RESPONDENT’S APPLICATION FOR LEAVE TO APPEAL (AS AMENDED)
PLEASE TAKE NOTICE THAT application will be made by “Shell” and “Impact” (fourth and fifth respondents in the application under the above-mentioned case number), on a date and at a time to be arranged with the Registrar, for leave to appeal to the Supreme Court of Appeal, alternatively a Full Bench of the Eastern Cape Division of the High Court, against the whole of the judgment and order of His Lordship Mr Justice Bloem in the above-mentioned application delivered on 28 December 2021.
TAKE NOTICE FURTHER that the grounds on which leave to appeal will be sought are the following:
Consultation
1. The learned judge erred in concluding that a valid consultation process had not been followed prior to the approval of the environmental management programme (“EMPr”) on 17 April 2014.
2. The learned judge ought to have held that a proper consultation process, as envisaged by section 79 of the Mineral and Petroleum Resources Development Act 28 of2002 (“the MPRDA”) and regulations 51 and 52 of the regulations made under that Act (“the MPRD Regulations”), was followed before the EMPr was approved.
3. The learned judge, in any event, erred in making a finding that his conclusion that a valid consultation process had not been followed before the EMPr was approved meant that the applicants had established a prima facie right for the purposes of their interim-interdict application .
4. The learned judge ought to have held that, in Part B of their application, the applicants did not challenge the validity of the EMPr, or the exploration right granted by the Minister of Mineral Resources on 29 April 2014 . Therefore, even if it were correct that a proper cons ultation process was not followed before the EMPr was approved, this did not establish a prima facie right to the relief in Part B.
5. The learned judge erred in placing reliance on the decision of the Constitutional Court in Bengwenyama Minerals (Pfy) Ltd v Genorah Resources (Pty) Ltd 2011 (4) SA 113 (CC) (“Bengwenyama”).
6. The learned judge ought to have held that Bengwenyama was distinguishable because in that case the parties said to be owed the duty of consultation were landowners who were, as a matter of law, in a significantly different position to the applicants in the present case.
7. The learned judge erred in holding that, despite the failure of the applicants to impugn the validity of the EMPr or exploration right (including the exploration right renewed under s 81 of the MPRDA) in Part B of their application, the applicants [unclear] to amend their notice of motion [unclear] review of the renewed exploration right (and therefore render the consultation process relevant to the relief sought in Part B).
8. The learned judge ought to have held that:
8.1 It is impermissible for a party seeking interim interdictory relief pending an application in Part B to rely on a prima facie right to relief which has not been pleaded and which is not reflected in the notice of motion in Part B.
8.2 Amendments to notices of motion and the introduction of supplementary causes of action after the launching of an application may not be obtained as of right and require the leave of the Court. It would therefore be improper for the court hearing Part A to determine, in advance of a formal application to amend the relief in Part B, that an amendment could be obtained.
8.3 Therefore, the Court hearing Part A was obliged to approach the matter on the basis of the pleadings as they stood at the time of the hearing of the application in Part A.
8.4 Approached on this basis, it would have been improper to approach the question of a prima facie right from the premise that the validity of the renewed exploration right and/or the EM Pr was attacked in Part B.
The validity of the exploration right
9. The learned judge erred in concluding that, on the basis of his finding that there had been inadequate consultation before the exploration right was issued, the exploration right was unlawful and invalid.
10. The learned judge ought to have held that:
10.1 No challenge to the validity of the exploration right was made by the applicants in Part B of their notice of motion.
10.2 On this basis it would have been improper for the court hearing Part A to make any findings, in particular final findings, on the validity of the exploration right.
10.3 Even if the applicants had challenged the validity of the exploration right in Part B of their notice of motion, it would be improper of the Court hearing Part A to make final findings on its validity.
Constitutional rights as prima facie rights/reliance on the OUT A judgment
11. The learned judge erred in concluding that the applicants had “established constitutional rights worthy of protection by an interim interdict” (at para 34 of the judgment).
12. The learned judge ought to have held that:
12.1 even when asserting reliance on a constitutional right, applicants in interim-interdict proceedings have to establish a prima facie right to the relief sought in Part B; and
12.2 since the applicants’ reliance on the rights in sections 24, 30 and 31 of the Constit-ut1on d1d -not support their claim for relief in Part B, reliance could not be placed by the applicants on these rights, in the abstract, in support of the relief in Part A.
13. The learned judge erred in relying on the statement of Moseneke DCJ in National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) (“OUTA”) at para 46 to the effect that “if the right asserted in a claim for an interim interdict is sourced from the Constitution, it would be redundant to enquire whether that right exists” (at para 34 of the judgment).
14. The learned judge ought to have held that:
14.1 Moseneke DCJ’s statements in paragraph 46 of OUTA were made in the context of a discussion of the appropriate test to be applied in interim-interdict applications against the state (in paragraphs 41 to 47 of OUTA).
14.2 Moseneke DCJ’s statements in paragraph 46 of the judgment, understood in the context of paragraphs 41 to 47 of the judgment, did not mean to convey a conclusion that merely by asserting a constitutional right in interim-interdict proceedings, an applicant should be held to have established a prima facie right.
14.3 Rather, understood in context, Moseneke DCJ intended to convey the conclusion that, where an applicant places reliance on the violation of a constitutional right to support his or her claim for relief in Part B, it would be unnecessary to conduct an enquiry as to whether the right exists. It would still be necessary, however, to enquire as to whether a factual basis for the violation of the right, sought to be protected in Part B, had been established.
Irreparable harm
15. The learned judge erred in concluding that, because Shell and Impact did not challenge the applicants’ allegation of the importance to them of their cultural and spiritual beliefs, the applicants had established a reasonable apprehension of irreparable harm to their cultural and spiritual rights (see paragraph 38 of the judgment).
16. The learned judge ought to have held that, even though it was common cause that the applicants held genuine beliefs about their culture and spiritual life, the applicants had failed to establish that any irreparable damage to their cultural and spiritual beliefs would be caused by the seismic survey.
17. The learned judge erred in finding that, by adducing the evidence of “ten experts” (see paragraph 44 of the judgment), the applicants had established a reasonable apprehension of irreparable damage to marine life.
18. The learned judge ought to have held that, even on the version presented by the “ten experts”, no evidence had been adduced to establish a reasonable apprehension that there would be any irreparable or irreversible damage to marine life as a result of the seismic survey.
19. The learned judge erred in failing to accept that the mitigation measures implemented by Shell and Impact during the conduct of the survey would serve to mitigate against the causing of irreparable harm.
20. The learned judge ought to have held that:
20.1 The mitigation measures adopted by Shell and Impact were some of the most advanced in the world , going far beyond both international standards and the requirements of the EM Pr itself.
20.2 The use of the mitigation measures would have reduced the harm caused by the seismic survey to such an extent that any harm relied upon by the applicants would not be recognisable for the purpose of obtaining interim relief.
21. The learned judge erred in finding that the applicants had established that the seismic survey would negatively impact their customary fishing rights and livelihood as fishers, sufficient to support a claim of irreparable harm.
22. The learned judge ought to have held that:
22.1 The survey was to be conducted at a distance of between 20 to 80 kms from the shoreline.
22.2 Shell and Impact presented peer-reviewed evidence to demonstrate that the fishing populations would not be harmed by the seismic survey and the livelihoods of the applicants would not therefore be threatened.
22.3 In that context, the applicants adduced insufficient evidence that the survey would cause any harm to their fishing activities or their cultural and spiritual practices, let alone irreparable harm.
The impact of hydrocarbons
23. The learned judge erred in taking into account, for the purpose of establishing irreparable harm, the evidence of the applicants about the harms of hydrocarbon extraction (as he did, for instance, in paragraph 44 of the judgment).
24. The learned judge ought to have held that:
24.1 for the purposes of assessing the interim-interdict application, only the harms alleged to arise from the seismic survey could be taken into account; and
24.2 the alleged harms of hydrocarbon extraction would only become relevant should Shell and Impact apply, in due course, for permission to extract any hydrocarbons discovered as a result of the seismic survey.
Expert evidence
25. The learned judge erred in dismissing the technical and scientific evidence presented in the answering affidavit (see paragraph 50 of the judgment).
26. The learned judge ought to have held that:
26.1 Shell was required to prepare its answering affidavit, in response to almost 500 pages of allegations in the founding affidavit, under extreme time pressure.
26.2 In doing so, it rebutted the evidence presented by the applicants with reference to numerous academic and expert articles and other evidence, including in some cases authored by the applicants’ experts.
26.3 The evidence in the answering affidavit was, in any event, confirmed to a large extent by ERM, which is indisputably an independent and qualified expert.
26.4 The approach adopted by Shell in the answering affidavit was, in any event, the same as the approach adopted by the applicants’ experts;
which was to rely on peer-reviewed published articles, written by persons other than the deponent to the relevant affidavit or confirmatory affidavit.
26.5 The evidence presented by Shell in its answering affidavit should accordingly have been accepted.
27. The learned judge erred in accepting the correctness of the allegations made by the various persons whose evidence was presented by the applicants to support their allegations of harm.
28. The learned judge ought to have held that:
28.1 None of the applicants’ witnesses, other than Dr Nowacek, is an expert in seismic surveys or in noise attenuation.
28.2 The conclusions reached by the applicants’ experts are hotly contested and were based on secondary evidence which was taken out of context.
28.3 The methodology used by the applicants’ witnesses was the same as the methodology used by Shell and Impact; that is to quote peer-reviewed published research, prepared by persons other than the deponent to the affidavit or confirmatory affidavit.
28.4 The detailed expert evidence presented by Shell and Impact (in the form of numerous articles, papers and documents) demonstrates that the harm relied upon by the applicants is speculative and in most cases does not adequately confront, let alone address, the mitigation measures which Shell and Impact were implementing while the survey was being conducted.
The 2020 audit
29. The learned judge erred in accepting the evidence of Mr Burger in so far as he criticised the findings of the 2020 compliance audit (see paragraph 59 of the judgment).
30. The learned judge ought to have held that:
30.1 Mr Burger is not qualified to criticise the 2020 audit in the way that he did in his affidavit attached to the supplementary founding affidavit.
30.2 The 2020 audit was prepared by ERM, recognised and qualified experts in the field.
30.3 Taking into account the onus resting on the applicants, the findings in the 2020 audit report should have been taken to have been established.
The 2013 EMPr
31. The learned judge erred in accepting the evidence of various persons on which the applicants placed reliance to the effect that 2013 EMPr is outdated.
32. The learned judge ought to have held that:
32.1 The conclusions in the 2013 EMPr were confirmed in the 2020 audit.
32.2 The mitigation measures introduced by Shell and Impact, in any event, exceeded the requirements of the 2013 EMPr substantially.
32.3 The applicants’ criticisms of the 2013 EM Pr were therefore insufficient to establish either irreparable harm or prejudice relevant to the balance of convenience.
The balance of convenience
33. The learned judge erred in his approach to the test applicable to these proceedings; in particular, his premise that the applicants had established a strong prima facie right and accordingly had a lesser burden of showing prejudice (see paragraph 66 of the judgment).
34. The learned judge ought to have held that:
34.1 The issue of consultation was irrelevant to the relief pleaded in Part B of the applicants’ notice of motion.
34.2 The legal issue on which Part B turns – ie, the proper interpretation of NEMA and the MPRDA and whether a separate environmental authorisation under NEMA was required before the survey could be conducted – is complicated, but when the relevant legislation is viewed in its totality, the intention of the legislature is clear and Shell and Impact already hold all the necessary permissions required under both the MPRDA and NEMA.
34.3 The applicants therefore retained balance of convenience favoured them.
35. The learned judge erred in finding, in effect, that any harm caused to Shell and Impact as a result of the interim interdict would be caused by their own fault because of their failure to consult with the applicant communities.
36. The learned judge ought to have held that:
36.1 The question of consultation is irrelevant to the question of prejudice.
36.2 For the purposes of assessing the balance of convenience, the prejudice to be suffered by the respective parties had to be balanced.
36.3 To the extent that the applicants could point to any prejudice as a result of not being consulted, this was dwarfed by the prejudice which the learned judge accepted that Shell and Impact would suffer as a result of the interim interdict being granted.
36.4 The applicants’ allegations on consultation, even if accepted, could not be used as a basis to make a finding that the balance of convenience favoured them.
37. The learned judge erred in finding that the harm on which the applicants relied in their founding papers led to a conclusion that the balance of convenience favoured the applicants.
38. The learned judge ought to have held that, even if the harm mentioned in the founding papers was not speculative, it was far outweighed by the harm to Shell and Impact arising from the granting of the interim interdict.
39. The learned judge therefore ought to have held that the balance of convenience overwhelmingly favoured Shell and Impact.
Alternative remedies
40. The learned judge erred in concluding that the applicants had no alternative remedy.
41. The learned judge ought to have held that sections 90 and 47 of the MPRDA conferred on the applicants a potential mechanism to prevent the seismic survey from proceeding, which ought to have been exhausted by the applicants before they approached the Court for urgent interim relief.
42. The learned judge erred, in finding that the proposed alternative remedies would be inadequate, by relying on comments apparently made by the Minister of Mineral Resources and Energy on Twitter as evidence that the Minister would have pre-judged the matter.
43. The learned [unclear]
43.1 The comments apparently made by the Minister on Twitter were, on the applicants’ own version, made on 9 December 2021.
43.2 The urgent application was launched on 2 December 2021.
43.3 The applicants, at the time when launching the urgent application, had no reason to believe that the Minister had pre-judged the issue of whether to exercise his powers under sections 47 and 90 of the MPRDA.
43.4 There was, in any event, insufficient evidence (derived from Twitter or otherwise) to demonstrate that the Minister was likely to pre-judge the issue.
43.5 The applicants could not, therefore, approach the Court for urgent relief without first exhausting the alternative remedies.
Costs
44. Because the learned judge erred in granting the application, the learned judge erred in granting a costs order in favour of the applicants.
45. The learned judge ought to have dismissed the application with costs, including the costs of two counsel.
46. The learned judge [unclear] counsel.
47. The learned judge ought to have held that, since he had already held that the applicants had at all times employed two counsel, and since the third counsel was brought in to replace the second counsel who was ill, it would never have been appropriate to award the costs of more than two counsel.
Reasonable prospects of success on appeal
48. For the reasons given above, there is a reasonable prospect that an Appeal Court will reach a conclusion different to the learned Judge.
DATED at GRAHAMSTOWN this the 27th day of January 2022.
Video: Shell Throw a HEAVY Book at Judge Bloem in Wild Coast Appeal – FIRST PART
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Video: Shell Throw a HEAVY Book at Judge Bloem in Wild Coast Appeal – SECOND PART
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