Judge President Selby Mfanelo Mbenenge of the Makhanda High Court on Thursday set aside Energy Minister Gwede Mantashe’s decision to grant a permit to global fossil fuel giant Shell for seismic surveys on the Eastern Cape Wild Coast.
Reading out the judgment, Judge Mbenenge said that “the principal question dealt with in the proceedings is whether the grant on an exploration right for exploration of oil and gas, which has culminated in the need to conduct a seismic survey along the south-east coast of South Africa, is lawful.”
Judge Mbenenge continued that “while some enjoy water sports on the beaches comprising the Eastern Cape coast, it is, to others, a home for communities that are steeped in customary rituals”.
The judge found that communities living along the Wild Coast subsist on fishing and other marine resources to supplement their livelihoods and that the Eastern Cape coast is not only a haven for marine and bird life, including endangered, threatened, and protected species, but also a centre of attraction to entities desirous of exploring mineral and petroleum resources from its seabed.
“To this end,” Judge Mbenenge said, “one of these entities has sought and obtained an exploration right in terms of the applicable statutory framework and, as a precursor to the exploration, it has become necessary to conduct a seismic survey off the Eastern Cape coast.”
The quest to conduct the survey and possible resulting exploration does not find favour with communities and entities who uphold nature conservation and protection of the coastal environment, the contention being, inter alia, that the survey will impact negatively upon the livelihood and the constitutionally and customarily held rights, including customary fishing and religious rights, of the coastal communities.
In conclusion, Judge Mbenenge said that “the court is satisfied that the review grounds meet the threshold. It is demonstrably clear that the decisions 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.”
In light of the above, the court found that the decision granting the exploration right falls to be reviewed under section 6(2) of PAJA (Promotion of Administrative Justice Act, 2000) and the principle of legality.
Judge Mbenenge said that “logically, the rentals arose from the exploration right and have no independent and separate existence from the right. It follows that if the exploration right is wrong in law, the renewals are legally untenable. The decisions are liable to be set aside in terms of section 8 of PAJA.”
Handing down judgment, Judge Mbenenge ordered that the decision taken by the first respondent on April 29, 2014, granting exploration right 12/3/252 to the fourth respondent for the exploration of oil and gas in the Transkei and Algoa exploration areas, be reviewed and set aside and that the decision taken by the first respondent on December 20, 2021, to grant a renewal of the exploration right, be reviewed and set aside.
He also ordered that the decision taken by the first respondent on August 26, 2021, to grant a further renewal of the exploration right is reviewed and set aside.
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