Animals

South Africa: Massive Blow for the Wild Coast: Urgent Interdict Denied

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The court rejects the seismic survey’s objection on the grounds that “irreparable damage” to marine species has not been proven.

Rule:

Acting Judge Govindji found that the plaintiffs had succeeded in establishing that there had been no undue delay in bringing the case and that the urgency of the matter justified deviation from the usual rules so that the matter could be heard expeditiously. He commented in this regard that he had taken into account that “the public interest in this case is clear.”

After determining the legal tests applicable to the granting of provisional quarantine and the importance of determining whether plaintiffs or defendants would suffer “irreparable harm” if provisional quarantine were granted, the judge reviewed the evidence presented by the parties.

In his analysis of how the law applies to the facts of this case, Govindjee AJ expressed doubts as to whether the applicants would have succeeded in reviewing and revoking the award of the exploration right in 2014 (due to the elapsed time) or requesting the first renewal because the expiration of this renewal means that the issue is now moot . However, with respect to the second renewal application, it was found that applicants had successfully demonstrated that they had a clearly visible prospect of success due to seemingly insufficient public participation.

However, the court concluded that the plaintiffs had failed to convince him that there was a reasonable fear of “irreparable harm” if the ban was not granted, and that given the financial and non-pecuniary damages to Shell if seismic surveys were delayed, the “balance of propriety” would be in favor of Shell. Accordingly, the application was rejected with costs, including the costs of two lawyers, to be incurred.

The applicants are appalled that the court rejected the application without granting their application to allow them to return to the court to provide further assertions and provide expert evidence, ruling the costs against them despite the fact that the application was made in the public interest to protect the oceans and coastal environment. Applicants had expected to be able to provide more expert evidence of irreparable damage at the date of return. The application had to be submitted on a very urgent basis (as a result of Shell actions and the inaction of the Minister of Mineral Resources and Energy) which meant that it was not possible for the experts to finalize the detailed reports and affidavits by the time the application was launched.

Applicants will discuss the judgment with their legal advisors with a view to deciding whether or not to apply for leave to appeal against these aspects of the judgment. In the meantime, we will do everything we can to support yesterday’s request on behalf of the Wild Coast communities seeking to intercept seismic surveys on the grounds that Shell does not have an environmental permit to conduct them.

Applicants’ feedback:

“The decision to allow Shell to continue with its plans to destroy the Wild Coast is deeply disappointing. Not only will the detonation destroy ecosystems with precious biodiversity, but it will also destroy the livelihoods of local communities, all in the name of profit,” says Happy Khambule, Senior Manager Climate and Energy Campaign at Greenpeace Africa.

“We will continue to support nationwide resistance against Shell and seek the legal way to stop Shell. We must do everything we can to undo the destructive colonial legacy of extraction, so that we live in a world where people and the planet come before the profits of toxic fossil fuel companies,” Khambol continues.

“The outcome is very unfortunate, especially since the judge did not realize the urgency of the ban and the immediate threat that seismic surveys pose to the environment, marine life and local communities,” says Pooven Moodley, Executive Director of Natural Justice.

“Our fight to protect the Wild Coast is far from over, and our larger struggle for climate justice, resistance to oil and gas exploration in South Africa and across the entire continent is far from over. As activists, civil society and lawyers, we can’t sit back – the climate crisis looms over us, fossil fuel companies that accelerate the crisis poses a serious threat to the planet, our livelihoods, human rights and our existence. We will fight them on beaches and in court,” continues Modly.

John Rance, president of Kei Mouth Skiboat Club (KMSBC) says