This article was first published in the Financial Mail on 15 September 2022.
A high court judgment shatters any lingering illusions about the government’s willingness to apply or comply with the law.
In late 2021, a group of community organisations and NGOs successfully approached the Makhanda high court for an interim interdict to stop an imminent seismic survey off the Eastern Cape coast. This came amid countrywide protests against Shell and Impact Africa, which held the right to carry out the survey.
In the review proceedings, a full bench of that court handed down judgment on September 1 challenging the lawfulness of the original grant of the exploration right.
The judgment shatters any lingering illusions about the department of mineral resources & energy’s (DMRE’s) willingness to apply or comply with the law, finding that “it is demonstrably clear that the decisions were not preceded by a fair procedure”.
The court found that the public consultation process was procedurally unfair, and that the department failed to consider: the possibility that granting the right could result in harm; the potential impact on communities dependent on the sea for their livelihoods; the cultural and spiritual rights of affected communities; any potential climate change impact; and the provisions of the Integrated Coastal Management Act.
The court also agreed with the applicants that they were justified in not submitting an internal appeal to the DMRE against the granting of the right — which they are ordinarily required to do before going to court — because minister Gwede Mantashe’s bias in favour of the oil and gas industry was so significant that such an internal appeal would have been “an exercise in futility”.
Think about that for a second: three judges of the high court agreed that the person with overall responsibility for determining the energy policy of the whole country is so obviously biased in favour of the fossil fuel industry that it was pointless to ask him to objectively apply the law.
Judging from their reaction to this litigation, oil and gas proponents in the DMRE and the Petroleum Agency SA (PASA) appear to view legal obligations and constitutional rights as mere inconveniences, and anyone seeking to enforce them as “holding back development” or, according to Mantashe’s now notorious comment, guilty of “apartheid and colonialism of a special type”.
These proponents claim that, in contrast to the “environmental lobby”, their aim is selfless: to ensure energy security and widespread economic benefit for the country.
This purported concern for “the people” is demolished by the judgment, which lays bare how, in granting the right, the DMRE failed to consider, let alone show any regard or respect for, the people who will be most harmed by oil and gas exploration.
In addition to failing to consider the potential harms to livelihoods, culture, the climate and the environment, the DMRE also granted the right despite manifest flaws in the “consultation” process: notices were only placed in English and Afrikaans newspapers, in an area where most people’s first language is Xhosa; and information about the project was made available on a website, when most of those who should have been consulted have no access to computers or the internet.
The court also found that no evidence was provided to substantiate the claims in the right-holders’ environmental management programme that the seismic survey “would create jobs and increase government revenues … or how the seismic survey will improve the socioeconomic circumstances in which most South Africans live”.
In other words, no evidence to substantiate the claims which form the basis of the government’s shamelessly partisan push for oil and gas.
The one government entity which might be expected to take a more objective stance, the department of forestry, fisheries & the environment (DFFE), appears to have instead joined forces with the oil and gas lobby.
In recent months, the DFFE, the DMRE and PASA have jointly sponsored and participated in a series of bizarre “pre-colloquiums” on the “sustainable development” of oil and gas in SA, and on the “coexistence” of the upstream oil and gas industry with marine life and the fishing industry.
At one of these events, DMRE director-general Jacob Mbele made the Kafkaesque observation that “the biggest risk to developing policies and plans for decarbonisation is litigation”.
Shell, Impact Africa and the government will be carefully plotting their next move. Appealing the judgment is risky, because a similar finding by a higher court would be even more damaging to their cause. But many more seismic surveys are planned, and TotalEnergies has applied for a production right that covers its Brulpadda and Luiperd discoveries.
Unless the DMRE has learnt from the Makhanda judgment, more of that pesky litigation is inevitable.
IMAGE: Gallo Images/Brenton Geach