Gwede Mantashe's

The Makhanda High Court overturned the exploration right granted to Shell by Mineral Resources and Energy Minister Gwede Mantashe to conduct seismic surveys for oil and gas off the ecologically sensitive Wild Coast.

The order invalidated the exploration right granted to Impact Africa in 2014, which was later transferred to Shell, as well as the subsequent renewals of the exploration right, because they were granted illegally.

In the judgement, Judge President Selby Mfanelo Mbenenge wrote, “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 consider relevant considerations and to follow relevant legal prescripts.”

“As a result, the decision granting the exploration right must be reviewed under section 6(2) of the Promotion of Administrative Justice Act and the legality principle… As a result, if the exploration right is invalid in law, the renewals are legally unenforceable.”

The court agreed with opponents of the exploration who claimed that the department had not considered the potential harm to fishers’ livelihoods, local people’s cultural and spiritual rights, or the climate impact.

Legal action was taken.
Sustaining the Wild Coast, Wild Coast communities, Wild Coast small-scale fishers, and All Rise Attorneys for Climate and the Environment, represented by the Legal Resources Centre and Richard Spoor Attorneys, filed the legal challenge. Natural Justice and Greenpeace Africa filed an application to join the court case, and they were represented by environmental law firm Cullinan and Associates.

They sought to overturn the decision of the Department of Mineral Resources and Energy to grant Shell and Impact Africa an exploration right, allowing them to conduct seismic surveys off the Wild Coast.

The applicants claimed that the exploration right was granted illegally because there was no consultation with affected communities and insufficient consultation with traditional leaders by the companies.

Decision-makers failed to consider the potential harm to fishers’ livelihoods, the impact on their cultural and spiritual rights, and the contribution of oil and gas exploitation to climate change when awarding the exploration right.

They claimed that in awarding the exploration licence, the decision-makers failed to take into account the Integrated Coastal Management Act (ICMA) and its requirement to consider the interests of the entire community, including fishers and ocean life.

‘Ill-gotten position’
The court ruled in favour of the applicants on all of the review grounds.

“It would seem Impact and Shell were content to consult with only the monarchs or the communities, adopting the ill-gotten stance that such consultations sufficed,” the court said of public participation. That was clearly incorrect…

“In any case, the top-down approach of consulting kings or monarchs on the basis that they spoke for all their subjects is a thing of the past, and it has no place in a constitutional democracy.” There is no law authorising traditional authorities to represent their communities in consultations, and none was cited.

“Meaningful consultations do not consist in ticking boxes but in engaging in a genuine, bona fide, substantive, two-way process aimed at achieving, as far as possible, consensus, particularly on what the process entails and its significance.”

The court found that Impact Africa failed to provide the applicant communities with adequate notice of the nature and purpose of the proposed seismic survey, as well as the information required to make meaningful representations or the opportunity to make representations.

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