Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (3491/2021) [2022] ZAECMKHC 55; 2022 (6) SA 589 (ECMk) (1 September 2022)

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[2022] ZAECMKHC 55
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Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (3491/2021) [2022] ZAECMKHC 55; 2022 (6) SA 589 (ECMk) (1 September 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO: 3491/2021
Reportable
In
the matter between:
SUSTAINING
THE WILD COAST NPC

1
st
Applicant
MASHONA
WETU
DLAMINI

2
nd
Applicant
DWESA-CWEBE
COMMUNAL PROPERTY

3
rd
Applicant
ASSOCIATION
NTSINDISO
NONGCAVU

4
th
Applicant
SAZISE
MAXWELL
PEKAYO

5
th
Applicant
CAMERON
THORPE

6
th
Applicant
ALL
RISE ATTORNEYS FOR CLIMATE AND

7
th
Applicant
THE
ENVIRONMENT NPC
NATURAL
JUSTICE

8
th
Applicant
GREENPEACE
ENVIRONMENTAL ORGANIZATION

9
th
Applicant
and
MINISTER
OF MINERAL RESOURCES AND ENERGY

1
st
Respondent
MINISTER
OF ENVIRONMENT, FORESTRY AND

2
nd
Respondent
FISHERIES
SHELL
EXPLORATION AND PRODUCTION

3
rd
Respondent
SOUTH
AFRICA B V
IMPACT
AFRICA
LIMITED

4
th
Respondent
BG
INTERNATIONAL
LIMITED

5
th
Respondent
JUDGMENT
MBENENGE
JP:
Introduction
[1]
Stripped of verbiage, the principal question dealt with in these
proceedings is whether
the grant of an exploration right for the
exploration of oil and gas, which has culminated in the need to
conduct a seismic survey
along the Southeast coast of South
Africa,
[1]
is lawful.
[2]
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. These communities subsist on fishing and other
marine
resources to supplement their livelihood.
[3]
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, one of these
entities has sought and obtained an exploration right in terms of the
applicable statutory
framework. As a precursor to the exploration, it
has become necessary to conduct a seismic survey
[2]
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.
[4]
The scramble for the utilisation of our coastal waters often brings
to the fore the
interplay, foreshadowed in section 24 of the
Constitution,
[3]
between the
right to a protected environment, on the one hand, and socio-economic
development, on the other, once echoed by Ngcobo
J in
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation
and
Environment, Mpumalanga Province and Others
[4]
in the following terms:
‘
. . .
[D]evelopment cannot subsist upon a deteriorating environmental base.
Unlimited development is detrimental to the environment
and the
destruction of the environment is detrimental to development.
Promotion of development requires the protection of the environment.

Yet the environment cannot be protected if development does not pay
attention to the costs of environmental destruction. The environment

and development are thus inexorably linked.’
The
parties
[5]
In light of the nature of these proceedings and the issues raised by
the parties,
it is imperative to give a detailed description of the
parties to this litigious matter and, as far as possible, to mention
what
cause they champion.
[6]
The first applicant is Sustaining the Wild Coast NPC,
[5]
a non-profit company whose objective is to promote sustainable
livelihood that constructs, rehabilitates and protects the natural

environment on the Wild Coast.
[7]
The second applicant is Mashona Wetu Dlamini, a resident of Sigidi
Village in the
Umgungundlovu Community which forms part of Amadiba
Traditional Community. Mr Dlamini is a traditional healer and a
member of the
council of inkosana of Umgungundlovu, Duduzile Baleni.
He acts for himself, on behalf of traditional healers along the Wild
Coast
and on behalf of the Umgungundlovu Community.
[8]
The third applicant is the Dwesa-Cwebe Communal Property
Association,
[6]
a duly
established juristic entity in whose favour land of which the
Dwesa-Cwebe community
[7]
had
been dispossessed under colonialism and apartheid was restored under
the
Restitution of Land Rights Act 22 of 1994
. Dwesa-Cwebe is a
marine protected area
[8]
bordering the Cwebe Reserve located along the Wild Coast, in the
district of Elliotdale.
[9]
The fourth applicant is Ntsindiso Nongcavu, a fisher from Port St
Johns, who brings
the application for himself and on behalf of fellow
Wild Coast fishers.
[10]
Saziso Maxwell Pekayo and Cameron Thorpe are the fifth and sixth
applicants, respectively. They
form part of a local cooperative, Kei
Mouth Fisheries, and launch the application on their own behalf, on
behalf of their community
and of Wild Coast fishers.
[11]
The seventh applicant is All Rise Attorneys for Climate and
Environmental Justice NPC,
[9]
a
law clinic and a duly incorporated non-profit company representing
communities fighting against and affected by climate change.
[12]
Natural Justice and the Greenpeace Environmental Organisation NPC
seek to join these proceedings
as the eighth and ninth applicants,
respectively. Natural Justice is a voluntary association whose
objectives are to provide legal
support to indigenous people and
local communities and ensure that the interests of these communities
are effectively represented
in the development and implementation of
domestic and international law and policy. Greenpeace Environmental
Organization NPC
[10]
works
towards the achievement of environmental rights and social and
environmental justice in communities across South Africa.
[13]
The second, fourth, fifth, sixth and seventh applicants act in the
public interest and in the
interest of protecting the environment. In
addition to acting in the public interest, the third applicant acts
in the interest
of its members.
[14]
The first respondent is the Minister of Mineral Resources and Energy,
responsible for the administration
of the
Mineral and Petroleum
Resources Development Act 28 of 2002
.
[11]
The second respondent is the Minister of Environment, Forestry and
Fisheries, cited in her capacity as the functionary who administers

the
National Environmental Management Act 107 of 1998
,
[12]
the Integrated Coastal Management Act 24 of 2008
[13]
and the
National Environmental Management: Biodiversity Act 10 of
2004
.
[14]
The legislation
administered by these ministries has one thing in common: the
recognition of everyone’s constitutional right
to have the
environment, including the coastal environment, protected for the
benefit of present and future generations.
[15]
The third respondent is Shell Exploration and Production South Africa
BV.
[15]
Shell is an integrated
energy company. It holds itself out as ‘one of the largest
corporates in the world’ and considers
itself to be ‘a
pioneer in the development of new technologies and processes in an
energy-hungry world.’
[16]
The fourth respondent is Impact Africa Limited.
[16]
Impact undertakes ‘[to substantially and meaningfully expand
opportunities for historically disadvantaged South Africans,

including women, to enter the petroleum industry and to benefit from
the exploitation of the nation’s petroleum resources]’

and to ‘[promote and advance the social and economic welfare of
all South Africans].’
[17]
It is not in dispute that Shell and Impact have each a 50%
participating interest in the exploration right which authorised the

seismic survey and exploration sought to be conducted on the Wild
Coast.
[17]
The fifth respondent is BG International Limited, a duly incorporated
external company conducting
business in,
inter alia
, the
Gauteng Province. It is also not in dispute that the fifth respondent
is the Shell entity which co-owns the project affected
by the relief
sought in these proceedings, hence the third and fifth respondents
are otherwise hereinafter collectively referred
to as Shell.
Factual
background
[18]
Even though the issues raised in this application are largely more
legal rather than factual,
a brief setting out of the relevant
background facts is nevertheless necessary. On 14 July 2011, Impact
applied for a technical
co-operation permit. That permit was granted
by the Deputy Director-General of the Department of Mineral Resources
and Energy
[18]
on 27 July
2012. Thereafter, on 18 February 2013, Impact applied for an
exploration right to,
inter
alia
,
use the seismic survey to seek out oil and gas reserves off the
Eastern Cape coast
[19]
in the
Transkei Algoa exploration area, in terms of
section 79
of MPRDA.
[20]
The application was accepted on 01 March 2013. Impact was required to
submit an environmental management program
[21]
on the proposed activities to the Petroleum Agency of South
Africa
[22]
for consideration
and approval by the Minister responsible for mineral resources. In
this regard,
regulation 52
of the Regulations promulgated under MPRDA
makes provision for the details to be included in an EMPr.
[23]
[19]
Pursuant to PASA’s acceptance of the application, the
consultation process engaged in by
an independent environmental
assessment practitioner, at the instance of Impact, then the operator
for conducting the seismic survey,
was as follows:
(a)
Potential interested and affected parties
were identified through analysis of potential stakeholders and based
on stakeholders engaged
in previous similar studies in the area.
(b)
A list setting out these parties was
generated for use in the envisaged consultation. The list included
various functionaries at
local, regional and national levels, and
representatives of NGOs, industry groups and communities.
(c)
A background information document providing
an overview of the proposed exploration activities and locations was
compiled and distributed
to the interested and affected parties. The
document provided instructions for submitting comments and input for
consideration
in the EMPr.
(d)
Adverts were placed in
The
Times
,
Die
Burger
(Eastern Cape),
The
Herald
and
The
Daily Dispatch
newspapers on Friday 22
March 2013 notifying members of the public of the proposed project.
The public was also thereby provided
with details of the consultation
process, including information on how they could provide input into
and comment on the EMPr process.
(e)
21
calendar days
[24]
were allowed
for interested and affected parties to submit issues or express
concerns for consideration in the compilation of the
draft EMPr. This
period also allowed for members of the public to register as
interested and affected parties and/or submit issues
or concerns.
(f)
Issues
or concerns were received and compiled into a report that formed part
of the draft EMPr. The draft EMPr was made available
to interested
and affected parties for 30 calendar days
[25]
on the project website.
(g)
The
interested and affected parties on the stakeholder database were
notified of and invited to group meetings held in Port Elizabeth,
[26]
East London
[27]
and Port St
Johns.
[28]
Two group meetings
were held with officials from the Eastern Cape Parks and Tourism
Agency and the Department of Development, Environmental
Affairs and
Tourism in East London on 04 June 2013.
(h)
Meetings
involving the monarchs in the Transkei
[29]
through the monarchs’ representative, Mr Richard Stephenson,
and the Royal Monarch Council were held in Mthatha and comments

received therefrom for consideration by the relevant functionary.
(i)
All comments received on the draft EMPr
were compiled and documented in the comments and responses report. No
substantive changes
were made to the EMPr in preparing the final
report for submission to PASA.
[20]
Pursuant to this process, PASA recommended the approval of the EMPr
on 09 September 2013. The
Deputy Director-General gave such approval
on 17 April 2014.
[21]
The exploration right applied for by Impact was granted on 29 April
2014.
[30]
In terms of
section
80(5)
of MPRDA, an exploration right is subject to prescribed terms
and conditions and is valid for a period not exceeding three years.

No meaningful seismic and exploration activities were immediately
conducted along the eastern coastline, but the following developments

unfolded:
(a)
On
17 May 2017, Impact, together with EXXONMOBIL Exploration Product SA
Ltd (EMEPSAL),
[31]
applied for
the first renewal of the exploration right. The application was
granted on 20 December 2017.
(b)
In
2018,
[32]
PGS Geophysical
conducted a 2D
[33]
multi-client seismic survey in the area in question as a precursor to
the 3D
[34]
survey which is the
subject of this application.
(c)
On
13 March 2020, Impact applied for the second renewal of the
exploration right.
[35]
(d)
On 04 June 2021, the Director-General of
the Department consented to the assignment and transfer of a 50%
participating interest,
in the exploration right in the Transkei
Algoa exploration area, to the fifth respondent.
(e)
The second renewal was granted on 30 July
2021.
[22]
On 29 October 2021, SLR Consulting (South Africa) Ltd,
[36]
at the instance of Shell, as operator of the exploration right, gave
notice of Shell’s intention to commence with a 3D seismic

survey along the Wild Coast, pursuant to the exploration right and
the EMPr approved in 2014.
[23]
The survey is conducted by a seismic vessel sailing off the
coastline, towing a 6- kilometres-long
array of airguns behind it.
During the survey, the seismic vessel
[37]
discharges pressurised air from its airgun
[38]
arrays
[39]
to generate sound
waves that are directed downwards towards the seabed. The waves are
reflected from geological layers below the
seafloor and recorded by
multiple receivers or hydrophones which are towed behind the seismic
vessel by multiple streamers that
are 6 kilometres long. Analyses of
the returned signals allow for interpretation of sub-geological
formations and structures. During
the survey, the vessel sails off
the coastline between 20 and 80 kilometres from the shore.
[24]
It is common cause that Impact and Shell have secured no
environmental authorisation to undertake
the impugned survey and
exploration.
[25]
Mr Reinford Sinegugu Zukulu, the deponent to the affidavit filed in
support of the first to seventh
applicants, registered as an
interested and affected party on 07 November 2021, lending support to
petitions that were, at the
time, in circulation as part of a mass
campaign mobilized to ask the relevant Minister to hold in abeyance
the proposed activities.
The campaign yielded nought.
[26]
In the wake of these events, urgent proceedings were launched by
Border Deep Sea Angling, Kei
Mouth Ski Boat Club and the eighth and
ninth applicants against the present respondents on 30 November 2021.
An order was sought
to restrain Shell and Impact from undertaking
seismic survey operations pursuant to Impact’s exploration
rights from 01 December
2021 onwards, pending separate proceedings to
be launched to review the exploration right and its renewals. The
first to seventh
applicants in the current proceedings had been
desirous to join those proceedings but ended up not doing so due to
having been
overtaken by events. The court
[40]
dismissed the application on the ground that the applicants had not
established a well-grounded apprehension of irreparable harm
if
interim relief was not granted and the ultimate relief eventually
granted, or that the balance of convenience favoured them.
[41]
Because nothing hinges on this judgment, nothing more about it, for
present purposes, will be said. It suffices only to state that
the
judgment subsequently became the subject of an application for leave
to appeal on the merits and costs. Only leave to appeal
the costs
order was pursued. That application was dismissed.
[42]
This
application
[27]
As a result of the notice to conduct the impugned survey, the first
to seventh applicants, claiming
to have learned of SLR’s notice
upon its publication, resorted to court by way of urgency seeking an
order interdicting the
third, fourth and fifth respondents from
undertaking the survey,
[43]
pending the determination of part B of that application.
[44]
The urgent application was premised on the contention that the survey
would not only be harmful but would be unlawful, given that
Shell
does not have an environmental authorisation to conduct the
exploration right in terms of NEMA. They furthermore contended
that
they had not been consulted prior to the decision granting the
exploration right being taken and that the survey would cause
harm to
the environment and their livelihoods, culture and heritage.
[28]
Amidst opposition by the first and fifth respondents, the court,
[45]
having been satisfied that the requisites for the grant of an interim
interdict had been fulfilled, granted the interdict pending
the
finalisation of Part B, and directed the first and fifth respondents
to pay the costs of the application incurred thus far.
[46]
[29]
In the course of time, the relief sought in Part B was augmented to,
inter
alia
,
seek orders reviewing the decision granting the exploration right,
including the renewals thereof, and declaratory and interdictory

relief, including relief consequential thereto. Part B, in amplified
form, now serves before this court. To the extent that there
might
have been a delay in launching the proceedings and failure to exhaust
internal remedies before launching the application,
condonation
therefor is also being sought.
[47]
[30]
This case is significant for all the parties involved. Some of the
issues raised are novel. In
light of this, a full court sitting as
the court of first instance was constituted, in terms of
section
14(1)
(a)
of the
Superior Courts Act 10 of 2013
.
[48]
Also, even though the case is justiciable before the High Court in
Makhanda,
[49]
for the sake of
convenience, it was, with the consent of all the parties, heard in
the High Court, Gqeberha.
The
parties’ contentions
[31]
The first to seventh applicants’ assertion is, first, that
environmental authorisation
in terms of NEMA is necessary for
exploration activities regulated by the MPRDA and that the seismic
survey is a listed activity
under NEMA which may not commence without
such authorisation having been secured. Second, the process of
consulting with potential
interested and affected parties is
materially flawed and inadequate as it did not take into account the
nature and structure of
the applicants’ communities and the
manner in which decisions are taken by the communities; in addition
to the customary
law rights and duties held by all the applicant
communities, the Dwesa-Cwebe community holds recognised customary
fishing rights
and ought, therefore, to have been specifically
consulted. Third, because the first to seventh applicants were not
aware of the
application for the exploration right and the renewals
thereof, the impugned decisions were taken without paying heed to the
fundamental
considerations, including the anticipated harm to marine
and bird life along the Wild Coast and the communities’
spiritual
and cultural rights; on a proper application of the
precautionary principle, the court should find that the threat of
harm to marine
and bird life justifies a cautious approach, which was
not given heed to when the exploration right was granted. As a
result, the
mitigation measures contained in the EMPr are woefully
insufficient to address the threat of harm arising from the proposed
seismic
survey.
[32]
The eighth and ninth applicants seek leave to intervene in these
proceedings on the basis that
they have a direct and substantial
interest in the outcome thereof. They otherwise align themselves with
the relief sought by the
first to seventh applicants. Their point of
emphasis is that the area in which the impugned survey is to be
conducted enjoys a
special legal status that affords the environment
a particularly high level of protection, given the ecological value
of the area
and the presence of many critically endangered,
threatened and protected species. They, therefore, assert that the
impugned decisions
ought to be set aside on the basis that the
decision-makers failed to consider the
National Environmental
Management: Integrated Coastal Management Act 24 of 2008
and made no
proper consideration of the climate change impacts of the impugned
decision.
[33]
The second to fifth respondents have taken the preliminary points
that the applicants are barred
from seeking to review the impugned
decisions because more than 180 days elapsed since the decisions were
taken and the applicants
failed to exhaust internal remedies
available to them. On the merits, Shell and Impact contend that there
was no need to secure
environmental authorisation under NEMA in
addition to the EMPr in terms of the MPRDA. In further support of the
impugned decisions
and actions, they allege that seismic surveys are
routine and have been performed in the past, which is evidence that
they are
not harmful to marine and bird life in the area concerned.
They also contend that there are no climate change impacts to access

a seismic vessel any more than there would be a fishing or commercial
vessel. Reliance for these contentions is placed on evidence
tendered
by experts who deny that harm will result from the seismic surveys;
it is contended that there is no research globally
showing that
serious injury, death or stranding of marine mammals has occurred
from exposure to sound from seismic surveys when
the appropriate
mitigating and monitoring measures are implemented.
[50]
Regard being had to the social and economic development that will
ensue from the survey, argue Shell and Impact, the survey ought
to be
allowed. Shell and Impact maintain that the consultation process
followed was adequate, having been in accordance with the
applicable
regulatory framework and that they had no obligation to consult the
applicants specifically, in circumstances where
the applicants
concerned took no steps to register as interested and affected
parties.
[34]
For his part, the first respondent resists the review and setting
aside of the impugned decision
on the basis that due process was
followed in taking the decisions based on the prescribed material
before him to which he applied
his mind. The first respondent
associates himself with Impact and Shell in (a) contending that the
applicants should be non-suited
for having delayed before launching
this application; (b) defending the consultation process as having
been adequate; and (c) asserting
that no separate environmental
authorisation in terms of NEMA is required for exploration
activities. At the hearing, the first
respondent also persisted in
contending, together with the other respondents, that the applicants
should be non-suited for having
delayed before launching this
application.
[35]
In rebuttal of the preliminary points, the applicants dispute that
the review application was
brought out of time; they only became
aware of the impugned decision in November 2021. They further contend
that, given the first
respondent’s approach to the
litigation
[51]
and public
statements he made,
[52]
no
purpose would have been served in lodging an internal appeal. Based
on expert evidence, the applicants dispute that they will
benefit
from the results of the seismic survey and the ensuing projected
exploration.
[36]
In his supplementary affidavit attested and filed of record on 7
December 2021, Mr Zukulu sought
an indulgence to tender expert
evidence setting out the risks of harm associated with seismic
surveys in general, and on the Wild
Coast, in particular. In the
affidavit, he makes the point that the founding papers had been
prepared in extreme urgency and haste,
the information embodied
therein not having been to hand five days prior thereto, on 2
December. The delivery of the supplementary
affidavit and the
relevant reports were at no stage made the subject of controversy.
Indeed, doing so would, in my view, have been
tantamount to creating
a storm in a teacup. This is especially so if one has regard to the
fact that leave to file the affidavit
was applied for and the
respondents averse to such filing were invited to oppose the
same.
[53]
The notice attracted
no such opposition. The interests of justice dictate that the
affidavit be admitted. This case will be adjudicated
with all the
facts having been placed before court. No prejudice will be suffered
by the admission of the affidavit. None was pointed
to, either.
[37]
The late delivery of the supplementary affidavit of Mr Zukulu,
together with annexures thereto,
is accordingly condoned.
[38]
A further preliminary issue that was the subject of a skirmish at the
hearing of this application
was whether the belatedly delivered
affidavit of Dr Jammine, Impact’s expert witness, should be
admitted. The affidavit deals
with the macro and regional economic
and social consequences of the relief being granted in the terms
sought by the applicants
and the intervening parties. Dr Jammine’s
commitments and unforeseen logistical challenges are said to have
rendered it well
neigh impossible for Impact to deliver the affidavit
timeously.
[39]
Only the intervening parties opposed the interlocutory application,
contending, in the main,
that, due to paucity of time, they would be
prejudiced as they had not been able to procure an expert witness to
answer Dr Jammine’s
affidavit. The affidavit, so it was
contended, related to an issue that should have been raised at the
outset and that, therefore,
the application for the admission of the
affidavit did not meet the threshold.
[40]
Amidst such opposition, the court provisionally accepted the
affidavit, with the parties acknowledging
that this was a pragmatic
solution in the circumstances of this case. It bears mentioning that,
whilst the intervening parties
could have asked for more time by even
seeking a postponement at the cost of the errant party, they did not
do so. Instead, as
a fall-back position, they accepted that the
applicants’ expert, Professor Bond, does participate in the
debate on the topic
at hand.
[41]
No reason has been found for rejecting the affidavit. Impact’s
application for the admission
of the affidavit is, therefore,
granted, leaving the court to consider issues that are germane to the
merits of these proceedings.
[42]
The entitlement or otherwise of the applicants and the intervening
parties to the grant of the
relief they are seeking hinges on answers
to the following questions, namely:
(a)
have the eighth and ninth applicants made
out a case for intervention;
(b)
do the applicants fall to be non-suited due
to -
(i) the alleged delay in
launching these proceedings; and
(ii) not having exhausted
internal remedies prior to the launch of this application;
(c)
do the grounds for the review of the
impugned decisions pass muster;
(d)
should the declaratory and interdictory
relief sought be granted; and
(e)
what costs order should be made?
Each
one of these questions will be dealt with in the order in which they
have been posed.
The
intervention
[43]
It is trite law that an applicant for leave to intervene must show
that it has a direct and substantial
interest in the subject matter
of the litigation, in the form of a legal interest that may be
prejudicially affected by the judgment
of the court.
[54]
It is incumbent on the applicant for intervention to demonstrate that
it has a right adversely affected or likely to be affected
by the
order sought. However, the party seeking to intervene is not required
to satisfy the court at the stage of intervention
that it will
succeed; it need only make allegations which, if proved, would
entitle it to relief.
[55]
[44]
Where a party has shown a direct and substantial interest in the
subject matter of a case, the
court has no discretion to exercise. It
must grant the intervention.
[56]
[45]
The generous approach to standing adopted under section 38 of the
Constitution is the overriding
factor. That section grants
locus
standi
to any party alleging the infringement of a right in the Bill of
Rights acting in its own interest,
[57]
on behalf of another person who cannot act in their own interest,
[58]
in the interest of a group or class of persons,
[59]
in the interest of the public
[60]
or as an association acting in the interest of its members.
[61]
[46]
Section 32(1) of NEMA makes provision for an even broader legal
standing to enforce environmental
laws in respect of any breach or
threatened breach of NEMA. It accords standing to any person or group
of persons referred to in
section 38 of the Constitution, but, most
importantly, adds ‘
in
the interests of protecting the environment
’
[62]
as another relevant factor.
[47]
In
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others
[63]
O’ Regan J advocated for a more generous approach regarding
standing in the constitutional dispensation than at common law.
All
courts required to adjudicate constitutional claims are required to
invoke the generous approach.
[64]
[48]
In this matter, regard should be had to the fact that the litigation
is of a public or constitutional
character; it involves an
infringement of the Bill of Rights and a breach or threatened breach
of NEMA. Therefore, the range of
interests upon which an intervening
party might rely in contending for a direct and substantial interest
ought to be broadly construed.
[49]
In the view of this court, the objectives of the intervening parties
and the entities or persons
in whose interests the litigation is
brought, establish the entitlement to seek the substantive relief
prayed for in the intervening
parties’ notice of motion in
their own right, independently of the first to seventh applicants.
[50]
The Minister and Shell have consented to the joinder sought. Only
Impact opposes the intervention
application. But, Impact does not
deny that the intervening parties have the standing to seek the
substantive relief sought in
the notice of motion in their own right.
It merely contends that the intervening parties’ participation
is redundant because
the first to seventh applicants already
represent the public interest and there is overlap in the factual
allegations, review grounds,
statutory provisions and relief sought
between the intervening parties and the first to seventh applicants.
Impact’s stance
is predicated on the contention that the
intervention would not be of “
assistance
to the court
.”
That is, however, hardly the test for intervention.
[65]
[51]
There is yet another relevant factor; it was available to the
intervening parties to pursue Part
B of the BDSA case regardless of
the fact that Part A was not successful. They did not do so but
elected to intervene in these
proceedings. Had they pursued Part B,
their application and the instant application would, in all
probability, have had to be consolidated.
The intervening parties
deserve of being commended for the prudent step they took which has
had the effect of avoiding a multiplicity
of applications. In any
event, the interests of justice dictate that they be allowed to
intervene in these proceedings. It is also
of importance that, in
this instance, the intervening parties seek to join these proceedings
acting in the public interests and
under the broader standing
provisions set out in NEMA.
[52]
In these circumstances, Natural Justice and Greenpeace Africa have
made out a case for the intervention
they are seeking. Henceforth,
these entities are applicants in these proceedings and will be
referred to as such interchangeably
with the appellation “
intervening
parties
.”
Has
there been an unreasonable delay?
[53]
Three administrative decisions are at the heart of the review part of
the applicants’ prayers
namely, the decision to grant the
exploration right made on 29 April 2014; the decision taken on 20
December 2017 to renew the
exploration right; and the decision of 26
August 2021 further renewing the exploration right.
[54]
The respondents seek to bar the challenge to the impugned decisions
on the ground that the applicants
launched these proceedings on 02
December 2021, outside of the 180 days period referred to in
section
7
of the
Promotion of Administrative Justice Act 3 of 2000
.
[66]
The applicants dispute this and, in the alternative, seek an order
extending the 180 days in accordance with
section 9
of PAJA.
[67]
[55]
In terms of
section 7(1)
(b)
of PAJA, any proceedings for
judicial review in terms of
section 6
must be instituted without
unreasonable delay and no later than 180 days after the date on which
the person concerned ‘
was informed of the administrative
action
,’ became aware of the action and the reasons for it
or might reasonably have been expected to have become aware of the
action
and the reasons.
[56]
The enquiry whether there was an unreasonable delay in launching
review proceedings is factual, involving a value judgment
in the
light of all the relevant circumstances including any explanation
that is offered for the delay.
[68]
[57]
In
NAPTOSA
and Others v Minister of Education, Western Cape and Others
[69]
Conradie J held:
‘
It
is well established law that undue delay may be taken into account in
exercising a discretion as to whether to grant an interdict
or a
mandamus
,
or to grant relief in review proceedings. The declaratory order,
being as flexible as it is, can be used to obtain much the same

relief as would be vouchsafed by an interdict or a
mandamus
.
Where it is not necessary that a record of proceedings be put before
the court, a declaratory order could serve as a review. A
court, in
exercising its discretion whether to grant a declaratory order
should, accordingly, in an appropriate case, weigh the
same
considerations of ‘justice or convenience’ as it might do
in case of an interdict or review.’
[58]
In the current dispensation where the review of administrative action
is regulated by PAJA and
not the common law,
[70]
these remarks may best be understood within the context of what
Plasket AJA said in
Beweging
vir Christelik-Volkseie v Minister of Education and Others,
[71]
namely:
‘
In
respect of the prayers for declarators, no decision is taken on
review, whether directly or indirectly, no exercise of public
power
is sought to be set aside and the PAJA has no bearing on the relief
claimed because no administrative action is implicated.
That being
so,
section 7
(1) and
section 9
of the PAJA have no application. The
relief claimed being discretional, however, the appellants were
obliged to have launched their
application within a reasonable time.
In other words, the common law delay rule . . . applies to determine
whether the application
in respect of this relief was brought
timeously and, if not, whether any unreasonable delay should be
condoned.’
[59]
The undue delay objection has no bearing on the prayer that seeks to
interdict Shell and Impact
from conducting the seismic survey under
the exploration right without environmental authorisation in terms of
the applicable dispensation.
None of the respondents has suggested
that this relief is affected by the alleged undue delay. Assuming the
applicants’ contention
that authorisation in terms of NEMA is
required, conducting the survey would constitute a criminal offence
,
the challenge of which would not be barred by the delay rule.
[60]
Mr Zukulu says he only learned about the proposed seismic survey
after the publication of the
SLR from media reports in early November
2021 and that the applicants whose cause he is championing became
aware of the publication
subsequent thereto, on diverse occasions,
they not having been consulted prior to the exploration right and the
renewals thereof
being granted.
[61]
The respondents do not deny that the applicants concerned only became
aware of the proposed seismic
survey in November 2021. They have
contented themselves with merely contending that the applicants and
their communities were neither
denied nor precluded from registering
as interested parties pursuant to the newspaper advert of 2013 and
from attending any one
of the group meetings held as part of the
public consultation process.
[62]
For their part, the intervening parties, too, allege that they
discovered that the exploration
right had been awarded on 29 October
2021; even though the deponent to their affidavits
[72]
registered as an interested and affected party in his personal
capacity during the consultation process in 2013, he was not notified

of either the grant of the exploration right or the first and second
renewals of the right or the EMPr compliance audit.
[63]
All that is said to counter the intervening parties’ version is
that it is “
improbable
” that the interested and
affected parties would not have come to know that a decision had been
taken earlier than 2021. No
facts are put up to controvert the
allegations made in the founding papers that, due to the failure on
the part of the relevant
Department to inform the interested and
affected parties and the public at large that the exploration right
had been granted, they
did not learn of the decision until October
2021, in the case of the intervening parties, and November 2021 in
the case of the
applicants.
[64]
In
Wightman
t/a JW Construction v Headfour (Pty) Ltd & Another
[73]
the court held:
‘
When
the facts averred are such that the disputing party must necessarily
possess knowledge of them and be able to provide an answer
(or
countervailing evidence) if they be not true or accurate but, instead
of doing so, rests his case on a bare or ambiguous denial
the court
will generally have difficulty in finding that the test is satisfied.
I say “
generally
”
because factual averments seldom stand apart from a broader matrix of
circumstances all of which needs to be borne in mind
when arriving at
a decision. A litigant may not necessarily recognise or understand
the nuances of a bare or general denial as
against a real attempt to
grapple with all relevant factual allegations made by the other
party. But when he signs the answering
affidavit, he commits himself
to its contents, inadequate as they may be, and will only in
exceptional circumstances be permitted
to disavow them. There is thus
a serious duty imposed upon a legal adviser who settles an answering
affidavit to ascertain and
engage with facts which his client
disputes and to reflect such disputes fully and accurately in the
answering affidavit. If that
does not happen it should come as no
surprise that the court takes a robust view of the matter.
’
[65]
A dispute of fact also does not arise with a party seeking to
controvert the version of another
by casting aspersions on or making
speculative remarks in relation to those being controverted.
[74]
Only concrete allegations or facts placing in issue the allegations
made in the founding papers would have created a dispute of
fact
warranting the invocation of the
Plascon
Evans
rule.
[75]
[66]
In these circumstances, there is no dispute of fact in relation to
when the applicants got to
know of the award of the impugned
exploration right and the renewals thereof. The ineluctable
conclusion is, therefore, that the
Department did not inform the
interested and affected parties and the public at large of the
decision granting the exploration
right. The intervening parties
became aware of the decision in October 2021 and the applicants in
November 2021.
[67]
It is important to note that PAJA requires of the applicant to bring
review proceedings within
180 days, not only from the date when the
applicant ‘was informed of the administrative action or became
aware of the action
and the reasons,’ but from the date when
the applicant ‘
might
reasonably have been expected to have become aware of the action and
the reasons.’
[76]
[68]
In
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited
[77]
the SCA, with reference to
Gqwetha
v Transkei Development Corporation
[78]
on the importance of the delay rule, drew a distinction between
administrative acts which affect and are then challenged by an

individual and those which affect the public at large and said:
‘
In
its terms,
sections 7(1)
envisages asking when “
the
person concerned
”
was informed or became aware, or might reasonably be expected to have
become aware, of the administrative action. This admits
of an answer
where the act affects and is challenged by an individual, but does
not readily admit of an answer
where
it affects the public at large
.
In
that situation, it would be anomalous-if not absurd- even if the
administrative act were to be reviewable at the instance of
one
member of the public, and not at the instance of one another,
depending upon the peculiar knowledge of each. It seems to me
that in
those circumstances a court must take a broad view of when the public
at large might reasonably be expected to have had
the knowledge of
the action, not dictated by knowledge or lack of it, of the
particular member or members of the public who have
chosen to
challenge the acts.’
[79]
(Emphasis
supplied)
[69]
There is, however, a dimension to these proceedings which
distinguishes it from
OUTA
.
(a)
In terms of
section 3(2)
(b)
(iii)
of PAJA, in order to give effect to the right to procedurally fair
administrative action, an administrator must give persons
materially
and adversely affected by the decision a clear statement of the
administrative action. The affected person should at
least be able to
tell from the statement what has been decided, when, by whom, and on
what legal and factual bases. Without this
information, notice of any
right of appeal or review would be pointless.
[80]
(b)
Section 3(2)
(b)
(iv)
requires that the persons concerned also be notified of any right of
review or internal appeal where applicable. This requirement
is
repeated in
regulation 23(
b
)
of the Regulations on Fair Administrative Procedures, 2002
[81]
which requires adversely affected persons to be informed of
administrative action that has been taken. In terms of
regulation 25
,
a notice contemplated in
regulation 23
(b)
must also, where applicable, stipulate the period, if any, in which
the review or appeal proceedings must be instituted; state
the name
and address of the person with whom proceedings for review or appeal
must be instituted; and set out any other formal
requirements in
respect of the proceedings for review or appeal.
(c)
Provision is made in MPRDA
[82]
for the lodging of an appeal by any person whose rights or legitimate
expectations have been materially and adversely affected
or who is
aggrieved by any administrative decision in terms of MPRDA within 30
days of becoming aware of such decision.
(d)
Section 3(2)
(b)
(v) provides for the giving of adequate notice
to the person concerned of the right to request reasons.
[70]
PAJA is incorporated by reference in
section 6
of the MPRDA, which
reads:
‘
(1)
Subject to the Promotion of Administrative Justice Act, 2000 (Act 3
of 2000), any administrative process conducted or decision
taken in
terms of this Act must be conducted or taken, as the case may be,
within a reasonable time and in accordance with the
principles of
lawfulness, reasonableness and procedural fairness.
(2) Any decision
contemplated in subsection (1) must be in writing and accompanied by
written reasons for such decision.’
[71]
Section 6 of the MPRDA is subservient to section 3(2)
(b)
of
PAJA. Therefore, it is incumbent on the Minister or his delegate to
give notice of the award of an exploration right and its
renewals in
writing to interested and affected parties, to inform them of their
right to lodge a review or an appeal against the
decision and of
their right to request reasons for the decision. Neither section 6 of
MPRDA nor section 3(2)
(b)
of PAJA was complied with by the
ministry.
[72]
Shell argued, with reference to
BDSA
,
[83]
that the public including the applicants, must, objectively, be
deemed to have known about the granting of the exploration right
and
the renewals by no later than 2020. This contention is unavailing.
According to
BDSA
,
the notification merely afforded the interested and affected parties
a 30-day period for comment. In this case, there is not a
shred of
evidence that the intended recipients of the notice were informed of
their right to review or appeal the decision, or
the right to request
reasons for the decision. The notice relied on by the respondents
falls foul of the requirements of section
3(2)(
b
).
[73]
The failure by the Minister or his delegate to comply with section
3(2)
(b)
of PAJA is fatal to the respondents’ preliminary
point that the applicants delayed in bringing the review proceedings.
Such
failure negates the suggestion that the applicants are
reasonably expected to have become aware of the action and the
reasons therefor.
[74]
Accordingly, the 180 days period in question did not start running
before November 2021. There
was, therefore, no delay in bringing this
application, let alone an unreasonable delay.
Exhaustion
of internal remedies
[75]
Section 7(2)
(a)
of PAJA requires a court to review an
administrative action in terms of PAJA where an internal remedy
provided for in any other
law has first been exhausted.
[76]
Section 96(3) of MPRDA provides that no person may apply to the court
for the review of an administrative
decision made in terms of MPRDA
until that person has lodged an appeal against the administrative
decision and the appeal process
has been exhausted.
[77]
However, a court may, in exceptional circumstances, and on
application by the person concerned,
exempt such person from the
obligation to exhaust such remedy before instituting proceedings in a
court for judicial review in
terms of PAJA.
[84]
What constitutes exceptional circumstances depends on the facts and
the circumstances of the case and the nature of the administrative

action in issue.
[85]
[78]
The applicants did not lodge an appeal. Four reasons are advanced:
First, they became aware of
the grant and renewals of the exploration
right in November 2021, some 7 years after the exploration right was
initially granted.
Second, when they launched an application for the
grant of urgent interdictory relief the commencement of the impugned
seismic
survey was imminent and following the internal process would
have defeated the purpose of approaching the court for effective
relief.
Third, because of the agreement reached by the parties to
expedite timeframes for the resolution of part B, it became incumbent

on the applicants to pursue the main application and avoid any delay
that would have arisen from pursuing an internal appeal. Fourth,
the
applicants harboured an apprehension that the Minister is biased
against them- an apprehension fortified by the statements
he made
criticising public interest groups for challenging seismic surveys
and maintaining his refusal to review Shell’s
exploration
rights. Also, in circumstances where the Minister could simply have
abided the decision of the court in relation to
the grant of part A
of the application, which he was initially minded to do, he ended up
being partisan and opposing the interdictory
relief.
[79]
The respondents have not pertinently engaged with the applicants
regarding their reasons for
not pursuing an internal appeal. The
overwhelming evidence is that the applicants were not aware of the
Minister’s decision
to grant the exploration right prior to
November 2021. It should be borne in mind that there had been a
failed attempt to interdict
the seismic survey on 30 November 2021.
The imminence of the survey when the current proceedings were
launched should be viewed
against that background.
[80]
The Minister has tendered a bald denial to the allegations of bias.
He offered no explanation
for his change of mind, and sudden
opposition to Part A of the application, for having publicly
criticised interest groups who
challenged the survey and maintaining
his refusal to review Shell’s exploration rights.
[81]
The rule against bias is entrenched in the Constitution, which places
a high premium on the substantive enjoyment of rights.
Any existing
administrative remedy has to be an effective one. A remedy will be
effective if it is objectively implemented, taking
into account the
relevant principles and values of administrative justice present in
the Constitution and our law.
[86]
The
reasons proffered by the applicants in their request to be exempted
from exhausting internal remedies are good for the intervening

parties as well. The public statements made by the Minister do give
rise to a reasonable apprehension of bias against the applicants
and
relieve the applicants and the intervening parties of the duty to
exhaust their internal remedies as such appeal would have
been an
exercise in futility.
[82]
This is a classic case of an internal remedy that would not have been
objectively implemented
and which would have rendered nugatory the
values of administrative justice enshrined in the Constitution and
upheld by PAJA. Not
even the belated reliance by Impact on
Ncumcara
Community Forest Management Association v The Environmental
Commissioner
[87]
detracts from this conclusion. The case is distinguishable on the
facts and the law; whilst upholding the principle on exhaustion
of
domestic remedies, the court accepted that in very exceptional
circumstances a case in which domestic remedies have not been

exhausted may be entertained if doing so will achieve justice between
the parties. In any event, the instant case is, for the reasons

already advanced, “
very
exceptional.
”
[83]
The applicants have, therefore, made out a proper case for being
exempted from the obligation
to exhaust internal remedies.
Do
the grounds for the review of the impugned decisions pass muster?
[84]
The applicants assail the three administrative decisions
[88]
in terms of PAJA under the following sub-headings:
(a)
procedural unfairness;
(b)
failure to take into account relevant
considerations; and
(c)
failure to comply with applicable legal
prescripts,
all
of which are dealt with
seriatim
.
Procedural unfairness
[85]
According to the applicants, the decision to grant the exploration
right is procedurally unfair
because Impact failed to adequately
consult (or consult at all) with interested and affected communities,
including the applicants.
Impact and Shell’s contention, on the
other hand, is that the obligation imposed upon Impact by MPRDA
[89]
and the Regulations made thereunder was fulfilled.
[86]
The applicants’ contention is premised on the right to
procedurally fair administrative
action enshrined in the
Constitution, the provisions of MPRDA and the Regulations made
thereunder.
[87]
Law or conduct inconsistent with the Constitution is invalid and the
obligations imposed by it
must be fulfilled.
[90]
It is also settled law that the award of a prospecting right
constitutes administrative action.
[91]
The right to procedurally fair administrative action is enshrined in
section 33(1), and PAJA is the law contemplated in section
33(3) of
the Constitution. MPRDA makes provision for consultations to be made
with interested and affected parties, and so do the
Regulations.
[88]
In light of its centrality to the issue at hand,
regulation 3
of the
Mineral and Petroleum Resources Development Regulations
[92
]
deserves of being quoted copiously. It reads:
‘
3.
Consultation with interested and affected
persons
(1)
The Regional Manager or designated agency,
as the case may be, must make known by way of a notice, that an
application contemplated
in
regulation 2
, has been accepted in
respect of the land or offshore area, as the case may be.
(2)
The notice referred to in sub-regulation
(1) must be placed on a notice board at the office of the Regional
Manager or designated
agency, as the case may be, that is accessible
to the public.
(3)
In addition to the notice referred to in
sub-regulation (1) the Regional Manager or designated agency, as the
case may be, must
also make known the application by at least one of
the following methods –
(a)
Publication in the applicable Provincial
Gazette;
(b)
Notice in the Magistrate’s Court in
the magisterial district applicable to the land in question; or
(c)
Advertisement in a local or national
newspaper circulating . . . where the land or offshore area to which
the application relates
is situated.
(4)
A publication, notice or advertisement
referred to in sub-regulation (3) must include -
(a)
An invitation to members of the public to
submit comments in writing on or before a date specified in the
publication, notice or
advertisement, which date may not be earlier
than 30 days from the date of such publication, notice or
advertisement;
(b)
The name and official title of the person
to whom any comments must be sent or delivered; and
(c)
The –
(i)
Work, postal and street address and if
available, an electronic mail address;
(ii)
Work telephone number; and
(iii)
Facsimile number, if any, of the person
contemplated in paragraph (b).’
[89]
The procedure that was followed by Impact in this instance is
adumbrated in paragraph [19]. Repeating
the same would unnecessarily
overburden this judgment. What remains to consider is whether the
procedure stands the requirements
of the Constitution and the law.
[90]
As already stated, the consultants identified the interested and
affected parties, not through
a public process, but through an
analysis of potential stakeholders engaged in previous similar
studies in the area. The EMPr does
not explain what “
stakeholder
analysis
” denotes. There is a dearth of information as to
what “
previous studies in the area
” means. There
is no evidence that the applicant communities were involved in such
studies. Despite Impact having been aware
of numerous communities in
the area concerned, there is nothing from a reading of the papers
pointing to Shell or Impact or the
consultants as having conducted
investigations to unleash the identity of the communities.
Consequently, the communities did not
form part of the stakeholder
database. This disadvantaged the communities as they ended up not
receiving the relevant background
information, and, eventually, not
being consulted.
[91]
The first time the consultants endeavoured to reach out to the public
was when an advert was
publicised in newspapers on 22 March 2013
informing the broader public about the proposed exploration
activities. It is also not
in dispute that the newspapers are out of
reach of the Dwesa-Cwebe, Xolobeni and the Pondoland area
communities. When the newspapers
finally came to hand, they turned
out to have been in the English and Afrikaans languages, which
members of the affected communities
barely understood as they are
Xhosa speaking.
[92]
It is very telling that the Transkei monarchs or communities thereof
were not invited and did
not attend any of the consultation meetings.
It would seem Impact and Shell were content to consult with only the
monarchs or the
communities, adopting the ill-begotten stance that
such consultations sufficed. That view was clearly incorrect. From a
reading
of the application papers, it is evident that the traditional
leaders concerned urged the consultants to deal directly with members

of the affected communities, to no avail. In any event, the top-down
approach whereby kings or monarchs were consulted on the basis
that
they spoke for all their subjects is a thing of the past which finds
no space in a constitutional democracy. There is no law,
and none was
pointed to, authorising traditional authorities to represent their
communities in consultations. In any event, the
applicant communities
do not fall within the kingdoms listed in the EMPr.
[93]
For purposes of MPRDA, a community means ‘a group of
historically disadvantaged persons
with interests or rights in the
particular area of land on which the members have or exercise
communal rights in terms of an agreement,
custom or law: Provided
that, where as a consequence of the provisions of this Act,
negotiations or consultations with the community
is required, the
community shall include the members or part of the community directly
affected by mining on land occupied by such
members or part of the
community.’ Therefore, the community is a separate entity from
the Chief and “
Chief
”
does not denote the community. In this regard, the following remarks
on the nature of communal participation made by Petse
AJ in
Maledu
and Others v Itereleng Bagatla Mineral Resources (Pty) Ltd and
Another
[93]
are illuminating:
‘
However,
in instances where land is held on a communal basis, affected parties
must be given sufficient notice of and be afforded
a reasonable
opportunity to participate, either in person or through
representatives, at any meeting where a decision to dispose
of their
rights to land is to be taken. And this decision can competently be
taken only with the support of the majority of the
affected persons
having an interest in or rights to the land concerned, and who are
present at such a meeting.’
[94]
The respondents criticise the applicants for adopting a pedantic
approach. They contend that
MPRDA and the Regulations were given
effect to; the Regulations require that the public be notified in two
languages, which was
done. The requirements of regulation 3, so argue
the respondents, were fulfilled. Had the applicants been of the view
that regulation
3 was invalid because it does not meet the
requirements of the Constitution and the law, they should have
assailed it accordingly,
which they never did. I disagree.
[95]
In the first place, meaningful consultations consist not in the mere
ticking of a checklist,
but in engaging in a genuine,
bona fide
substantive two-way process aimed at achieving, as far as possible,
consensus, especially in relation to what the process entails
and the
import thereof. Moreover and in any event, the Constitution, PAJA,
MPRDA and the Regulations apply contemporaneously to
the impugned
consultation process. The prescripts of MPRDA and regulation 3 are
subject to the Constitution and PAJA. Therefore,
it is within the
prism of the Constitution and PAJA that regulation 3 should be
interpreted.
[96]
In
Zondi
v MEC for Traditional and Local Government Affairs
[94]
the Constitutional Court explained the applicable position as
follows:
‘
PAJA
was enacted pursuant to the provisions of s 33, which requires the
enactment of national legislation to give effect to the
right to
administrative action. PAJA therefore governs the exercise of
administrative action in general. All decision-makers who
are
entrusted with the authority to make administrative decisions by any
statute are therefore required to do so in a manner that
is
consistent with PAJA. The effect of this is that statutes that
authorise administrative action must now be read together with
PAJA
unless, upon a proper construction, the provisions of the statutes in
question are inconsistent with PAJA.’
[97]
The importance of meaningful consultations where, as in the present
matter, communal rights are
at stake, was clarified as follows in
Bengwenyama
:
[95]
‘
Another
more general purpose of the consultation is to provide land owners or
occupiers with the necessary information on everything
that is to be
done so that they can make an informed decision in relation to the
representations to be made, whether to use the
internal procedures if
the application goes against them and whether to take the
administrative action concerned on review. The
consultation process
and its result is the integral part of the fairness process. . .
The consultation process
required by section 16(4)
(b)
of the Act thus requires that the
applicant must:
(a)
inform the land owner in writing that his application for prospecting
rights on the owner’s land
has been accepted for consideration
by the Regional Manager concerned;
(b)
inform the land owner in sufficient detail of what the prospecting
operation will entail on the land, in
order for the land owner to
access what impact the prospecting will have on the land owner’s
use of the land;
(c)
consult with the land owner with a view to reach an agreement to the
satisfaction of both parties in
regard to the impact of the proposed
prospecting operation; and
(d)
submit the result of the consultation process to the Regional Manager
within 30 days of receiving notification
to consult.’
[98]
Admittedly,
Bengwenyama
dealt with consultation in the context
of a prospecting right application. However, there is no reason in
logic why the principle
enunciated in the case and its rationale
should not apply to an exploration right application.
[99]
For all we know, contrary to the provisions of regulation 3, the
consultants did not “
make
known
”
by way of a notice that there was an exploration application
underway; no notice accessible to the public was placed on
a notice
board at a place determined to be accessible to the public; the
consultants purportedly “[made]
known
”
to the public by way of provincial and national newspapers (not a
local newspaper). The
Times
,
[96]
Die
Burger
(Eastern Cape) and the
Herald
have little coverage in Transkei. In any event,
Die
Burger
is in Afrikaans, a language that is hardly spoken in Transkei. There
is no gainsaying that over the years, especially since 1976,
[97]
Afrikaans fell into disuse in Transkei where the majority of
inhabitants are Xhosa speaking.
[98]
To the extent that the
Daily
Dispatch
circulates widely in the Transkei and Algoa areas, it did not reach
the applicant communities at Xolobeni and Dwesa-Cwebe. In any
event,
they would not have understood the advert because they are not
conversant with English. Had the consultants and those who
mandated
them been serious about reaching out to the applicant communities,
they would have seen their way clear to utilising a
newspaper that is
in a language spoken by the majority of people in the area concerned.
I’solezwe
lesiXhosa
or
broadcast in
Umhlobo
Wenene
radio station would have yielded better results.
[100]
In these circumstances, the object of regulation 3, in so far as it
provides that the notice must let the affected
and interested parties
know and that the notice must be accessible to all affected
communities, was thwarted. This is a clear case
where little regard
(or no regard at all) was paid to the significance of language as a
tool of communication.
[101]
The consultation process was woefully lacking in yet another respect;
after the initial project information had
been compiled and availed
“
online,
” a website was provided for interested
and affected persons to have access to more information. Much as in
this age and era
computers and other similar devices are more
ubiquitous than flies on a summer day, this court does not hesitate
in taking judicial
notice of the fact that a great number of the
population, especially in rural communities, still lacks access to
these devices.
The applicant communities are part of those who are
still disadvantaged. The majority of members of aMadiba community are
on record
as not having access to email or internet facilities. In
these circumstances, the distribution of the relevant information
document
by email and on the website would be neither accessible nor
effective as a consultation tool within aMadiba community.
[102]
What this all translates to is that Impact did not give the applicant
communities proper notice of the nature
and purpose of the proposed
seismic survey, the information required to make meaningful
representation, or the opportunity to make
representations. At the
hearing, some time was spent debating what the affected and
interested communities would have said had
they been consulted. The
fact that the communities might have had little or nothing to say
regarding whether or not the exploration
right should be granted is
not germane to the enquiry whether the communities were entitled to
meaningful consultation.
[99]
[103]
In sum, therefore, the consultation carried out by Impact was
procedurally unfair. The decision to grant the exploration
right
falls to be reviewed on this ground alone, in terms of section
6(2)
(c)
of
PAJA.
[100]
The renewals
depend upon the grant of the exploration right whose process has been
proven to have been fatally defective.
[101]
By the same token, the decisions to renew the exploration right also
fall to be reviewed.
[104]
The corollary of the inadequate consultation process is that factors
that the applicants and the intervening parties
would have placed
before the Minister to inform the decision-making process were not
considered.
[105]
Because it takes a single bad reason to render the entire decision
reviewable,
[102]
the
applicants need only prove one ground of the review to succeed in
assailing the grant of the exploration right.
[103]
However, for the sake of completeness and in view of the importance
of this matter, it behoves this court to deal, albeit in a
truncated
fashion, with other review grounds, as well, which is what is
considered next.
Failure
to take into account relevant considerations.
[106]
Section 6(2)
(e)
(iii) of PAJA provides for judicial review
where action was taken without taking into account relevant
considerations.
[107]
The fundamental considerations that are said to be absent from the
EMPr and the record filed in terms of rule
53 of the Uniform Rules of
Court in these proceedings are –
(a)
the anticipated harm to the marine and bird
life along the Eastern Cape coast;
(b)
the communities’ spiritual and
cultural rights and their rights to livelihood; and
(c)
the climate change considerations and
requirements advocated by the intervening parties.
These
considerations are, in turn, dealt with one after the other.
[108]
For their contention that the anticipated harm to marine and bird
life is a fundamental consideration, the applicants
rely on the
evidence of experts. The experts are in agreement that there is a
reasonable apprehension of harm to marine and bird
life and that the
mitigation measures proposed by Shell and Impact do not adequately
manage the threat of harm. The applicants’
experts emphasise
the need for evidence ruling out a significant risk of harm before
the seismic survey may be conducted. The respondents,
likewise, rely
on experts to refute the suggestion of possible harm to marine and
bird life. They suggest that the detrimental
effect of seismic
surveys are not known and that, in so far as there is a possibility
of death or stranding of marine animals from
exposure to sound from
seismic surveys, there are appropriate mitigating and monitoring
measures in place.
[109]
Because of the apparent dispute between the experts as to the
adequacy of the mitigation measures minimising the
known effects of
seismic surveys, it would have been incumbent on the decision-maker
to invoke the precautionary principle. In
Fuel
Retailers
,
[104]
the duty imposed on environmental authorities was examined. The court
emphasised that the approach adopted in our environmental
legislation
is one of risk-aversion and caution, which entails ‘taking into
account the limitation on present knowledge about
the consequences of
an environmental decision.’
[105]
It was further held that the precautionary principle is applicable
‘where, due to unavailable scientific knowledge, there
is
uncertainty as to the future impact of the proposed
development.’
[106]
[110]
The onus rests on the party refuting the applicability of the
precautionary principle to establish that the principle
is of no
application.
[107]
[111]
The institutional competence of judges to make decisions relating to
which considerations are relevant and which
are not is a perilous
course that has the potential to turn judges into
administrators.
[108]
Notwithstanding this, the courts’ power to review decisions on
the basis of relevant and irrelevant considerations was affirmed
in
Johannesburg
Stock Exchange v Witwatersrand Nigel Ltd
.
[109]
The advent of PAJA has fortified the position, so much so that
post-1994 law reports abound with instances in which relevant
considerations
were not taken into account at all, resulting in the
review court setting aside the action.
[110]
[112]
Apropos the complaint that the Minister failed to consider the
relevant communities’ spiritual and cultural
rights and their
rights to livelihood, an apt starting point are the instructive
remarks by O’ Regan J in
MEC
for Education, KwaZulu-Natal and Others v Pillay
.
[111]
She said:
‘
My
understanding of how our Constitution requires us to approach the
rights to culture, therefore, emphasising four things: cultural

rights are associative practices which are protected because of the
meaning that shared practices give to individuals and to succeed
in a
claim relating to a cultural practice a litigant will need to
establish its associative quality; an approach to cultural right
in
our Constitution must be based on the value of human dignity which
means that we value cultural practices because they afford

individuals the possibility and choice to live a meaningful life;
cultural rights are protected in our Constitution in the light
of a
clear constitutional purpose to establish unity and solidarity
amongst all who live in our diverse society; and solidarity
is not
best achieved through simple toleration arising from a subjectively
asserted practice. It needs to be built through institutional
enabled
dialogue.’
[113]
This judgment, especially on the aspect under discussion, would be
incomplete without reference being made to
the following remarks by
Bloem J in
Sustaining
the Wild Coast NPC
:
[112]
‘
I
accept that customary practices and spiritual relationship that the
applicant communities have with the sea may be foreign to
some and
therefore difficult to comprehend. How ancestors can reside in the
sea and how they can be disturbed, may be asked. It
is not the duty
of this court to seek answers to those questions. We must accept that
those practices and beliefs exist. What this
case is about is to show
that had Shell consulted with the applicant communities, it would
have been informed about those practices
and beliefs and would then
have considered, with the applicant communities, the measures to be
taken to mitigate against the possible
infringement of those
practices and beliefs. In terms of the Constitution those practices
and beliefs must be respected and where
conduct offends those
practices and beliefs and impacts negatively on the environment, the
court has a duty to step in and protect
those who are offended and
the environment.’
[114]
The remarks, though made in the context of a temporary interdict, are
timeless in their force and application.
The issue is whether it was
incumbent on the relevant authorities to consider the spiritual and
cultural rights at the particular
point when the decision-making
process was under way. It will be for the administrative functionary
concerned (and not this court)
to give due weight to this
consideration in light of all other factors serving before it.
Approaching it differently would usurp
the functions of the
administrative tribunal.
[115]
The applicant communities contend that they bear duties and
obligations relating to the sea and other common resources
like our
land and forests; it is incumbent on them to protect natural
resources, including the ocean, for present and future generations;

the ocean is the sacred site where their ancestors live and so have a
duty to ensure that their ancestors are not unnecessarily
disturbed
and that they are content. If there is a potential for disturbance,
they contend, they must be given the opportunity
to follow their
customary practices for dealing with the anticipated disturbance.
[116]
In his affidavit, Mr Zukulu states that the sea plays an important
role in his community’s way of life;
it is a key part of their
livelihood. They collect mussels, limpets, oysters and cray-fish.
They also fish for a range of species,
including king fish as well as
garrick, kob and shad. Sea food, to this community, forms a vital
part of their diet and contributes
to the fact that their community
has some of the lowest rates of hunger in South Africa. Sea food
provides them with income as
they are able to sell their catches to
tourists and neighbours on a cash basis. They are concerned that the
proposed seismic survey
will have an impact on their ability to
sustain themselves from the sea.
[117]
Mr Zukulu has also averred that, even as lay persons, they are
already seeing signs of climate change in his area:
their agriculture
is becoming more challenging as they experience much more
unpredictable weather patterns and more extreme weather
events such
as more droughts and heavier downpours of rain. Their livestock is
sick more often. As a coastal community, they are
very concerned
about the prospect of rising sea levels.
[118]
According to Shell and Impact, no harm will ensue from the seismic
survey because it will be conducted approximately
20 km into the sea,
away from the shore. They also contend that measures have been put in
place to mitigate and monitor possible
death or stranding of marine
mammals from exposure to sound from seismic surveys.
[119]
There is no evidence that when the impugned decisions were taken the
possibility of harm was considered. None
of the measures contended
for by the respondents addresses the potential harm to the applicants
and their religious or ancestral
beliefs and practices. In any event,
there is no evidence of the decision-maker having taken into account
the alleged remedial
measures.
[120]
The intervening parties’ contention that the decision-maker
gave no proper consideration to the climate
change impacts of the
decision to grant the exploration right is an important factor to be
considered in the process of granting
an exploration right.
[121]
Reliance for this contention, by the intervening parties, is placed
on expert testimony
[113]
showing that most of the discovered reserves of oil and gas cannot be
burnt if we are to stay on the pathway to keep global average

temperature increases below 1.5 degrees Celsius. Authorising new oil
and gas exploration, with its goal of finding exploitable
oil and/or
gas reserves and consequently leading to production, is not
consistent with South Africa complying with its international
climate
change commitments.
[122]
According to the respondents, climate change considerations and the
right to access food and livelihood are irrelevant
when considering
an application for an exploration right; these considerations are
premature because they fall to be considered
at a much later stage.
[123]
On the authority of
Director:
Mineral Development, Gauteng Region and Another v Save the Vaal
Environment and Others
[114]
the processes are discrete stages in a single process that culminates
in the production and combustion of oil and gas, and the
emission of
greenhouse gases that will exacerbate the climate crisis and impact
communities’ livelihoods and access to food.
[124]
The respondents’ thesis does not find support from
Earthlife
Africa Johannesburg v Minister of Environmental Affairs and
Others
,
[115]
either, where Murphy J said:
‘
The
absence of express provision in the statute requiring a climate
change impact assessment does not entail that there is no legal
duty
to consider climate change as a relevant consideration and does not
answer the interpretative question of whether such a duty
exists in
administrative law. Allowing for the respondents’ argument that
no empowering vision in NEMA or the regulations
explicitly prescribes
a mandatory procedure or condition to conduct a formal climate change
assessment, the climate change impacts
are undoubtedly a relevant
consideration as contemplated by section 240 of NEMA for the reasons
already discussed. A formal expert
report on climate change impacts
will be the best evidentiary means of establishing that this relevant
factor in its multifaceted
dimensions was indeed considered, while
the absence of one will be symptomatic of the fact that it was
not.
[116]
’
[125]
It seems clear from the aforegoing, even taking into account the
contentions raised by the respondents, that, had the
decision-maker
had the benefit of considering a comprehensive assessment of the need
and desirability of exploring for new oil
and gas reserves for
climate change and the right to food perspective, the decision-maker
may very well have concluded that the
proposed exploration is neither
needed nor desirable.
[126]
The intervening parties have added another fundamental factor which
they claim was not considered namely, failure
by the decision-maker
to take the factors mentioned in ICMA into account when making the
relevant decision. Section 12 of ICMA
makes the State the public
trustee of coastal public property and casts a duty on the State to
ensure that coastal public property
is used, managed, protected,
conserved and enhanced in the interest of the whole community.
Section 21 confers the power upon an
organ of state that is legally
responsible for controlling and managing any activity on or in
coastal waters to control and manage
the activity in the interest of
the whole community.
[127]
There is no doubt that the Minister and his delegate constitute an
organ of State responsible for managing activities
on or in coastal
waters when they consider applications for an exploration right, even
one that entails seismic surveys.
[128]
The Minister has not disputed that the provisions of ICMA were not
considered. He was merely content to argue
that the provisions of
ICMA are only triggered if and when an environmental authorisation
under NEMA is required. This is a legal
argument. The deponent to the
Minister’s affidavit is a functionary who did not take any of
the impugned decisions. Her affidavit
offers no basis upon which she
could give evidence concerning what was in the mind of the
decision-maker at the time they took
the impugned decision.
[129]
The obligations imposed upon organs of state in terms of section 12
and 21 of ICMA are not triggered only in the
event that an
environmental authorisation is required. It is only section 63 which
is conditional on the requirements of an environmental
authorisation
in terms of NEMA.
[130]
The area to which the exploration right applies enjoys a special
legal status that affords the environment and
within this area a
particularly high level of protection and necessitates that decisions
affecting it be taken in a manner that
complies with the requirements
of ICMA. One of the objectives of ICMA is to introduce an integrated
approach to management and
in this instance, the decision-maker did
quite the opposite and dealt with the application as an energy
sector-specific issue.
[131]
The Minister was duty bound to take into account the considerations
referred to in ICMA. As a matter of fact,
he did not do so. This, in
and by itself, renders the impugned decision reviewable.
[132]
By way of summation, the failure on the part of the Minister to take
into account the considerations dealt with
above is fatal to the
decision to grant the exploration right and the renewals thereof,
rendering these reviewable in terms of
section 6(2)
(e)
(iii) of
PAJA.
Failure to comply with
applicable legal prescripts.
[133]
In terms of section (6)(2)
(b)
of PAJA, a court has the power
to review an administrative action in the event that legal prescripts
were not complied with. The
applicants seek to assail the decision
granting the exploration right on this front, as well.
[134]
There was non-compliance, they argue, with section 80(1)
(g)
of
MPRDA in that the objects referred to in section 2
(d)
and
(f)
of MPRDA were not satisfied. These are substantial and meaningful
expansion of the opportunities for historically disadvantaged
persons
to enter into and actively participate in the mineral and petroleum
industries, benefit from the exploitation of the nation’s

mineral and petroleum resources, promote employment and advance the
social and economic welfare of all South Africans.
[135]
Much as there were statements made in the EMPr that the seismic
survey would create jobs and increase government
revenues etc, no
detail to substantiate these claims is made; no explanation as to how
the jobs will be created, and how the economy
will be stimulated, or
how the seismic survey will improve the socio-economic circumstances
in which most South Africans live are
provided.
[136]
On this additional ground, too, the impugned decisions are liable to
be set aside.
Should
the declaratory and interdictory relief be granted
?
[137]
Additional to the review, the applicants seek an order which in
effect declares that the fifth respondent is not
entitled to commence
any exploration activities, including conducting a seismic survey,
without seeking and obtaining an environmental
authorisation in terms
of NEMA. The setting aside of the decision granting the exploration
right and its renewals renders it unnecessary
for the court to
determine the applicants’ entitlement to the declaratory
relief. There is no longer any dispute between
the parties in need of
resolution by way of a declaratory order.
[138]
The prayer to interdict the fourth and fifth respondents from
undertaking seismic survey operations under the
exploration right
unless and until they obtain an environmental authorisation in terms
of NEMA is sought in the alternative to
the declaratory and review
relief. The success of the review will render this prayer redundant.
The review and setting aside of
the decision granting the exploration
right will have the effect of removing the right (including the
renewals thereof) in its
entirety resulting in Shell being prohibited
from conducting the seismic survey.
Conclusion
[139]
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.
Therefore, the decision granting the exploration right falls to be
reviewed under section 6(2) of
PAJA and the principle of legality.
Logically, the renewals 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.
Costs
[140]
The applicants have attained substantial success and are thus
entitled to their costs. In view of the complexity
of the case and
its importance to the parties, the involvement of more than one
counsel in each of the legal teams was warranted.
Such involvement
redounded to a smooth and structured hearing and culminated in the
determination of this matter.
Order
[141]
The following order is, therefore, made:
1.
The decision taken by the first
respondent on 29 April 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 is reviewed and set aside.
2.
The decision taken by the first
respondent on 20 December 2021 to grant a renewal of the exploration
right is reviewed and set aside.
3.
The decision taken by the first
respondent on 26 August 2021 to grant a further renewal of the
exploration right is reviewed and
set aside.
4.
The first, fourth and fifth
respondents shall pay costs of this application, jointly and
severally, the one paying the other to
be absolved, such costs to
include, in the case of the first to seventh applicants, the costs of
three counsel and, in the case
of the eighth and ninth applicants,
the costs of two counsel.
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
NHLANGULELA
DJP:
I
agree.
Z
M NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
NORMAN
J:
I
agree.
T
V NORMAN
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the 1
st
to 7
th
applicants
:
T Ngcukaitobi SC
(with him,
E Webber
and
N Stein
)
Instructed
by

:        Legal Resources Centre
Cape
Town
C/o
Huxtable Attorneys
Makhanda
Counsel
for the 8
th
and 9
th
applicants
:
N Ferreira
(with
him
C Tabata
)
Instructed
by

:        Cullinan & Associates
Kenilworth,
Cape Town
C/o
Huxtable Attorneys
Makhanda
Counsel
for the 1
st
respondent
:
A Beyleveld SC
(with him,
A Barnet
)
Instructed
by

:        The State Attorney
Gqeberha
C/o
Whitesides Attorneys
Makhanda
Counsel
for the 4
th
respondent
:
J J Gauntlett SC QC
(with
him,
F B Pelser
,
A Nacerodien
and
N M Nyathi
)
Instructed
by

:        Cliffe Dekker Hofmeyer
Inc
Cape
Town
C/o
Wheeldon, Rushmere & Cole Inc
Makhanda
Counsel
for the 5
th
respondents
:
A Friedman
(with
him,
S Pudfin-Jones
)
Instructed
by

:        Shepstone & Wylie
Attorneys
UMhlanga
Rocks, Durban
C/o
Nettletons Attorneys
Makhanda
Heard
on

:
30 & 31 May 2022
Delivered
on

:
01 September 2022
[1]
Otherwise
referred to as the Eastern Cape coast. Part of this coast is a 250
km strip commonly known as the “
Wild
Coast
”
straggling the Mthamvuma River in the North and the Great Kei River
to the South.
[2]
A
seismic survey is the study in which seismic waves generated through
compressed air are used to image layers of rock below the
seafloor
in search of geological structures to determine the potential
presence of naturally occurring hydrocarbons (i.e. oil
and gas).
[3]
The
section reads:
‘
Everyone
has a right –
(a)
to an environment that is not harmful to
their health or well-being; and
(b)
to have the environment protected, for the
benefit of present and future generations, through reasonable
legislative and other
measures that –
(i)
prevent pollution and ecological
degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable
development and use of natural resources while promoting justifiable
economy and social development.’
[4]
(CCT
67/06)
[2007] ZACC 13
;
2007 (10) BCLR 1059
(CC);
[2007] (6) SA 4
(CC); (07 June 2007), para 44.
[5]
SWC.
[6]
The
Dwesa-Cwebe Community.
[7]
Made
up of the Mendwane, Hobeni, Cwebe, Ngoma, Ntlangano, Mpume and
Ntubeni villages.
[8]
By
virtue of being a marine protected area, some of the concerns raised
in this application would otherwise have no bearing on
this area.
The view taken of this matter and the orders to be eventually
granted render this aspect of the case unnecessary to
deal with.
[9]
All
Rise.
[10]
GPAF.
[11]
MPRDA.
[12]
NEMA.
[13]
ICMA.
[14]
NEMBA.
[15]
Shell.
[16]
Impact.
[17]
These
objectives are set out in an annexure to Impact’s answering
affidavit, being a letter addressed to PASA, dated 08
May 2017.
[18]
The
Deputy Director-General.
[19]
The
Transkei Algoa Exploration area is located between Port Elizabeth in
the Eastern Cape Province (33˚ 54’S, 23˚
36’)
and Ramsgate in the KwaZulu-Natal Province (30˚ 40’S, 30˚
20’E). The Transkei part of the area
extends along a narrow
strip of the continental shelf to a maximum distance of
approximately 135 km of the Eastern Cape coastline.
The Algoa part
is located further offshore immediately South of the continental
shelf, approximately 100 km from the Port Elizabeth
shoreline. The
proposed exploration areas cover an area of approximately 45,838
km².
[20]
In
relevant part, the section provides:
‘
(1)
Any person who wishes to apply to the Minister for an exploration
right must lodge the application-
(a)
at the office of the designated agency;
(b)
in the prescribed manner; and
(c)
together with the prescribed
non-refundable application fee.”
(2)
The designated agency must, within 14 days of the receipt of the
application, accept an
application
for an exploration right if-
(a)
the requirements contemplated in
subsection (1) are met;
(b)
no other person holds a technical
co-operation permit, exploration right or production right for
petroleum over the same
land and area applied for; and
(c)
no prior application for a technical
co-operation permit, exploration right or production right over the
same mineral, land and
area applied for has been accepted.’
[21]
EMPr.
[22]
PASA.
[23]
These
are -
‘
(a)
a description of the environment likely to be affected by the
proposed prospecting or mining operation;
(b)   an
assessment of the potential impacts of the proposed prospecting or
mining operation on the environment, socio-economic
conditions and
cultural heritage, if any;
(c)    a
summary of the assessment of the significance of the potential
impacts, and the proposed mitigation and
management measures to
minimise adverse impacts and benefits;
(d)
financial provision which must include –
(i)
the determination of the quantum of the
financial provision contemplated in regulation 54; and
(ii)
details of the method providing for the
financial provision contemplated in regulation 53;
(e)
planned monitoring and performance assessment of the environment
management plan;
(f)
closure and environmental objectives;
(g)   a record of
the public participation undertaken and the results thereof; and
(h)   an
undertaking by the applicant regarding the execution of the
environmental management plan.’
[24]
22
March 2013 to 12 April 2013.
[25]
24
May to 24 June.
[26]
On
03 June 2013. Port Elizabeth is now known as “
Gqeberha
.”
[27]
On
04 June.
[28]
On
05 June.
[29]
AbaThembu,
amaMpondo of the East and of the West and amaXhosa monarchs. The
“
Transkei
”
territory is a former black homeland which gained self-governing
status in 1963 and was granted “
independence
”
in 1976. Transkei did not receive international recognition as an
independent State, having been considered to be a product
of
apartheid. Following a multiracial election that took place in 1994,
apartheid came to an end and Transkei, together with
other
homelands, was reabsorbed into South Africa. The appellation
“
Transkei
”
is nevertheless used in this judgment for the sake of convenience.
[30]
Exploration
Right 12/3/252 (otherwise hereinafter referred to as the exploration
right).
[31]
Impact
assigned 75% participating interest in the exploration right to
EMEPSAL and became 25% participating interest holder. By
notarial
deed dated August 2017 EMEPSAL assigned the interest to and in
favour of STATOIL South Africa BV (Incorporated in Netherlands)

(STATOIL). In terms of the deed, the participating interest of the
parties in the exploration right were: EMEPSAL, 40%; STATOIL,
35%;
and Impact, 25%.
[32]
The
same exercise appears to have been conducted in 2013, as well.
[33]
Seismic
surveys are undertaken to collect either 2-dimensional (2D) or
3-dimensional (3D) data. The 2D survey provide a vertical
slice
though the earth’s crust along the survey trackline. The
vertical scales on displays of such profiles are generally
in 2-way
sonic time, which can be converted to depth displays by using sound
velocity data. 2D surveys are typically applied
to obtain regional
data from widely spaced survey grids (10s of kilometres) (para
2.3.2, EMPr).
[34]
A
3D survey comprises a toed airgun array; up to 12 or more lines of
hydrophones spaced 5 to 10m apart and between 3m and 25m
below the
water surface (the array can be upwards of 12 000m long and
1200 m wide); and a control and recording system co-ordinating
the
firing of shots, the recording of returned signals and accurate
position fixing (Id).
[35]
At
this point in time, EMEPSAL had a 40% interest; Equinor (formally
STATOIL), 35%; and Impact, 25%. EMEPSAL further recorded
that it had
withdrawn from the exploration right and that it had no objection to
Impact making the renewal application in its
sole name. Likewise,
and by virtue of a joint operating agreement, Equinor (together with
EMEPSAL) consented to the transfer
of its entire participating
interest in the exploration right to Impact.
[36]
SLR,
otherwise referred to as “
the
consultants
.”
[37]
In
this instance, the Amazon Warrior.
[38]
An
airgun is an underwater pneumatic device from which high pressure
air is released suddenly into the surrounding water. On release
of
pressure, the resulting bubble pulsates rapidly producing an
acoustic signal that is proportional to the rate of change of
the
volume of the bubble. The acoustic signal propagates through the
water and subsurface and reflections are transmitted back
to the
surface. The sound source must be submerged in the water, typically
at a depth of 5 to 25 metres (para 2.3.4 of the EMPr).
[39]
Airguns
are used on an individual basis (usually for shallow water surveys).
Arrays of airguns are made of towed parallel strings
of airguns
(usually comprised of between 12 and 70 airguns) and are normally
towed between 50 meters and 100 meters behind the
seismic vessel.
The airgun would be fired at approximately 10 to 20 second intervals
at an opening pressure of between 2000 to
2500 bsi and a volume of
3000 to 5000 cubic inches (para 2.3.4 EMPr).
[40]
Per
Govindjee AJ.
[41]
Border
Deep Sea Association v Minister of Mineral Resources & Energy
(3865/2021) [2021] ZAECGHC 111 (03 December 2021); 2021 JDR 3208
(ECG).
[42]
Border
Deep Sea Angling Association & Others v Minister of Mineral
Resources & Energy & Others
(3865/2021) [2022] ZAECMKHC 38 (07 June 2022) (
BDSA
).
[43]
Part
A.
[44]
At
that point, Part B comprised a prayer interdicting the third, fourth
and fifth respondents from undertaking seismic survey
operations
under the exploration right unless and until they have obtained an
environmental authorisation under NEMA.
[45]
Per
Bloem J.
[46]
Sustaining
The Wild Coast NPC and Others v Minister of Mineral Resources and
Energy and
Others (3491/2021) [2021] ZAECGHC 118;
[2022] All SA 796
(ECG);
2022
(2) SA 585
(ECG) (28 December 2021).
[47]
The
first to seventh applicants seek an order that –
‘
1.
The fifth respondent may not undertake any seismic survey if it has
not been granted an environmental authorisation
in terms of [NEMA].
2.
The decision taken by the first respondent, on 29 April 2014, to
grant an exploration right to the
fourth respondent to explore for
oil and gas in the Transkei and Algoa exploration areas . . . is
reviewed and set aside.
3.
The decision taken by the first respondent, on 20 December 2017, to
grant a renewal of exploration
right 12/3/252 is reviewed and set
aside.
4.
The decision taken by the first respondent, on 26 August 2021, to
grant a further renewal of exploration
right 12/3/252 is reviewed
and set aside.
5.
The decision to allow the fifth respondent to commence the seismic
survey without the environmental authorisation
in terms of NEMA is
declared to be invalid and is set aside.
6.
The applicants’ failure to exhausts internal remedies in
respect of the decisions in 2, 3, 4,
and 5 is condoned.
7.
The time period of 180 days in section 7 (1) of PAJA is extended, in
accordance with section 9 of PAJA,
to the date that the review
relief in Part B was instituted.
8.
In the alternative to 2 - 7, the fourth and fifth respondents are
interdicted from undertaking seismic
survey operations under
exploration right 12/3/252 unless and until they obtain an
environmental authorisation in terms of NEMA.
9.
The applicants are granted leave to file the supplementary affidavit
of Reinford Sinegugu Zukulu, together
with all supporting affidavit
annexed thereto.
10.   The
first, fourth and fifth respondents are ordered to pay the
applicants’ costs.’
[48]
The
Act.
[49]
By
reason of the Makhanda High Court, as the main seat (in terms of
section 6 (1)
(a)
of the Act), having concurrent jurisdiction with the various local
seats (Mthatha, Bhisho and Gqeberha ) in which the cause of
action
arose.
[50]
These
measures are the invocation of international standards, including
additional mitigation measures specific for the area concerned;
the
reduction of the sound source output to its lowest practically
possible level; the engagement of qualified independent marine

mammal observers (MMO) and passive acoustic monitoring (PAM)
operators who will be on-board the vessel to observe and record

responses of marine fauna to the seismic survey; the implementation
of a dedicated MMO and PAM pre-shoot watch of at least 60
minutes to
ensure that there are no diving seabirds, turtles, seals or
cetaceans within 800 metres of the seismic source; the
carrying out
of airgun firing as soft-starts of at least 20 minutes duration; the
suspension of the survey if cetaceans enter
the 800 metre mitigation
zone or if there are mortality or injuries as a direct result of the
survey; and steering clear of declared
marine protected areas with a
5 kilometre buffer zone being maintained around MPAs exceeding the
current standard in South Africa
of a 2 kilometre buffer zone around
MPAs.
[51]
Initially,
the first respondent had evinced a determination to abide the
decision of the court, but suddenly changed stance and
filed
answering papers shortly before the delivery of the applicants’
replying affidavit.
[52]
Public
statements made by the Minister criticizing the applicants and
aligning himself with Shell in its desire to conduct the
seismic
survey on the basis that the EMPr “
constitutes
an environmental authorisation as envisaged by the NEMA
.”
[53]
Compare
MEC
for Health, Eastern Cape v Khumbulela Melane
(2017/2015) [2022] ZAECMHC 4 (15 March 2022), where the court upheld
the salutary approach of seeking condonation for the delivery
of
supplementary papers.
[54]
SA
Riding for the Disabled Association v Regional Land Claims
Commissioner and Others
(CCT172/16) [2017] ZACC4;
2017 (8) BCLR 1053
(CC);
2017 (5) SA 1
(CC) (23 February 2017), para 9.
[55]
SA
Riding
case,
supra
.
[56]
Nelson
Mandela Metropolitan Municipality v Greyvenouw CC
2004 (2) SA 81
(SE) at 89B - C.
[57]
Section
38(a).
[58]
Section
38(b).
[59]
Section
38(c).
[60]
Section
38(d).
[61]
Section
38(e).
[62]
Section
32(1) (e) of NEMA.
[63]
1996(1)
SA 984 (CC);
1996 (1) BCLR 1
(06 December 1995), para 229.
[64]
Beukes
v Krugersdorp Transitional Local Council and Another
1996 (3) SA 467
(W) at 474 E – H.
[65]
Minister
of Social Development and Others v Net1 Applied Technologies South
Africa (Pty) Ltd and Others
[2018] ZASCA 129
(27 September 2018).
[66]
PAJA.
[67]
In
relevant part, the section provides that the period of 180 days
referred to in section 7 may be extended by a court on application

by the person concerned where the interests of justice so require.
[68]
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van
Kaapstad
1978 (1) SA 13
(A);
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale
Vervoerkommissie
1986 (2) SA 57
(A);
Gqwetha
v Transkei Development Corporation Ltd and Others
2006
(2) SA 603 (SCA).
[69]
(4842/99)
[2000] ZAWCHC 9
;
2001 (2) SA 112
(C) (20 October 2000), at 126E - G.
[70]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
(CCT
27/03)
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC)
(12 March 2004);
Pharmaceutical
Manufacturers Association of SA and Others
:
In
re: Ex parte application of President of the RSA and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) paras 45 and 51; 2000 (3) BCLR 241 (CC).
[71]
(308/2011)[2012]
ZASCA 45;
[2012] 2 All SA 462
(SCA), para 34.
[72]
Mr
Poovalingum Moodley.
[73]
[2008]
ZASCA 6
;
2008 (3) SA 371
(SCA), para 13.
[74]
Malawu
v MEC for Co- operative Governance and Traditional Affairs, Eastern
Cape and Another
(CA & R 118/2021) [2022] ZAECMKHC 27 (31 May 2022), paras 53 -
5.
[75]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[76]
Section
7 (1)
(b
)
of PAJA.
[77]
OUTA
v SANRAL
(90/2013)
[2013] ZASCA 148
;
[2013] 4 All SA 639
(SCA) (09 October 2013).
[78]
2006
(2) SA 603
(SCA), paras 22 – 3.
[79]
OUTA
,
supra
,
para 27.
[80]
Hoexter
and Penfold, Administrative Law in South Africa (3
rd
Ed), p 521; also see
Police
and Prisons Civil Rights Union and Other v Minister of Correctional
Services and Others
(No 1) (603/05)
[2006] ZAECHC 4
;
2008 (3) SA 91
(E);
[2006] 2 All SA
175
(E);
2006 (8) BCLR 971
(E); [2006] 4 BLLR (E) 12 January 2006),
where Plasket J held that administrative decisions taken in
violation of the rules of
procedural fairness are invalid,
irrespective of the merits.
[81]
Made
in terms of PAJA and published in
GN
R1022, G. 23674 dated 31 July 2002.
[82]
Section
96 of MPRDA.
[83]
Supra
,
para 29, which reads:
‘
It
must be noted that ERM sent a notification of its environmental
audit report to the entire interested and affected parties’

database from the 2013 process. This data base included a few
hundred people including Stone and Mr JC Rance, the environmental

office for the first applicant and now Chair of the second
applicants. That notification, sent on 20 May 2020, is headed
“Notification
to Stakeholders: Environmental Compliance Audit
related to exploration right 12/3/252, in substantial compliance
with Regulation
34 (6) of the EIA Regulations GNR326 of April 2017.
“it references the exploration right and that there was an
approved
EMPr, and afforded interested and affected parties a 30-day
for comment. No comments were received.’
[84]
Section
7(2)
(c)
.
[85]
Koyabe
and others v Minister of Home Affairs and others (Lawyers for human
rights as amicus curiae)
[2009]
ZACC 23
;
2009 (12) BCLR 1192
(CC);
2010 (4) SA 327
(CC), para 39.
[86]
Koyabe
,
supra,
para 44.
[87]
(HC-MD-CIV-MOT-GEN-2022/00289
[2022] NAHCMD 380 (29 July 2022), submitted in terms of paragraph
61.11 of the Code of Conduct of
all Practitioners, Candidate Legal
Practitioners and Juristic Entities.
[88]
The
original decision granting Impact the right to explore for oil and
gas in the Transkei and Algoa areas and the two renewals
thereof.
[89]
Section
79 of MPRDA (fn 20 above).
[90]
Section
2 of the Constitution.
[91]
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others
2011(4) SA 113 (CC).
[92]
Published
in GNR 420 of 27 March 2020.
[93]
2019
(2) SA 1
(CC), para 97.
[94]
2005
(3) SA 589
(CC), para 101.
[95]
Supra
,
paras 66 - 7.
[96]
Also
known as the “Sunday Times”, circulating on Sundays.
[97]
In
pursuit of the separate development policy, the Constitution of the
“
Republic
of Transkei
”
scrapped off Afrikaans as an official language, in favour of
isiXhosa, in Transkei. Much as Afrikaans was reinstated as
one of
the nine official languages, the country over in 1994, the usage of
Afrikaans has not regained foothold in Transkei. The
2016 community
survey conducted by statistics South Africa reveals that 10.29% of
the Eastern Cape population speaks Afrikaans.
OR Tambo and Alfred
Nzo district municipalities (making up the greater part of Transkei)
records 0,18% and 0.21%, respectively,
Afrikaans speakers.
[98]
According
to South Africa gateway tabulating languages that are spoken in
South Africa’s nine provinces in the Eastern Cape
78.8% of the
population speak isiXhosa and 10.6% Afrikaans.
[99]
Compare
Administrator
of the Transvaal and Others v Zenzile and Others
(444/88)
[1990] ZASCA 108
;
1991 (1) SA 21
(AD);
[1991] 1 All SA 240
(A) (27 September 1990) wherein Hoexter JA made reference to the
following statement (in Wade, Administrative Law (6
th
ed) pp 533-4):
‘
Procedural
objections are often raised by unmeritorious parties. Judges may
then be tempted to refuse relief on the ground that
a fair hearing
could have made no difference to the result. But in principle it is
vital that the procedure and the merits should
be kept strictly
apart, since otherwise the merits may be prejudiced unfairly.’
[100]
The
section provides that ‘a court or tribunal has the power to
judicially review an administrative action if the action
was
procedurally unfair.’
[101]
See
Magnificent
Miletrading 30 (Pty) Ltd v Charmaine Celliers NO and Others
(CCT157/18)
[2019] ZACC 36
;
2020 (1) BCLR 41
(CC);
2020 (4) SA 375
(CC)[2017] ZACC 36, where it was held:
‘
The
proper enquiry in each case - at least at first – is not
whether the initial act was valid but rather whether its substantive

validity was a necessary precondition for the validity of consequent
acts. If the validity of consequent acts is dependent on
no more
than the factual existence of the initial act then the consequent
act will have legal effect for so long as initial act
is not set
aside by a competent court.’
[102]
Patel
v Witbank Town Council
1931 TPD 284
; compare
Westinghouse
Electric Belgium SA v Eskom Holdings
(SOC)
Ltd and Another
(476/2015)
[2015] ZASCA 208
;
[2016] 1 All SA 483
(SCA);
2016 (3) SA
1
(SCA) (9 December 2015), paras 44-5 where it was held:
‘
It
is a well-established principle that if an administrative body takes
into account any reason for its decision which is bad,
or
irrelevant, then the whole decision, even if there are other good
reasons for it, is vitiated.
.
. . Once a bad reason plays a significant role in the outcome it is
not possible to say that the reasons given for it provide
a rational
connection to it. (The decision of this court was reversed by the
Constitutional Court but this principle was not
questioned:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2)
SA 24
(CC) . . .’
[103]
Also
see
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration and Others
2007 (1) SA 576
(SCA) (2006) 27
ILJ
2076;
[2006] 11 BLLR 1021
;
[2007] 1 All SA 164)
para 24 where
Cameron JA said that ‘(t)his dimension of rationality in
decision-making predates its constitutional formulation.’
[104]
Supra
.
[105]
Supra
,
para 81.
[106]
Supra
,
para 98.
[107]
Space
Securitisation (Pty) Ltd v Trans Caledon Tunnel Authority and Others
[2012]
4 All SA 624 (GSJ).
[108]
Hoexter
and Penfold, ibid, p 439.
[109]
1988
3 SA 32
(A) at 541-2.
[110]
See
for example
SA
Jewish Board of Deputies v Sutherland NO and Others
2004 (4) SA 368
(W), paras 29-30;
Pieterse
NO v The Master
2004 (3) SA 593
(C), para 13 and
NSPCA
v Minister of Environmental Affairs and Others
2020 (1) SA 249
(GP), para 75.
[111]
[2007] ZACC 21
;
2008
(1) SA 474
(CC), para 157 (minority judgment).
[112]
Supra
,
para 32.
[113]
Professor
New.
[114]
(133/98)
[1999] ZASCA 9
(12 March 1999).
[115]
(2017)
JOL 37526
(GNP); [2017] ZAGPPHC (GP); [2017] 2 All SA 519 (GP).
[116]
Para
88.