Shell hauled back to court

Wild Coast communities and environmental justice organisations will be taking the multinational oil and gas company, Shell, to court again to prevent the company from renewing its offshore exploration rights for oil and gas.

The court battle between Wild Coast communities, Wild Coast small-scale fishers, Sustaining the Wild Coast, Natural Justice, and Greenpeace Africa against Shell started in 2021.

The Department of Mineral and Petroleum Resources granted Shell and Impact Africa permission to conduct exploration activities in 2021. 

The community took the decision to the Makhanda High Court, arguing that they had not been sufficiently informed.

They also argued that the department failed to consider the livelihoods of fishermen and the impact of the exploration on climate change. 

The court ruled in favour of the applicants, revoking Shell’s exploration permission. Judge Nathan Ponnan, who handed down the judgment, agreed that public consultation was not sufficient. 

The judge said that Shell’s process of publishing notices in local newspapers in both English and Afrikaans did not qualify as sufficient communication. 

“Few people in the respondent communities read English and virtually no-one speaks Afrikaans. The majority speak isiXhosa or isiMpondo,” said Ponnan.

He added that the majority of communities do not read newspapers, and rather get their news and information through the radio. 

The exploration rights had been originally granted to Shell in 2014, before regulations regarding environmental authorisation were in place. 

The High Court argued that the company was now required to obtain this authorisation. Additionally, the court found Minister Gwede Mantashe to be biased in favour of Shell. 

Shell refuted these claims, arguing that the minister was objective, the environmental authorisations were not legally required, and that the public consultation process was sufficient. 

Shell fights back

The company took the matter to the Supreme Court of Appeal to challenge the ruling in June 2024. 

The Supreme Court of Appeal dismissed Shell’s appeal, but allowed Shell to submit a renewal application for the exploration rights. 

The court was concerned about the “chilling effect” that revoking the rights would have on foreign investment.

These concerns were shared by Minister Gwede Mantashe, who spoke at the opening of parliament in July 2024 on the subject. 

He accused these environmental organisations of being “foreign-funded” and having an “anti-development agenda” for South Africa. 

“Our country is endowed with petroleum deposits that are not yet exploited,” he said. 

“We must accept, unreservedly, that we need responsible mining and petroleum exploration that is conscious of preserving the environment while accelerating development.”

South Africa is a heavy importer of petroleum products and crude oil, with a dependence that has become more severe with the closing of local refineries.

TotalEnergies recently abandoned its explorations off the south coast, deeming its findings not “economically viable.” 

In the latest court proceedings, the affected communities and environmental rights groups will argue that the decision to allow Shell to renew its exploration right was incorrect.

“The case is about recognizing that the rights of coastal communities are more important than the profit-making of oil giants,” said Sinegugu Zukulu from Sustaining the Wild Coast. 

“They are pushing to make a profit in the face of climate change, which disproportionately affects rural communities who have no insurance against climate change impacts.”

Angela Van der Berg, Director of the Global Environmental Law Centre at the University of Cape Town, said that recent publications from the International Court of Justice (ICJ) will be useful to the cause of local communities and activists. 

The ICJ released an advisory opinion, outlining what all governments are legally required to do to address climate change.

The advisory instructs governments to align fossil fuel decisions with their duty to prevent harm and reduce climate change.

Under South Africa’s constitution, courts are required to take international law into account when interpreting rights. 

This approach recently prompted the Western Cape High Court to set aside environmental authorisations granted to TotalEnergies and Shell for drilling off the West Coast. 

This was another court case involving Greenpeace Africa and Natural Justice.

The court found that the Environmental Impact Assessment failed to examine the potential consequences of a significant oil spill on local and neighbouring coastal communities, ignoring coastal protection laws.