IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case no: 5676/2024

In the matter between:

THE GREEN CONNECTION NPC First Applicant

NATURAL JUSTICE Second Applicant

And


MINISTER OF FORESTRY, FISHERIES
AND THE ENVIRONMENT
First Respondent

MINISTER OF MINERAL RESOURCES AND ENERGY

Second Respondent

DIRECTOR GENERAL: DEPARTMENT OF
MINERAL RESOURCES AND ENERGY

Third Respondent
TOTAL ENERGIES EP SOUTH AFRICA
BLOCK 567 (PTY) LTD

Fourth Respondent
SHELL EXPLORATION & PRODUCTION
SOUTH AFRICA B.V.
Fifth Respondent

JUDGMENT DELIVERED ELECTRONICALLY ON 13 AUGUST 2025


MANGCU-LOCKWOOD, J

A. INTRODUCTION

[1] There are three applications before th is Court: a review in terms of the
Promotion of Administrative Justice Act 3 of 2000 ( “PAJA”), which is the main
application, a condonation application for the late institution of the review, and an
application by the fourth respondent ( “Total”) for joinder of Shell Exploration and
Production South Africa BV (“Shell”) as the fifth respondent.

[2] The review application concerns the granting of an environmental
authorization (“the EA”) to Total in terms of the National Environmental Management
Act 107 of 1998 (“NEMA”), for the purpose of conducting exploration drilling to
determine whether geological structures contain oil or gas - fossil fuels - in potentially
extractable amounts.

[3] The application for an EA was lodged with the Department of Mineral
Resources and Energy, and was granted by its Director -General, the third
respondent (“the DG”) on 17 April 2023. On 24 September 2023 the first respondent
(“the Minister”) dismissed the applicants ’ internal joint appeal against the DG's
decision (“the appeal decision”). It is these two decisions that are the subject of the
review application.

[4] The applicants are public interest organisations whose activities include
protecting, preserving and conserving the environment. They bring this application in
their own interest, in the public interest and in the interest of protecting the
environment. They also participated in the process which led to the granting of the
EA.

[5] The second respondent is the Minister of Mineral Resources and Energy,
responsible for the administration of the Mineral and Petroleum Resources
Development Act 28 of 2002 (“MPRDA”).

[6] It is common ca use that Total and its co -venture partners, Shell and the
Petroleum Oil and Gas Corporation of South Africa SOC Ltd ( “PetroSA”), are the co-
holders of an Exploration Right 12/3/224 (“ER 224”), which was granted in terms of
section 80 of the MPRDA in respect of the offshore areas known as Block 5/6/7.
Block 5/6/7 is situated off the South -West Coast of South Africa, roughly between
Cape Town and Cape Agulhas. The area of interest is approximately 10 000km 2 in
extent. It is approximately 60km from the coast at its closest point and 170km at its
furthest, at water depths of between 700m and 3 200m.

[7] ER 224 allows for the undertaking of various exploration operations, includ ing
two-dimensional (2D) seismic, three -dimensional (3D) seismic and controlled source
electromagnetic surveys , which have now been undertaken within Block 5/6/7.
Based on the analysis of the acquired seismic data, T otal intends to drill one
exploration well and, success dependent, up to four additional wells within the area
of interest in Block 5/6/7.

[8] The proposed exploration operations include activities listed in Listing Notices
1 and 2 of the Environmental Impact Assessment Regulations, 2014 ( “the EIA
Regulations”) and as a result, require application for an EA in terms of NEMA.

B. THE INTERLOCUTORY APPLICATIONS

The Condonation

[9] The applicants seek condonation because the review application was only
properly served in terms of the Uniform Rules some 51 days late upon the Minister,
29 days late upon the second respondent and the DG, and 10 days late upon Total.

[10] Since t he appeal decision was issued on 24 September 2023 , and the
applicants were notified thereof on 3 October 2024, the review application was due

by 1 April 2024, which was the statutorily prescribed 180 days deadline in terms of
section 7 (1) of PAJA. Instead, the late timeframes mentioned above meant that
service was effected on 10 April 2024 upon Total, 9 May 2024 upon the DG and the
second respondent, and 21 May 2024 upon the Minister.

[11] The condonation application is not opposed. The applicants exp lain that ,
although t hey issued the review application on 20 March 2024 and served it
electronically on 22 March 2024 , within the prescribed 180 days, i t only contained
four of the many annexures attached to the founding affidavit, with some pages of
the foun ding affidavit omitted. The founding papers were voluminous, running to
some 1614 pages . And some of the attached annexures were not initialled by the
deponents or the commissioner of oath. All of the se omissions were rectified in the
papers that were later physically served by the sheriff.

[12] They explain that there were logistical difficulties experienced in the printing of
the documents, as well as some back and forth travelling to the residence of the
commissioner of oaths after hours. In addition , it appears that the initial physical
service upon Total, which was attempted on 9 April 2024, was served at an incorrect
address. Total took issue with that as well as the electronic service to which it had
not consented. For its part , the Pretoria State Attorney refused to accept service on
15 April 2024 because the papers had been issued out of the Western Cape High
Court, and as a result the papers were served directly upon the first to third
respondents on 9 and 21 May 2024.

[13] As I have stated , the condonation application is not opposed. The errors and
omissions have now been rectified. All the affected parties have filed papers in
response to the application and accordingly there is no prejudice caused to any of
them. There is furthermore no dispute that the issues raised in the application are

them. There is furthermore no dispute that the issues raised in the application are
important matters of public interest , and that it is in the interests of justice that the y
should be fully ventilated. The explanation for delay is also not disputed . The
condonation application is accordingly granted.

The Joinder

[14] Next for consideration is the joinder application, which is opposed only by the
applicants. For its part, S hell delivered a n affidavit recording its support for the
joinder, making common cause with the contentions set out in Total's answering
affidavit to the main application, and recording that it adopts those contentions and
defences as its own. It was accordingly not necessary to adjourn or postpone the
proceedings pursuant to the joinder application, and in fact , the parties agreed to
argue the joinder, condonation and review applications compositely.

[15] The joint venture which holds the rights to ER 224 comprises Total, Shell and
PetroSA who hold undivided participating interests of 40%, 40% and 20%,
respectively. The ER 224 records that PetroSA ceded 80% of an undivided share to
Total1 which was endorsed on 20 May 2023, and Total ceded an undivided
participating interest of 40% in favor of Shell which was officially endorsed on the ER
224 on 4 June 2021.

[16] Total states that, subsequent to the gr anting of the EA by the DG on 18 April
2023 which is the subject of the review application, it has resigned from the joint
venture of which it has been the Operator, and Shell has been appointed as the
Successor Operator. It states that it has also commenc ed with the process of
assigning its undivided participating interest in ER 224 to Shell and Petro SA in
proportionate shares.

[17] In order to formalise its resignation, Total states that it will in due course apply
in terms of s 11 of the MPRDA for the second respondent’s prior written consent to
transfer its undivided participating interest in ER 224 to Shell and PetroSA, and in
terms of s 102 of the MPRDA for the amendment of the EA to reflect the transfer.

[18] On the basis of these developments, Total states that Shell has a direct and
substantial in interest to be joined in these proceedings a s the co-holder of the ER
224 which has applied for the EA, and is a prospective holder thereof on behalf of

224 which has applied for the EA, and is a prospective holder thereof on behalf of
the joint venture, subject to the approval of the amendment of the EA. Further, as the
Successive Operator of the joint venture it will undertake the proposed exploration

1 At the time, the name of Total was Anadarko South Africa Pty (Ltd), which was subsequently
changed and the name change endorsed on 3 May 2022.

activities on behalf of the joint venture, once the amendment of the EA to provide for
Shell as the holder has been approved. An order granted in the review application,
says Total, will be binding on all p arties whose interests will be affected , including
Shell.

[19] The applicants dispute that Shell has a direct and substantial interest in the
review application. First, they state that the review relates to the EA , not the
underlying exploration right ER 224. In any event, they state that since Total has yet
to apply to amend the EA and to transfer it to Shell, the alleged interest in the
proceedings amounts to and inchoate intention to the transfer of the EA, which does
not establish a legal interest in the subject matter of the review. The only interest that
Shell may have in the relief sought in the review is a contingent commercial interest
or spes in obtaining the transfer of the EA, neither of which amount to a legal
interest.

[20] Secondly, the applicants contend that ER 224 has in any event lapsed under
the MPRPA, given the statutory maximum length of an exploration right renewal set
out in sections 80(5) and 81 (4).

[21] Thirdly, the applicants state that the founding affidavit in the joinder
application cont radicts the content of the final environmental and social impact
assessment report (“the Final EIR”) prepared on behalf of Total as well as Total's
answering affidavit in the review application in relation to: (a) the identity of the party
who will drill the exploration wells under the EA; and (b) the mitigation measures that
will be in place for the project, and there can be no transfer of the EA without
evidence that Shell has equivalent mitigation measures.

[22] It is most convenient to first deal with the second contention - the applicants’
denial of the extant status of the ER 224. The ER 224 was registered in the minerals
and petroleum titles registration office on 31 August 2012 . On 29 October 2021,

and petroleum titles registration office on 31 August 2012 . On 29 October 2021,
Total lodged an application on behalf of the joint venture for the third renewal of ER
224 in terms of section 81 of the MPRDA, and states that the application is still
pending whilst the applicants dispute this.

[23] The application for renewal was lodge d with the Petroleum Agency SA
(“PASA”), which is the agency designated in terms of s 70 of the MPRDA 2, to
perform the functions set out in Chapter 6 of the MPRDA, including accepting and
processing exploration rights.

[24] The basis for the applicants’ denial is firstly a letter dated 25 May 2022 , in
which PASA’s then manager of licencing and regulation advis ed Total that the
renewal of the exploration right had been granted. Given the two-year validity period
of a renewed exploration right in terms of s 80, read with s 81, the applicants state
that it had expired at the earliest by 24 May 2024. The second basis is the
applicants’ statutory construction of the provisions of the MPRDA, to the effect that
an exploration right could not be valid in excess of 9 years.

[25] As regards the letter of 25 May 2022, Total denies receiving it, and explains
that it first came to its attention on 7 April 2025 when the applicants forwarded it to it,
after the institution of these proceedings. In reaction thereto, Total states it
contacted its erstwhile Managing Director (Mr Fayemi) to whom the correspondence
was purportedly addressed and who was in its employ at the date of the letter, and
he denies receiving the letter or knowing about its existence.

[26] In addition, Total conta cted PASA for clarification, and they confirmed by
means of a letter dated 15 April 2025 which is also attached to the replying affidavit
in the joinder, that the renewal application was still pending and had not been finally
determined. Neither Total nor PASA mentions the letter of 25 May 2022 in th e
correspondence of April 2025 , and PASA gives no explanation for th at
correspondence.

[27] It appears that the applicants also sent correspondence to PASA on 16 April
2025 to clarify the status of the ER224 an d received no answer. Save to complain
about the lack of explanation regarding the letter of 25 May 2022, the applicants

about the lack of explanation regarding the letter of 25 May 2022, the applicants
have not been able to refute the outcome of Total’s investigations.


2 The designated PASA by the second respondent was gazetted in GN R733 on 18 June 2004.

[28] PASA’s confirmation that the process of the renewal application i s still
pending must mean that, contrary to the contents of the letter of 25 May 2022, the
renewal right was not granted on 25 May 2022. There is nothing in the record to
gainsay the contents of the latest letter of 15 April 2025.

[29] In fact, Total has also attached to its replying affidavit an email from PASA’s
Chief Executive Officer dated 7 July 2023 , in which PASA advised T otal that it
intended to finalise the renewal application in respect of ER 224 only after all the
challenges to the EA had been concluded. This is yet further confirmation that as at
that date, which was after 25 May 2022, PASA considered the renewal application of
ER 224 as still pending.

[30] Turning to the statutory construction argument, the applicants state that on a
proper construction of the provisions of the MPRDA, the exploration right has lapsed.
They refer in this regard to sections 80(4) and 80(5), which provide as follows:

“(4) If the Minister refuses to grant an exploration right, the Minister must,
within 30 days of the decision, in writing notify the applicant of the
decision and the reasons therefor.

(5) An exploration right is subject to prescribed terms and conditions and is
valid for the period specified in the right, which period may not exceed
three years.

[31] The applicants state that the effect of sections 80 (4) and (5) of the MPRPA is
that the term of ER 224 could not have extended beyond 31 August 2021, which is
nine years from the effective date of the exploration right.

[32] Total counters this argument by reference to the express wording of s 81(5),
which provides as follows:

“(4) An exploration right may be renewed for a maximum of three periods
not exceeding two years each.

(5) An exploration in respect of which an application for renewal has been
lodged shall, notwithstanding its expiry date, remain in force until such
time as such application has been granted or refused.”

[33] The applicants state that, g iven the delays incurred during consideration of
renewal applications by the relevant administrators, it could not have been the
intention of the MPRDA to have near indefinite existence of an exploration right .
Such an interpretation, they state, would be at odds with the scheme of Chapter 6 of
the MPRDA, and the positive obligations imposed on exploration right-holders.

[34] They refer in this regard to the requirements placed upon an exploration right
holder to commence exploration operations within 90 days of the effective date of the
exploration right, and to continuously conduct exploration operations in accordance
with the approved exploration work programme.3 In addition, the applicants state that
the MPRDA does not treat the renewal of an exploration right as the grant of a new
right subject to a new effective date , and that a renewal constitutes continuation of
the original right.

[35] It is trite that the interpretation of statute is an objective unitary process where
consideration must be given to the language used in the light of the ordinary rules of
grammar and syntax; the context in which the provision appears; and th e apparent
purpose to which it is directed and the material known to those responsible for its
production4.

[36] And absent absurdity, the terms of a statute should be interpreted according
to their ordinary grammatical meaning, with the riders that 5: (a) statutory provisions
should always be interpreted purposively; (b) the relevant statutory provision must be
properly contextualised; and (c) statutes must be construed consistently with the

3 Although the applicants refer in their heads of argument to s 79(2) (a) and (c) of the MPRDA in this

regard, these requirements are contained in sections 82(2)(b) and (f).
4 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 4 SA 593
(SCA) para 18. Airports Company South Africa v Big Five Duty Free (Pty) Ltd and Others [2018]
ZACC 33; 2019 (5) SA 1 (CC) para 29. See C:SARS v United Manganese of Ka lahari (Pty) Ltd
(264/2019) [2020] ZASCA 16 (25 March 2020) para 8.
5 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16 ; 2014 (4) SA 474 (CC); 2014 (8)
BCLR 869 (CC) para 28.

Constitution, that is, where reasonably possible, legislative provisions ought to be
interpreted to preserve their constitutional validity.

[37] The most forceful point against the applicants’ argument is the express
wording of s 81(5) of the MPRDA, which is clear and not ambiguous. In terms thereof
an exploration right in respect of which an application for renewal has been launched
shall, notwithstanding its expiry date, remain in force until such time as the
application has been granted or refused.

[38] It seems obvious from the express wording of the pr ovision that the drafter
was anticipating the very issue that the applicants rely upon in this case, namely a
delay in the rendering of an outcome of the renewal application. That is the problem
sought to be cured by the provision. To decide otherwise, in accordance with the
argument of the applicants would achieve the very opposite of the policy decision
taken in drafting the provision. I also observe that the Supreme Court of Appeal
(SCA) in Sustaining the Wild Coast6 adopted the express wording of the provision,
without further ado.

[39] But even the facts do not favour the applicants’ argument. In PASA’s email of
7 July 2023, PASA took the view that the renewal application process should be
stayed pending the outcome of firstly, the appeal launched by amongst other the
applicants, and secondly a possible review application , which had not yet been
launched at that stage , but which e ventually transpired. The e-mail also state d that
PASA had been nearing finalisation of its consideration of the renewal application
when it reached that decision. None of this evidence is refuted by the applicants.

[40] Thus, any suggestion by the applicants of undue delays caused in this
instance by that functionary, is in part undermined by the contents of th e e-mail of 7
July 2023. Rather, the email suggests that it was the lodging of the appeal and th e

July 2023. Rather, the email suggests that it was the lodging of the appeal and th e
review, that has contributed to the extension of the period of the exploration right , at
least since July 2023.


6 Minister of Mineral Resources and Energy and Others v Sustaining the Wild Coast NPC and Others
(58/2023; 71/2023; 351/2023) [2024] ZASCA 84; 2024 (5) SA 38 (SCA) (3 June 2024) para [31].

[41] There is simply no support for the applicants’ argument that the ER 2 24 has
expired. Rather, the evidence is that it is still extant, and that the process of
considering its renewal has been stayed pending , amongst others , these
proceedings.

[42] Next is consideration of whether Shell has a direct and substantial interest in
these proceedings. The main complaint by the applicants is that the review relates to
the EA of which Shell is not a right-holder, and secondly, that no application has yet
been made for amendment of the EA to reflect Shell as the holder of the EA.

[43] However, it is not disputed that Shell remains a co -holder of ER 224. The
legal nature of the right held by Shell is set out in s 5 of the MPRDA, whic h provides,
in relevant part, as follows:

“(1) A prospecting right, mining right, exploration right or production right
granted in terms of this Act and registered in terms of the Mining Titles
Registration Act, 1967, (Act 16 of 1967), is a limited real right in respect
of the mineral or petroleum and the land to which such right relates.

(2) The holder of a prospecting right, mining right, exploration right or
production right is entitled to the rights referred to in this section and
such other rights as may be granted to, acquired by or conferred upon
such holder under this Act or any other law.

(3) Subject to this Act, any holder of a prospecting right, a mining right,
exploration right or production right may
…
(e) carry out any other activity incidental to prospecting, mining,
exploration or production operations, which activity does not
contravene the provisions of this Act.”

[44] Subsections (1) and (2) confirm that, as co -holder of ER224, Shell enjoys a
limited real right in respe ct of the mineral or petroleum and the land to which the
exploration right granted by ER 224, relates. Subsection (2) further confirms that its

limited real rights include, not only those expressly specified in ss (3) but also such
other rights as may be granted to, acquired by or conferred upon it under th e
MPRDA or any other law. Subsection (3)(e) confirms that Shell may carry out any
other activity incidental to prospecting, mining, exploration or production operations,
which activity does not contravene the provisions of the MPRDA.

[45] Those activities, in this case, include the activities for which the EA application
has been found to be necessary. The parties agree that the application for an EA is
necessary in these circumstances because the exploration operations proposed in
its application will trigger activities listed in Listing Notices 1 and 2 of the EIA
Regulations, including drilling in offshore wells. Had that not been a requirement, the
exploration activities might well have been conducted in terms of the ER 224, of
which Shell is already a co-holder.

[46] It is furthermore clear from the common cause facts that the proposed project
to be undertaken in t erms of the EA is to be the next phase following the exploration
operations already conducted in terms of the ER 224. The activities ar ise from the
analysis undertaken of the 2D and 3D seismic data surveys which were acquired in
terms of the ER 224. The drilling area, Block 5/6/7 , is to be the same as that in
respect of which the ER 224 is held by, amongst others, Shell , even without being
the operator of the joint venture, and even without amendment of the EA.

[47] All of these considerations confirm, in my view, that the EA is incidental to the
ER 224, as envisaged in ss 5(3)(e) . As a result, Shell has a legal interest in the
subject matter, which may be affected prejudicially by the judgment of the court in
the review proceedings.7

[48] As the Constitutional Court stated in Snyders8,


7 Judicial Service Commission and Another v Cape Bar Council and Another (818/2011) [2012]

7 Judicial Service Commission and Another v Cape Bar Council and Another (818/2011) [2012]
ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013] 1 All SA 40 (SCA) (14
September 2012) para [12]. See also Bowring NO v Vrededorp Properties CC 2007 (5) SA
391 (SCA) para 21.
8 Snyders and Others v De Jager (Joinder) (CCT186/15) [2016] ZACC 54; 2017 (5) BCLR 604 (CC)
(21 December 2016) para [9].

“A person has a direct and substantial interest in an order that is
sought in proceedings if the order would directly affect such a
person’s rights or interest. In that case the person should be
joined in the proceedings. If the person is not joined in
circumstances in which his or her rights or interests will be
prejudicially affected by the ultimate judgment that may result
from the proceedings, then that will mean that a judgment
affecting that person’s rights or interests has been given without
affording that person an opportunity to be heard. That goes
against one of the most fundamental principles of our legal
system. That is that, as a general rule, no court may make an
order against anyo ne without giving that person the opportunity
to be heard.”

[49] It is also not in dispute that, although the application for the EA was made in
the name of Total, it was in fact on behalf of the joint venture, of which Shell is a
member. Whether or not Shell is the operator of the joint venture, it stands to be
affected by the court’s outcome regarding the EA. The same consideration applies in
respect of whether or not Total applies for the amendment of the EA to reflect Shell
as the main holder.

[50] Moreover, it is not disputed that Total has resigned as the operator of the joint
venture, and that Shell remains a part of the joint venture. Further, that as a
consequence of Total’s resignation and withdrawal from the joint venture, the
arrangements to transfer the holder of the EA would have to be made, a lthough the
applicants complain about the delay with regard thereto.

[51] I therefore reach the conclusion that Shell has a legal interest in the subject
matter, which may be affected prejudicially by the judgment of the court in the review
proceedings.

[52] The next issue to consider is the applicants’ argument that the contents of the
joinder application contradict the con tents of the Final EIR and of Total’s answering

joinder application contradict the con tents of the Final EIR and of Total’s answering
affidavit, specifically in relation to: (a) the identity of the party who will drill the

exploration wells under the EA; and (b) the mitigation measures that will be in place
for the project; and there can be no transfer of the EA without evidence that Shell
has equivalent mitigation measures.

[53] In this regard the applicants have pointed to instances where Total has
referred interchangeably to it self and to the joint venture, stating that there are
unexplained contradictions. This issue is related to the previous discussion regarding
the joint venture. As I have already discussed, it is not disputed that the joint venture
exists, and that it holds the exploration right ER 224. However, in terms of the
statute, the ancillary EA rights can only be exercised by the right holder specified in
the EA.

[54] Regulation 29(1) of the EIA Regulations provides for transfer of an EA as
follows:

“An environmental authorisation may be amended by following the process
prescribed in this Part if the amendment

1) will not change the scope of a valid environmental authorisation, nor
increase the level or nature of the impact, which impact was initially
assessed and considered when application was made for an
environmental authorisation; or

2) relates to the change of ownership or transfer of rights and obligations.”

[55] Regulation 29(a) above, read with Regulation 30, provides that an
amendment will not be gra nted if it seeks to change the scope of the environmental
authorization or the level or nature of the impact already assessed when the
application for the EA was made.

[56] Total points to the above provisions to demonstrate that, regardless of the
applicants’ arguments, a transfer to Shell may not change the scope of the EA or the
level or nature of the impact already assessed when the application for the EA was
made. As a result, whether the identity of the party who will drill the exploration wells

is Total, or changes to Shell in the future, the party concerned will be required to
comply with the environmental and social impact assessments that have already
been made, which are part of the record. And that party will also be bo und by the
conditions set out in the EA. Furthermore, in any event, the competent authority must
still approve the transfer of the EA, and according to Regulation 30, it will have to be
satisfied that the conditions for the transfer are met.

[57] What appears from the papers and is not disputed is that the intention is for
the joint venture to exercise the same rights granted in terms of the EA . There is no
indication that, in seeking to transfer the rights of the EA to Shell, the scope of the
EA will change. That is in any event prohibited by the statute. The provisions above
make it clear that a transfer of an EA from one holder to another will not be granted if
there is any contradiction of the nature complained about by the applicants. That
determination stands to be made at the time that the transfer application is made and
by the competent authority, not now and not by this Court. As a result, the argument
raised does not rise to the level of denying the joinder of Shell to these proceedings.

[58] For all these reasons the joinder of Shell is granted. It has been shown to
have a legal interest in the subject matter, which may be affected prejudicially by the
judgment of th is Court in the review proceedings. The heading of this judgment will
accordingly reflect Shell as the fifth respondent in the review application.

C. THE REVIEW APPLICATION

[59] As already adverted to, t he proposed exploration i nvolves activities listed in
Listing Notices 1 and 2 of the the EIA Regulations, and as a result required
application for an EA in terms of s 24 of NEMA.

[60] Total’s EA application involved an impact assessment phase, during which
three technical studies and five specialist studies were commissioned to assess the

three technical studies and five specialist studies were commissioned to assess the
key potential impacts of the exploration activities and identify mitigation measures.
The technical modelling studies comprised: Drilling Discharges Modelling, Oil Spill
Modelling, and Underwater Noise Modelling. The specialist studies comprised: a
Marine Ecology Impact Assessment, a F isheries Impact Assessment, a Socio-

Economic Impact Assessment, a Cultural Heritage Assessment, and a Climate
Change and Air Emissions Impact Assessment. An independent peer review of the
Drilling Discharges Modelling and Oil Spill Modelling studies was also undertaken.

[61] Total’s scientific studies for the proposed exploration project were submitted
to PASA, who reviewed the studies and recommended approval of the EA, in terms
of s 24 of NEMA. The DG granted the EA on 17 April 2023.

[62] The applicants lodged an appeal agains t the DG’s decision to the Minister, in
terms of s 43 of NEMA read with the 2014 EIA Appeal Regulation s, and the Minister
dismissed the internal appeal on 24 September 2023 and confirmed the DG’s
decision to grant the EA.

[63] The applicants’ review challenges the Final EIR prepared on behalf of Total,
and the review grounds may be summarised as follows:

(a) Firstly, the Final EIR failed to properly assess, and the state
respondents failed to properly consider, the socio -economic impact of
the proposed project because it d id not assess the socio -economic
impact which a well blowout and consequent oil spill may cause on the
fishing industry and small scale fishers.

(b) Secondly, the decision-makers failed to consider the factors prescribed
by the National Environmental Management: Integrated Coastal
Management Act 24 of 2008 (“ICMA”).

(c) Thirdly, the Final EIR failed to assess, and the state respondents failed
properly to consider, the need and desirability of the proposed project
because no consideration was given to the climate change impacts
which will be caused by burning any gas discovered by the proposed
project.

(d) Fourthly, the Final EIR failed to assess, and the state respondents failed
to consider, the transboundary impacts of the proposed project, both on
Namibia and on international waters.

(e) Fifthly, neither the Final EIR no r the Environmental Management
Program Report ( EMPr) include Total’s Oil Spill Contingency Plan or
Blow Out Contingency Plan.

(f) Sixthly, PASA delivered an appeal response report which, at face value,
was submitted on behalf of the DG and was treated as such by the
Minister.

[64] Since the grounds of review target the sufficiency or otherwise of the Final
EIR and the assessments conducted t herein, it is apposite to begin with the
overarching statutory context.

[65] NEMA was enacted in order to give effect to s 24 of Constitution of the
Republic of South Africa 108 of 1996 (“the Constitution”),9 which provides as follows:

“Everyone has the 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 justi fiable
economic and social development.”


9 Fuel Retailers Association of Southern Africa v Director -General Environmental Management,
Department of Agriculture, Conservations and Environment, Mpumalanga Province 2007 (6) SA 4
(CC) (“Fuel Retailers”), para. 59.

[66] NEMA empowers the Minister to identify activities which may not commence
without an environmental authorisation, 10 and, together with the EIA Regulations, it
sets out the process through which such authorisations may be obtained.

[67] Section 2 of NEMA sets out environmental management principles which
apply to the actions of all organs of state that may significantly affect the
environment and which guide the interpretation of NEMA and any other law
concerned with the protection of the environment.

[68] Section 24(1) of NEMA provides as follows:

“24 Environmental authorisations
(1) In order to give effect to the general objectives of
integrated environmental management laid down in this
Chapter, the potential consequences for or impacts on the
environment of listed activities or specified activiti es must
be considered, investigated, assessed and reported on to
the competent authority or the Minister responsible for
mineral resources, as the case may be, except in respect
of those activities that may commence without having to
obtain an environmental authorisation in terms of this Act.”

[69] The provision requires that the potential environmental impacts of a listed
activity must be assessed. This is necessary to enable the decision -maker to decide
whether or not to authorise the undertaking of such activities, and to select the best
practicable environmental option.11

[70] The manner in which environmental impact assessments must be conducted
is regulated by sections 24(4) and 24O of NEMA and the EIA Regulations. These
assessments must be conducted by e nvironmental assessment practitioners, who
must be independent.12

10 NEMA, section 24(2).
11 NEMA, section 2(4)(b).
12 EIA Regulations, Regulations 12 and 13 (1)(a).

[71] As regards the prescribed content of assessments, s 24(4)(a)(iv) of NEMA
provides that the “procedures for the investigation, assessment and communication
of the potential consequences or impacts of activities on the environment must
ensure, with respect to every application for an environmental authorization …
investigation of the potential consequences for or impacts on the environment of the
activity and assessment of the significance of those potential consequences or
impacts”.

[72] Section 24(4)(b) provides that procedures for the investigation, assessment
and communication of the potential consequences or impacts of activities on the
environment must include, with respect to every application for an environmental
authorisation and where applicable, the following:

“(i) investigation of the potential consequences or impacts of the alternatives
to the activity on the environment and assessment of the significance of
those potential consequences or impacts, including the option of not
implementing the activity;

(ii) investigation of mitigation measures to keep adverse consequences or
impacts to a minimum;

(iii) investigation, assessment and evaluation of the impact of any propos ed
listed or specified activity on any national estate referred to in section 3 (2)
of the National Heritage Resources Act, 1999 (Act 25 of 1999), excluding
the national estate contemplated in section 3 (2) (i) (vi) and (vii) of that Act;

(iv) reporting on gap s in knowledge, the adequacy of predictive methods and
underlying assumptions, and uncertainties encountered in compiling the
required information;

(v) investigation and formulation of arrangements for the monitoring and
management of consequences for or impa cts on the environment, and the

assessment of the effectiveness of such arrangements after their
implementation;

(vi) consideration of environmental attributes identified in the compilation of
information and maps contemplated in subsection (3); and

(vii) provision for the adherence to requirements that are prescribed in a
specific environmental management Act relevant to the listed or specified
activity in question.”

[73] When considering applications for environmental authorisations, s 24O(1)
requires decision-makers to take into account all relevant factors, which may include
the following : environmental impacts or environmental degradation likely to be
caused if the application is approved or refused; measures that may be taken to
protect the environment from harm as a result of the activity which is the subject of
the application; measures that may be taken to prevent, control, abate or mitigate
any pollution, substantially detrimental environmental impacts or environmental
degradation; the a bility of the applicant to implement mitigation measures and to
comply with any conditions subject to which the application may be granted; and if
applicable, any feasible and reasonable alternatives to the activity which is the
subject of the application and any feasible and reasonable modifications or changes
to the activity that may minimise harm to the environment.

[74] In terms of i tems 2(d) of Appendix 3 of the EIA Regulations, the objective of
the environmental impact assessment process include the determination of the
following:

(a) the nature, significance, consequence, extent, duration and probability
of the impacts occurring to inform identified preferred alternatives; and

(b) degree to which these impacts can be reversed , may cause
irreplaceable loss of resources, and can be avoided, managed or
mitigated.

[75] The scope of assessment and content of environmental impact assessment
reports is regulated by I tem 3(h) of Appendix 3 , which states that a n environmental
impact assessment report must contain the information that is necessary for the
competent authority to consider and come to a decision on the application, and must
include the following:

“(h) a full description of the pr ocess followed to reach the proposed
development footprint within the approved site as contemplated in
the accepted scoping report, including:
(i) details of the development footprint alternatives considered;
(ii) details of the public participation process underta ken in terms of
regulation 41 of the regulations, including copies of the
supporting documents and inputs;
(iii) a summary of the issues raised by interested and affected
parties, and an indication of the manner in which the issues
were incorporated, or the reasons for not including them;
(iv) the environmental attributes associated with the development
footprint alternatives focusing on the geographical, physical,
biological, social, economic, heritage and cultural aspects;
(v) the impacts and risks identified including the nature,
significance, consequence, extent, duration and probability of
the impacts, including the degree to which these impacts-
(aa) can be reversed;
(bb) may cause irreplaceable loss of resources; and
(cc) can be avoided, managed or mitigated;
(vi) the methodology used in determining and ranking the nature,
significance, consequences, extent, duration and probability of
potential environmental impacts and risks;
(vii) positive and negative impacts that the proposed activity and
alternatives will have on the environment and on the community
that may be affected focusing on the geographical, physical,
biological, social, economic, heritage and cultural aspects;
(viii) the possible mitigation measures that could be applied and level
of residual risk;

(ix) if no alternative development footprints for the activity were
investigated, the motivation for not considering such; and
(x) a concluding statement indicating the location of the preferred
alternative development footprint within the approved site as
contemplated in the accepted scoping report.”

[76] In terms of Item 3(j) an environmental impact assessment report must also
include-

“an assessment of each identified potentially significant impact and risk,
including-
(i) cumulative impacts;
(ii) the nature, significance and consequences of the impact and risk;
(iii) the extent and duration of the impact and risk;
(iv) the probability of the impact and risk occurring;
(v) the degree to which the impact and risk can be reversed;
(vi) the degree to which the impact and risk may cause irreplaceable loss of
resources; and
(vii) the degree to which the impact and risk can be mitigated.”

[77] Section 24(7)(b) of NEMA provides:

“Procedures for the investigation, assessment and communication of
the potential impact of activities must, as a minimum, ensure . . .
investigation of the potential impact, including cumulative effects, of the
activity and its alternatives on the environment, socio -economic
conditions and cultural herita ge, and assessment of the significance of
that potential impact”.

[78] Discussing the requirements in sections 2(4)(i) and 24(7)(b) of NEMA, the
Constitutional Court in Fuel Retailers 13emphasized that the impact assessment of
proposed activities requires asses sment of the socio -economic benefits and
disadvantages of proposed activities. The Court continued as follows:

“[78] What must be stressed here is that the objective of considering the
impact of a proposed development on existing ones is not to stamp out
competition; it is to ensure the economic, social and environmental
sustainability of all developments, both proposed and existing ones.
Environmental concerns do not commence and end once the proposed
development is approved. It is a continuing concern. The
environmental legislation imposes a continuing, and thus necessarily
evolving, obligation to ensure the sustainability of the development and
to protect the environment. As the International Court of Justice
observed-
“in the field of environm ental protection, vigilance and
prevention are required on account of the often
irreversible character of damage to the environment and
of the limitations inherent in the very mechanism of
reparation of this type of damage.”
…
“[79] Second, the objective of this exercise, as NEMA makes it plain, is both to
identify and predict the actual or potential impact on socio -economic
conditions and consider ways of minimising negative impact while
maximising benefit. Were it to be otherwise, the earth would b ecome a
graveyard for commercially failed developments. And this in itself poses a
potential threat to the environment. One of the environmental risks
associated with filling stations is the impact of a proposed filling station on
the feasibility of filling stations in close proximity. The assessment of such
impact is necessary in order to minimise the harmful effect of the
proliferation of filling stations on the environment. The requirement to

proliferation of filling stations on the environment. The requirement to

13 Fuel Retailers Association of Southern Africa v Director -General: Environmental Management,
Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others
(CCT67/06) [2007] ZACC 13; 2007 (10) BCLR 1059 (CC); 2007 (6) SA 4 (CC) (7 June 2007) paras
[79] – [81].

consider the impact of a proposed development on socio -economic
conditions, including the impact on existing developments addresses this
concern.”

[79] In Fuel Retailers, the Constitutional Court held that where an environmental
decision-maker fails to consider an environmental impact it ought to have
considered, its dec isions stand to be reviewed and set aside in terms of section
6(2)(b) of PAJA, for failure to comply with a mandatory and material condition.14

[80] Similarly, in Philippi Horticultural 15 this Division held that where an
environmental impact assessment omitted relevant information, this restricted the
ability of the decision -maker to consider relevant information and resulted in their
decision being subject to review in terms of section 6(2)(b)(iii) and 6(2)(f)(ii) of PAJA.

[81] Regarding the consideration of review applications, it is well to repeat what
was stated by the SCA in Clairison’s CC16:

“It bears repeating that a review is not concerned with the correctness of a
decision made by a functionary, but with whether he performed the function
with which he was entrusted. When the law entrusts a functionary with a
discretion it means just that: the law gives recognition to the evaluation made
by the functionary to whom the discretion is entrusted, and it is not open to a
court to second -guess his evaluation. The role of a court is no more than to
ensure that the decision-maker has performed the function with which he was
entrusted. Clearly the court below … was of the view that the factors we have
referred to ought to have counted in favour of the application, whereas the

14 Fuel Retailers Association of Southern Africa v Director -General Environmental Management,
Department of Agriculture, Conservations and Environment, Mpumalanga Province 2007 (6) SA 4
(CC) para 89.
15 Philippi Horticultural Area Food and Farming Campaign v MEC for Local Government, Western

15 Philippi Horticultural Area Food and Farming Campaign v MEC for Local Government, Western
Cape 2020 (3) SA 486 (WCC), paras. 101 to 103. See also Earthlife Africa Johannesburg v Min of
Environmental Affairs 2017 2 ALL SA 519 (GP) paras 100 to 101
16 MEC for Environmental Affairs and Development Planning v Clairison’s CC 2013 (6) SA 235 (SCA)
para 18; since cited with approval in this Court by Rogers J in JH v Health Professions Council of
South Africa 2016 (2) SA 93 (WCC) para 23, by a unanimous Full Bench in Cape Town City and
Another v Da Cruz and Another 2018 (3) SA 46 2 (WCC) para 70 footnote 91 (not disturbed on
appeal), and by Sher J in Philippi Horticultural Area Food and Farming Campaign and Another v
MEC For Local Government, Western Cape And Others 2020 (3) SA 486 (WCC) para 92.

MEC weighed them against it, but that is to question the correctness of the
MEC’s decision, and not whether he performed the function with which he
was entrusted.”

[82] When a functionary is entrusted with a di scretion, the weight to be attached to
particular factors, or how far a particular factor affects the eventual determination of
the issue, is a matter for the functionary to decide, and as (s)he acts in good faith
(reasonably and rationally) a court of law cannot interfere. 17

[83] The question in proceedings for judicial review is not whether the best, or
most correct, decision has been made, but rather whether it is one that is lawful,
reasonable and procedurally fair. 18 With that background, I now turn to consider the
grounds of review.

D. FIRST GROUND: FAILURE TO CONSIDER SOCIO-ECONOMIC IMPACTS

[84] In the first review ground, the applicants state that the Final EIR failed to
properly assess the potential socio -economic impacts of the proposed project
despite identifying the risk of a blowout and oil spill as the greatest environment
threat from offshore drilling , rating it as having a ‘very high’ impact on the fishing
industry before mitigation, and ‘high’ after mitigation.

[85] They complain about the inadequate reference to these consequences in the
Final EIR , read with the Socio -Economic Impact Report (SEI Report) , which the y
state amounts to the following:

“Reduction in recreational, small -scale, and commercial fishing in the
impacted area, including near -shore and offshore fishing. This may
result in undermining fishing by the public at large.
Large scale effects on fishing operations would also be like ly to include
area closures and exclusion of fisheries from areas that may be polluted

17 MEC for Environmental Affairs and Development Planning v Clairison’s CC 2013 (6) SA 235 (SCA)
para 22
18 See Bo-Kaap Civic and Ratepayers Association and Others v City of Cape Town and Others

18 See Bo-Kaap Civic and Ratepayers Association and Others v City of Cape Town and Others
[2020] 2 All SA 330 (SCA) paras 70-75 and the authorities cited there.

or closed to fishing due to contamination of surface waters by oil or the
chemicals used for cleaning oil spills. Based on the possible extent of
surface oiling (includ ing major fish spawning and nursery areas), the
intensity of the impact on most commercial fisheries would be high. As
an indicator, assuming a 10% drop in value of fisheries, sustained over a
full three years, the revenue lost would be about R600m a year . The
percentage drop is however difficult to estimate.
Reduction in income for secondary and tertiary sectors that support
tourism, recreational, fishing and other coastal economies.
Reduction in income and livelihoods impacts on those dependent on
small scale fisheries.”

[86] The applicants state that the above is an inadequate assessment of the socio-
economic consequences of an oil spill as it fails to -

(a) assess the impact on local communities or small-scale fisheries despite
the fact that they play a crucial role in sustaining communities and that
any disruption of these fisheries could have devastating consequences
for fishers and dependent communities; and

(b) quantify the consequences of the potential impacts. Rather, it simply
postulates an assumed figure of a drop of 10% in the value of fisheries
for three years. This is deficient in two respects , say the applicants.
First, no basis is provided for this figure. Second, there is no
assessment of the consequences which such a reduction would have
on small scale fishers, fishing operators or local communities.

[87] Total and the Minister deny the applicants’ charge in this regard, pointing out
that the applicants have provided an incomplete and inaccurate summary of the
Final EIR and SEI Report . T hey point, in addition to the Fisheries Impact
Assessment Report (“the FIA Report”), which the applicants have omitted to mention
in this regard . It is common ground , however, that the Final EIR accepted that,
although the risk of a blowout was small, the devasting nature of its impact required

although the risk of a blowout was small, the devasting nature of its impact required
it to be assessed.

[88] The FIA Report sets out the impact that normal operations would have on the
fishing industry including those persons who rely on the industry for their livelihoods.
It specifically identified the impacts that would follow on fisheries during normal
operations, and concludes that potential impacts arising from normal operations
have limited impact on commercial fisheries, and no impact and small -scale fishers.
It records that the impacts can be suitably mitigated by ensuring good
communication and coordination with a ffected sectors allowing them to temporarily
focus fishing effort in other areas.

[89] The FIA Report explains that there are limitations involved in the assessment
of the impact of a blowout an d oil spill on the fishing industry, and that any
assumptions would depend on at least seven unknown factors , depending on the
spread and concentration of the oil spill, namely: the oil type (hydrocarbon profile);
characteristics of the reservoir; type of well blow-out; well architecture; spill duration;
seasonality; and the w ell location. Nevertheless, in respect of each factor, the
assessment is modelled on the worst-case scenario.

[90] The FIA Report also addresses the impacts of an oil spill on the marine
environment, as well as the probability of contamination in different scenarios,
adopting a worst -case scenario. The methods of modelling the oil spill studies are
also set out.

[91] As for the quantification of drop in value, Total’s answering affidavit has set
out the various references made in the SEI report to the impact on fisheries, beyond
the references mentioned by the applicants. In this regard, the SEI Report refers to a
reduction in both recreational, small scale and commercial fishing in the region
including all forms of near shore and offshore fishing, noting that this may also result
in the undermining of fishing by the public at large and commercially. It states that all

in the undermining of fishing by the public at large and commercially. It states that all
coastal communities and activities along the South-West coastline, which is the key
area to be affected, are considered to be of very high sensitivity to major oil spills ,
and that the worst-case scenario of a large oil spill would likely be focused along t he
coastline between southern Namibia and Gqeberha, depending on the location of the
well.

[92] The SEI further refers to a ‘reduction in income for secondary and tertiary
sectors that support tourism, recreational, fishing and other coastal economies’. It
then states: “As an indicator, assuming a 10% drop in value of fisheries, sustained
over a full three years, the revenue lost would be about R600m a year. The
percentage drop is however difficult to estimate”. Since the applicants criticize this
statement, o ne of the socio -economic specialists who originally compiled the SEI
report for the Final EIR, Professor Tony Leiman, explains that there is no assumption
that there will be a 10% drop in the val ue of fisheries for three years. Rather, it is an
indicator intended to provide an idea of the relative magnitudes involved if there were
a sustained drop in the output of the nation's fisheries. Professor Leiman indicates
that the impact would be far lower , since the only major fisheries likely to experience
serious impacts are the ones currently producing relatively little output most
noticeably West Coast Rock Lobster and small pelagic fishery on the West Coast.

[93] It is in this relation to this issue that t he Final EIR explain s it would be
challenging and of little assistance to conduct an assessment, due to many
variables, assumptions and uncertainties involved, and that the outputs of an
assessment were likely to be so broad as to be of little direct value in informing the
impact assessment process or the development of mitigation measures and
ultimately decision-making.

[94] In that regard, the SEI Report set out mitigating measures, including avoiding
drilling in July and August as far as possible , to avoid the effects of the worst -case
scenario presented by the winter months when the wind is more likely to be from the
West and the South -West, which could blow a spill onshore against the prevailing
currents. It states that in the event of an unplann ed event such as a well blowout a

currents. It states that in the event of an unplann ed event such as a well blowout a
process of determining the economic effects and related compensation would be
initiated which would typically involve government, insurers, the organization
responsible for the incident, industry organizations and applicab le legal systems. It
further states that Total would plan for and implement responses in terms of the

IPIECA19-IOGP20guideline document (which provides a framework for effective oil
spill preparedness, response and restoration) for the economic assessment and
compensation for marine oil releases; and would ensure that damages and
compensation to third parties were included in insurance cover to financially manage
the consequences of any unplanned event.

[95] Furthermore, t he SEI Report outlines that small scale fis hers between
Saldana Bay and Cape Agulhas operate via 68 community cooperatives with 2031
fishers as members, and which have been registered for small scale fishing rights.
This is the maximum number of small -scale fis hers expected to be af fected by a
large-scale blowout. The actual effect, they state, would depend on variables such
as the time of the year and duration.

[96] The FIA Report evaluated the impact on commercial and small -scale fisheries
during the mobilisation, operational, and demobilisation phases of the proposed 3 to
4-month drilling project. It also evaluated the safety of the fishing sector during the
drilling operation and recommended that Total should adopt certain specified
measures. Similarly, after evaluating the safety of the fishing sector in relation to
abandoned wells, it concluded that the likelihood of imposing danger or risk to the
safety of the fishing sector is low , and made specific recommendations in that
regard. It also made specific recommendations regarding any blowout and oil spill
impacts on the fishing sector caused during the drilling operations, although it
indicated an insignificant likelihood of such an occurrence.

[97] The record reveals that the assessment process leading to the granting of the
EA involved consultation by Total with both the commercial and small -scale fishing
sectors, represented by FishSA, SA Tuna Association; SA Tuna Longline
Association, Fresh Tuna Exporters Association, South African Deepsea Trawling
Industry Association (“SADSTIA”) and South African Hake Longline Association

Industry Association (“SADSTIA”) and South African Hake Longline Association
(“SAHLLA”) and they were informed that: the fishing zones lie beyond the drilling

19 International Petroleum Industry Environmental Conservation Association, though the name was
changed in 2002 to the global oil and gas industry association for environmental and social issues.
20 International Association of Oil and Gas Producers.

area; the aquaculture industry will not be affected and Total would offer insurance
coverage to compensate the fishing sector in the event of a blowout and oil spill.

[98] The above summary i ndicates that Total undertook some assessment of the
socio-economic impacts of an oil spill on fisheries and communities, and in this
regard the summary provided by the applicants of the contents of the impact
assessments, which they state is insufficient and cursory , is incomplete . The final
EIR set out the method for assessing impact significance, the assessment of
potential impacts and risks, where the nature, significance, conse quence, extent,
duration and probability were considered and presented for each potential impact.

[99] The assessments concluded that potential impacts arising from normal
operations have limited impact on commercial fisheries, and no impact on small
scale fisheries. They further expected that impacts can be suitably mitigated. And
although there were noted limitations involved in an impact assessment in this
regard, which was summarized earlier into seven factors , it is not disputed that Final
EIR selected the worst-case scenario in respect of each factor for its modelling, and
provided the mitigation measures in relation to each of those.

[100] It is regarding the economic assessment of unplanned events that Total refers
to limitations in quantifying the consequences of the potential impacts and the
consequences of a drop in value on fishing operators or local communities . It is here
that that it estimates a drop of 10% in the value of fisheries for three years, which the
applicants complain lacks a basis. I have noted Total’s explanation that there is no
assumption that there will be a 10% drop in the value of fisheries for three years , but
that it is r ather an indicator intended to provide an idea of the relative magnitudes
involved, and that in fact the impact would be far lower, since the only major fisheries

involved, and that in fact the impact would be far lower, since the only major fisheries
likely to experience serious impacts are the ones that are currently producing
relatively little output, most noticeably fisheries targeting West Coast Rock Lobster
and the small pelagic fishery on the West Coast.

[101] Although t he 10% estimate is not refuted by expert evidence from the
applicants, it is clear that the Final EIR d id not fully assess the economic impact of
the unplanned events of a well blowout and an oil spill, due to the stated variables. In

light of the admitted devasting nature of the impact of a blowout and an oil spill, even
though of low risk, it was incumbent upon Total to assess it. Appendix 3 to the EIA
Regulations21 requires an environmental impact assessment to include assessment
of “ each identified potentially significant impact and risk ” including the cumulative
impact; the nature, significance, and consequence of the impact and risk; the extent
and duration of the risk; the probability of the impact and risk occurring.

[102] In this regard, Total contends that an oil spill is a “ risk” 22 rather than a
probability or “anticipated project impact which is more typically assessed in [a Final
EIR]” , this distinction is facile and is not supported by the legislation. The
Regulations clearly apply to both risks and impacts.

[103] The spirit of the statutory requirements is transparency and accountability,
and is designed to enable the decision -maker to make a decision after having taken
into account all relevant factors. It is not for the entity applying, such as Total, to
decide for itself, and weigh for itself, the degree to which those factors must be
declared or are relevant.

[104] The distinction sought to be created by Total between a risk 23 and an impact
or probability, one of which places are lower obligation to account or assess in this
regard, is against the spirit and purport of these Regulations. Both are required to be
assessed in terms of the legislation, in equal measure. There is no lower standard of
assessment created for either an impact or a risk. Once the Final EIR identified the
potential blow out and oil spill as potentially significant impact or risk, it was obliged
to assess the consequences and the probability of the impact or risk, including those
with a low degree of probability of a blow out or oil spill.


21 EIA Regulations Appendix 3 Item 3(1)(j).
22 Total seeks to distinguish between a ‘risk’, which is described as “an unplanned event not being a

normal part of project operations”, and an ‘impact’, which is described as “a consequence of a
predictable impact from the proposed activity”. On this basis, it is stated that an oil spill is a risk
rather than an impact of the proposed activity in the normal course.
23 Total seeks to distinguish between a ‘risk’, which is described as “an unplanned event not being a
normal part of project operations”, and an ‘impact’, which is described as “a consequence of a
predictable impact from the proposed activity”. On this basis, it is stated that an oil spill is a risk
rather than an impact of the proposed activity in the normal course.

[105] To the extent that there were or are limitations in conducting such
assessments, Total was compelled to adopt a cautious approach and take protective
and preventive measures before the anticipated harm of a blowout and oil spill
materialise.24 That is in light of the risk-averse and cautious approach espoused by
NEMA25 and the MPRDA 26, in terms of which the limitation on present knowledge
about the consequences of an environmental decision must be taken into account. 27
The precautionary approach entails that where there is a threat of serious or
irreversible damage to a resource, the lack of full scientific certainty should not be
used as a reason for postponing measures to prevent environmental degradation. 28
It means that, where there exists evidence of possible environmental harm, such as
a possible blow-out or oil spill as the Final EIR accepts, a cautious approach should
be adopted, and if necessary decision -makers may compel the party to take
protective and preventive measures before the anticipated harm materialises.29

[106] Since Total’s case is effectively that , due to unavailable scientific knowledge
there is uncertainty as to the future impact of the proposed development, I am of the
view that this was an occasion for application of this principle in its assessment.

[107] As a result, insofar as the Final EIR failed to quantify the economic impact of
unplanned event of a blowout and oil spill, it fell foul of the assessment requirements
of NEMA and the EIA Regulations.


24 Fuel Retailers Association of Southern Africa v Director -General: Environmental Management,
Department of Agriculture, Conservation and Enviro nment, Mpumalanga Province and Others
(CCT67/06) [2007] ZACC 13; 2007 (10) BCLR 1059 (CC); 2007 (6) SA 4 (CC) (7 June 2007) para s
[81] and [98].
25 In terms of s 4 (a)(vii) of NEMA, sustainable development requires the ‘application of a risk averse

and c autious approach’ ‘which takes into account the limits of current knowledge about the
consequences of decisions and actions’.
26 See WWF South Africa v Minister of Agriculture, Forestry and Fisheries and Others [2018] 4 All SA
889 (WCC); 2019 (2) SA 403 (WCC) paras 101-104.
27 Fuel Retailers Association of Southern Africa v Director -General: Environmental Management,
Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others
(CCT67/06) [2007] ZACC 13; 2007 (10) BCLR 1059 (CC); 2007 (6) SA 4 (CC) (7 June 2007) para
[81].
28 See WWF South Africa paras 100 - 101; Jan Glazewski Environmental Law in South Africa 19-20;
Space Securitisation (Pty) Ltd v Trans Caledon Tunnel Authority & others [2013] 4 All SA
624 (GSJ) paras 45-48.
29 See also African Centre for Biodiversity NPC v Minister of Agriculture, Forestry and Fisheries and
Others (934/2023) [2024] ZASCA 143; 2025 (2) SA 31 (SCA) (22 October 2024) para 11 .

[108] In the circumstances, insofar as the Final EIR failed to quantify the economic
impact of unplann ed events, it contravened sections 24(4) and 24 O of NEMA, and
Appendix 3 of the EIA Regulations. As a result, the decisions of the DG and the
Minister to grant the authorisation failed to take into account relevant considerations ,
they fall to be reviewed and set aside in terms of sections 6(2)(b), 6(2)(e)(iii) and
6(2)(f)(ii)(cc) of PAJA.

E. SECOND GROUND OF REVIEW: ICMA CONSIDERATIONS

[109] The second review ground is that the Final EIR and the decision -makers
failed to take into account the considerations prescribed by t he National
Environmental Management: Integrated Coastal Management Act 24 of 2008
(“ICMA”), specifically:

(a) Whether coastal public property will be affected by the activity and, if
so, the extent to which the proposed development or activity is
consistent with the purpose of establishing and protecting these areas,
in terms of s 63(1)(c).

(b) If the activity affects coastal public property, whether it is inconsistent
with the objective of conserving and enhancing coastal public property
for the benefit of current and future generations, as contemplated in s
63(1)(h)(i).

(c) Whether the activity would be contrary to ‘the interests of the whole
community’, in terms of s 63(1)(h)(vi1).

(d) The objects of ICMA, as set out in s 63(1)(k).

[110] In relation to coastal management, ICMA is to be read, interpreted and
applied in conjunction with the NEMA 30, and must be regarded as a “specific
environmental management Act” as defined in section 1 of the NEMA31.

30 See s 5(1) of ICMA.

[111] Section 2 of ICMA provides that it was enacted to: (a) provide for the co -
ordinated and integrated management of South Africa’s coastal zone ; (b) preserve,
protect, extend and enhance the status of coastal public property as being held in
trust by the State on behalf of all South Africans including future generations ; (c)
secure equitable access to the opportunities and benefits of coastal public property ;
(d) provide for the establishment, use and management of the coastal pr otection
zone; (e) to give effect to the Republic’s obligations in terms international law
regarding coastal management and the marine environment.

[112] Section 7(1)(a) provides that coastal public property includes South Africa’s
coastal waters, which is defined as including South Africa’s territorial waters and
South Africa’s exclusive economic zone. 32The proposed project is to take place
within South Africa’s exclusive economic zone, and therefore falls within coastal
public property and is subject to ICMA.

[113] ICMA obliges the State to: (a) ensure that coastal public property is used,
managed, protected, conserved and enhanced in the interest of the whole
community;33 take reasonable legislative and other measures necessary to protect
coastal public proper ty for the benefit of present and future generations; 34 control
and manage activities in coastal waters in the interests of the whole community and
in accordance with South Africa’s obligations under international law.35

[114] Consideration of the “interests of the whole community” is a concept unique to
ICMA.36It refers to the collective interests of the community as determined by: (a)
prioritising the collective interests in coastal public property of all persons living in
South Africa of the interests of any particular group; (b) adopting a long -term
perspective the takes into account the interests of future generations in inheriting

perspective the takes into account the interests of future generations in inheriting

31 Section 1 of NEMA 1 previously defined a “specific environmental management Act” , but it has
since been deleted.
32 Section 1 of ICMA defines “coastal waters” to include “the internal waters, territorial waters,
exclusive economic zone”.
33 ICMA section 12.
34 ICMA section 12.
35 ICMA section 21.
36 ICMA section 1 “interests of the whole community”.

coastal public property characterised by healthy and productive ecosystems and
economic activities that are ecologically and socially sustainable; and (c) taking into
account the interests of other living organisms that are dependent on the coastal
environment.

[115] Section 63 of ICMA prescribes the factors that must be taken into account
when a competent authority considers granting an environmental au thorisation for
coastal activities. They include:

(a) whether coastal public property will be affected and, if so, the extent to
which the proposed development is consistent with the purpose of
protecting that property;37

(b) if an activity affects coastal publi c property then whether it is
inconsistent with the objective of conserving coastal public property for
the benefit of current and future generations;38

(c) whether the activity would be contrary to the interests of the whole
community;39 and

(d) the objects of ICMA.40

[116] In Wild Coast the Makhanda High Court held that a failure to consider ICMA
renders the decisions at issue reviewable.41

[117] Turning to the DG’s decision in this case , while it list ed the information
considered, it ma de no specific mention of ICMA. The applicants add that none of
the key findings made in the DG’s decision relate to ICMA or the ICMA factors.


37 ICAM section 63(1)(c).
38 ICMA section 63(1)(h)(i).
39 ICMA section 63(1)(h)(vii).
40 ICMA section 63(1)(k).
41 Sustaining the Wild Coast NPC v Minister of Mineral Resources 2022 (6) SA 589 (ECMk), para.
130. This finding was not disturbed on appeal, see Minister of Mineral Resources and Energy v
Sustaining the Wild Coast NPC 2024 (5) SA 38 (SCA), para 25.

[118] In response to this criticism, Total has tabulated a list of various references to
the Final EIR which it contends amount to a consideration of the ICMA factors,
though under a different rubric. In essence, t he references mention effects that the
proposed project will have on various components of the marine environment. Total
concludes that, as a result, the DG “would have” considered ICMA factors. It does
not deny the fact that no reference was specifically made to ICMA or its provisions.

[119] Whether or not ICMA factors were considered is a matter of fact. In this
instance the references relied upon in the tabulated list contained in the answering
affidavit are contained in the Final EIR, not in the DG's decision. I have also noted
that Total goes no higher than to assume that the DG “would have” considered ICMA
factors, and this because they are contained in the Final EIR.

[120] In any event, none of the documents cross-referenced by Total make any
attempt to explain findings or indeed assessments relating to: whether coastal public
property would be affected by the proposed project; whether the proposed project is
inconsistent with the objective of conserving and enhancing coastal public property
for the benefit of current and future generations; or whether the proposed project
would be contrary to the interests of the whole community . All of these are the
concern of ICMA factors.

[121] Even based on a generous reading of the record, I am unable to conclude that
the Final EIR, and by extension, the DG, considered ICMA factors. To reach a
conclusion that ICMA factors were considered incident ally, t here must be some
reasoning which relates to ICMA factors, and I have found none.

[122] As the applicants point out, ICMA introduces concepts which are not present
in NEMA or other aspects of environmental law, by conferring a special legal status
on coastal public property, which afforded the environment a particularly high level of

on coastal public property, which afforded the environment a particularly high level of
protection.42 It expressly provides that the State holds the coastal public property in
trust for current and future generations. It creates the concept of the interests of the

42 Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy 2022 (6) SA 589
(ECMk), paras 128 to 132. This finding was not disturbed on appeal ( See Minister of Mineral
Resources and Energy v Sustaining the Wild Coast NPC 2024 (5) SA 38 (SCA), para 35).

whole community, which specifically recognises the need to take into account the
interests of other living organisms which are dependent on the coastal environment.
As such, ICMA’s requirements cannot be satisfied by generic consideration of
NEMA.

[123] The DG therefore failed to consider the ICMA factors, and his decision stands
to be reviewed and set aside in terms of sections 6(2)(b), 6(2)(e)(iii) and 6(2)(f)(ii)(cc)
of PAJA.

[124] The Minister’s decision responded to the appeal ground raised regarding the
failure to consider ICMA as follows:

“Having considered the grounds of appeal and the responses thereto,
I determine that the grant of the EA read together with the general
and specific conditions and the identification of the potential impacts
and mitigation measure of the project, the authorisation was rational
and reasonable and that the provisions of the ICMA and section 63
were considered. In any event, I have considered in the appeal and I
am of the view that the authorisation is rational and reasonable.”

[125] In light of the criticism levelled against the DG’s decision, I am in agreement
with the applicants that the Minister’s decision is woefully deficient. First, it does not
identify any portions of the DG’s decision which considered the ICMA factors. It
could not do so because the DG’s decision failed to consider the ICMA factors at all.
Secondly, although the Minister purports to have considered the ICMA factors, she
fails to set out any findings in respect thereof the ICMA factors.

[126] The first respondent’s response on this issue is that the areas of interest or
drilling do not overlap with any marine protected area; that the Final EIR reviewed
the critical biodiversity areas and ecologically or biologically significant marine areas;
and that the EA conditions mandate Total to conduct a pre -drilling survey to gather
information on seabed habitats and if sensitive habitats are detected this will be

information on seabed habitats and if sensitive habitats are detected this will be
addressed. However, none of these contentions amount to an allegation that the DG

or the Minister considered the ICMA factors. Nor do they bear any relation to the
ICMA factors.

[127] Accordingly, the Minister’s decision also clearly fail ed to consider the ICMA
factors. Therefore, the Minister’s decision also stands to be reviewed and set aside
in terms of sections 6(2)(b), 6(2)(e)(iii) and 6(2)(f)(ii)(cc) of PAJA.

[128] The Minister’s decision is unsatisfactory in another respect, namely that it
does not go beyond proving mere conclusions, and fails to give specificity as to what
exactly was taken into account as regards the requirements of ICMA. 43 In Phambili
Fisheries44 and Sprigg Investment,45 the SCA stated that:

[…] the decision-maker [must] explain his decision in a way which will enable
a person aggrieved to say, in effect: Even though I may not agree with it, I
now understand why the decision went against me. I am now in a position to
decide whether that decision has involved an unwarranted finding of fact, or
an error of law, which is worth challenging.
This requires that the decision -maker should set out his understanding of the
relevant law, any findings of fact, on which conclusions depend (especially if
those facts have been in dispute), and the reasoning processes which led him
to those conclusions. He should do so in clear and unambiguous language,
not in vague generalities or the formal language of legislation. The appropriate
length of the statement covering such matter will depend upon considerations
such the nature and importance of the decision, its complexity and the time
available to formulate the statement. Often these facts may suggest a brief
statement of one or two pages only.


43 See Gavric v Refugee Status Determination Officer 2019 (1) SA 21 (CC) para 69.
44 Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd 2003 (6) SA 407
(SCA) para 40.
45 Commissioner, South African Revenue Service v Sprigg Investment 117 CC 2011 (4) SA 551
(SCA) para 12.

[129] As a result , the Minister’s decision does not provide adequate reasons and
the Minister’s Decision’s stands to be reviewed and set aside in terms of sections
6(2)(e)(iv)46 and 6(2)(f)(ii)(aa) to (cc) 47 of PAJA.

F. THIRD GROUND: FAILURE TO CONSIDER CLIMATE CHANGE

[130] The third ground of review is that the Final EIR’s assessment of need and
desirability failed to take into account the climate change impacts which will be
caused by burning fossil fuels discovered by the proposed project , notably
greenhouse gas emissions (GHG) and fugitive emissions.

[131] The applicants state that, whilst the Final EIR acknowledges that the n eed for
the project stems from the objective of locating gas to be burnt to create electricity, it
fails to consider the climate change impacts that combustion will cause. In other
words, whilst the assessment of need and desirability relies on the positiv e impact of
burning gas, it excludes the negative impacts which that would cause.

[132] Further, that the need and desirability inquiry undertaken by both the
environmental assessment practitioners and the decision -makers treated the
exploration activities as an end in and of themselves and an activity directed at the
generation of information on possible indigenous resources. Adverse consequences
related to the production stage were postponed to a future environmental impact
assessment process.

[133] The result was that the decision -makers determined that the exploration
activities authorised were ‘needed and desirable ’ by reference to the benefits that
would be realised at production phase , namely catering to the need for gas to
generate electricity in So uth Africa. The applicants state that this was an incomplete
and asymmetric assessment of need and desirability, which resulted in approval of

46 Minister of Justice v SA Restructuring and Insolvency Practitioners Association 2018 (5) SA 349
(CC) para. 55; Bapedi Marota Mamone v Commission on Traditional Leadership Disputed and

(CC) para. 55; Bapedi Marota Mamone v Commission on Traditional Leadership Disputed and
Claim 2015 BCLR 268 (CC) para 62.
47 Bapedi Marota Mamone v Commission on Traditional Leadership Disputed and Claim 2015 BCLR
268 (CC) para 62.

the exploration activities - with all of the attendant environmental risks and impacts -
without giving any consideration certain highly material considerations.

[134] Amongst those material consideration s is an assertion by the applicants that
any gas field developed on the project area would produce gas far in excess of what
is needed to satisfy the gas requirements of South Africa's Integrated Resource Plan
2019 (“the IRP 2019”). The applicants rely in this regard on calculations projected by
an engineer and energy systems expert, Mr. Hilton Trollip , whose opinion is that a
gas field on the project area would need to be capable of producing 50 to 100
petajoules of gas per annum in order to be commercially feasible, whilst the new gas
utilisation envisaged by the IRP 2019 represents demand of approximately 6
petajoules per annum from 2024 and thereafter 19 petajoules per annum from 2027.
This means, according to Mr Trollip, the production phase would produce 5 to 10
times what is required for domestic electricity generation. The evidence of Mr Trollip
in this regard was produced in reply.

[135] The evidence of Mr Trollip is denied as speculation by Total. Total states that
it is not possible to accurately predict the volumes of gas that could in future be
extracted from a field on the project area, and any such exercise would be informed
by unknown variables relating to the scale of the development, the size of the
discovery, the type of resource, the costs of extracting and processing the gas.
There is also an application to strike out the evidence of Mr. Trollip as new matter
which is impermissibly introduced only in reply, and which is in any event irrelevant.

[136] Another material consideration which the applicants state was not considered
is that, once produced, the gas would inevitably be consumed in South Africa, and
generate greenhouse gases, which would have significant implications for

generate greenhouse gases, which would have significant implications for
compliance with the co untry’s emissions reduction targets and worsen the global
climate crisis with ramifications for environmental conditions in South Africa. In this
regard, the applicants have set out a number of domestic and international
commitments by the South African g overnment, in which it undertakes to contribute
towards the reduction of climate change, including fossil fuel emissions.

[137] Total states that the exploration operation itself would not result in the
production of oil and gas, but rather the generation of information on possible
indigenous resources, thus giving a better understanding of the extent, nature and
economic feasibility of extracting these potential resources, the viability of developing
indigenous gas resources would be better understood. Total adds that the
exploration has no direct influence on South Africa’s reliance on fossil fuels and
whether consumers use more or less oil or gas, nor on which types of fos sil fuels
contribute to the country's energy mix.

[138] The response of Total on this ground of review relies considerably on the
distinction between an exploration activity which is the activity for which the EA is
granted, and production stage, which would be the next stage if sufficient gas and oil
are discovered from the exploration activities. According to Total, the considerations
raised by the applicants would only become relevant if and when it applies for
environmental authorisation of the production phase , which might not eventuate,
depending on the exploration activity results.

[139] Turning to the regulatory scheme, Item 2(b) , Appendix 3 of the EIA
Regulations includes amongst the objective s of the environmental impact
assessment process: “to describe the need and desirability of the proposed activity,
including the need and desirability of the activity in the context of the development
footprint on the approved site as contemplated in the accepted scoping report”.

[140] Item 3(1)(f) obliges an environmental impact assessment to provide “a
motivation for the need and desirability for the proposed development including the
need and desirability of the activity in the context of the preferred location”.

[141] In terms of Item 3(1)(h)(v) an environmental impact assessment must contain
“the impacts and risks identified including the nature, significance, consequence,

“the impacts and risks identified including the nature, significance, consequence,
extent, duration and probability of the impacts, including the degree to w hich these
impacts(aa) can be reversed; (bb) may cause irreplaceable loss of resources;
and(cc) can be avoided, managed or mitigated.”48 In terms of Item 3(1)(j) it must also

48 This is similar to one of the objectives in Item 2(d).

contain an assessment of each identified potentially significant impact and risk,
including:

“(i) cumulative impacts;
(ii) the nature, significance and consequences of the impact and risk;
(iii) the extent and duration of the impact and risk;
(iv) the probability of the impact and risk occurring;
(v) the degree to which the impact and risk can be reversed;
(vi) the degree to which the impact and risk may cause irreplaceable loss of
resources; and
(vii) the degree to which the impact and risk can be mitigated.”

[142] The Regulations also require that an environmental impact assessment report
must contain all information that is necessary for the competent authority to consider
the application and to reach a decision including an assessment of each identified
potentially significant impact.

[143] It has been held that the consideration of need and desirability is a key factor
in a decision to grant an environmental authorisation. 49 In Fuel Retailers , the
Constitutional Court held that a decision to grant an environm ental authorisation
would be reviewable where the decision makers did not consider the need and
desirability of the proposed project. 50 According to Fuel Retailers , considerations
that ought to inform the inquiry into need and desirability include the following
features:

1) Environmental decisions which strike a balance environmental and socio-
economic developmental considerations through the concept of
sustainable development.51
2) The need for development must be determined by: its impact o n the
environment; sustainable development; and, social and economic
interests.

49 Pine Glow Investments (Pty) Ltd v Brick -On Brick Property Investments 23 (Pty) Ltd 2019 JDR
1681 (MN) para 49.
50 2007 (6) SA 4 (CC).
51 Fuel Retailers, para 61.

3) Environmental authorities must integrate these factors into their decision -
making.52
4) The objectives of integrated environmental management. 53 This includes
that the effects of activities on the environment must be considered
before actions are taken in connection with
them.54Unsustainable developments are inherently detrimental to the
environment especially if they entail potential threats to t he
environment.55

[144] Section 24O(1)(b) of NEMA requires the competent authority considering an
application for an environmental authorisation to take into account all relevant factors
including: i) any pollution, environmental impacts or environmental degradation likely
to be caused; ii) measures that may be taken to protect the environment from harm
as a result of the activity and to prevent, control, abate or mitigate any pollution,
substantially detrimental environmental impacts or environmental degradation; iii) the
ability of the app licant to implement mitigation measures and to comply with any
conditions subject to which the application may be granted; iv) any feasible and
reasonable alternatives to the activity and any feasible and reasonable modifications
or changes to the activity that may minimise harm to the environment; and v) any
guidelines, departmental policies and decision making instruments that have been
developed or any other information in the possession of the competent authority that
are relevant to the application. These requirements are peremptory.56

[145] In Earthlife57, the court interpreted s 24O(1) of NEMA , and specifically the
injunction to consider “any pollution, environmental impacts or environmental
degradation” to logically include climate change impact assessment to be conducted
and considered before the grant of an environmental authorisation. The court held
that the absence of a climate change impact assessment rendered both the

52 Fuel Retailers, para 79.
53 Fuel Retailers, paras 63 to 69.
54 NEMA, section 23(2)(c).

53 Fuel Retailers, paras 63 to 69.
54 NEMA, section 23(2)(c).
55 Fuel Retailers para 74.
56 Maccsand (Pty) Ltd v City of Cape Town and Others 2012 (4) SA 181 (CC) at para 12. See
Earthlife para 13.
57 Earthlife Africa Johannesburg v Minister of En vironmental Affairs and Others (65662/16) [2017]
ZAGPPHC 58; [2017] 2 All SA 519 (GP) (8 March 2017) see para [78].

impugned decisions irrational and unreasonable ,58and that granting an
environmental authorisation without having sight of a climate change impact
assessment report was a reviewable irregularity in terms of section 6(2)(e)(iii) of
PAJA.59

[146] Similarly, in Wild Coast the Makhanda High Court accepted that a need and
desirability asse ssment for a fossil exploration project ought to consider the
consequence of burning any fossil fuels discovered.60

[147] There is therefore no doubt that climate change impact assessment must form
part of the assessment to be conducted and considered before the grant of an
environmental authorisation.

[148] As regards the respondents’ distinction between exploration and production
phases, it is similar to an argument raised in Wild Coast61, which was rejected by
that court, on the authority of Earthlife.62 In Earthlife the court appears to have
endorsed the wide ambit of the climate change impact assessment invoked by the
applicant, which was described as follows: “A climate change impact assessment in
relation to the construction of a coal fire power station ordinarily would comprise an
assessment of (i) the extent to which a proposed coal -fired power station will
contribute to climate change over its lifetime, by quantifying its GHG emissions
during construction, operation and decommissioning; (ii) the resilience of the coal -
fired power station to climate change, taking into account how climate change will
impact on its operation, through factors such as rising temperatures, diminishing
water supply, and extreme weather patterns; and (iii) how these impacts may be
avoided, mitigated, or remedied.”63Thus, although the power station in that case was
intended to be in operation until 2061, the assessment was to include the phases
during construction, operation and decommissioning.


58 Ibid paras 78 and 83.
59 See para 87.
60 Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and

60 Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and
Others 2022 (6) SA 589 (ECMk), paras. 120 to 125.
61 See Wild Coast para 122.
62 Ibid paras 124 -125.
63 See para 6.

[149] The court in Earthlife as also stated as follows:

“The effects of climate change, in the form of rising temperatures,
greater water scarcity, and the increasing frequency of natural
disasters pose substantial risks. Sustainable development is at the
same time integrally linked with the principle of intergenerational justice
requiring the state to take reasonable measures protect the
environment "for the benefit of present and future generations" and
hence adequate consideration of climate change. Short -term needs
must be evaluated and weighed against long-term consequences.”64

[150] In Wild Coast the Makhanda Court also referred to Save the Vaal 65, stating
that the two processes of exploration and production 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”66.

[151] Whilst it is correct that the specific activity for which the EA in this case is
granted is exploration and not production, and that the former process will not always
result in the latter process, the two processes are inter twined. There would be no
point in conducting an exploration activity unless an entity hoped to proceed to the
next phase of production . And it is not speculation to conclude that b y the time such
an entity applies for authorization to conduct the next phase , it is armed with
information that places it at an advantage to proceed to the next phase. This is the
accumulative, phased process created by the legislation.

[152] That this is so is confirmed by the definition of an “exploration operation”
whose end-goal, according to the MPRDA, is to locate a discovery. It is defined as
“the re -processing of existing seismic data, acquisition and processing of new
seismic data or any other related activity to define a trap to be tested by drilling,

64 See para 82.

64 See para 82.
65 Director: Mineral Development, Gauteng Region and Another v Save the Vaal Environment and
Others
(133/98) [1999] ZASCA 9 (12 March 1999).
66 Wild Coast para 123.

logging and testing, including extended well testing, of a well with the intention of
locating a discovery”.67

[153] Further confirmation of the interrelatedness of the two activities is found in the
definition of a “production operation” 68, which includes an exploration. It is defined as
“any operation, activity or matter that relates to the exploration, appraisal,
development and production of petroleum”.

[154] That is the context in which the applicants’ argument is to be viewed, that it is
incongruous to rely on the long -term benefits of generating electricity and gas –
which is a result of production, whilst not considering the climate change effects of
production. Climate change is relevant to both exploration and production activities.
It makes no sense to rely on the positive consequences of production stage for
purposes of considering an application at exploration stage, only to resist
considering the negative consequences of the production stage when it comes to
consideration of climate change.

[155] The approach of the decision-makers itself indicates the intertwined nature of
the two processes. It proceeded from the assumption that any gas discovered will, in
due course, be combusted to produce energy. This indicates the sense in which it is
facile to distinguish the two processes when climate change impact assessment is
considered.

[156] The asymmetric assessment of need and desirability is accordingly
established by the applicants. In light of this finding, I do not consider it necessary to
resolve the dispute of fact emanating from Mr Trollip’s evidence. As I understand the
context of that dispute, it is to demonstrate what should have been taken into
account, had the needs and desirability assessment been conducted symmetrically.
It does not concern what was placed before the decision -makers. Any information
that still needs to be considered in this regard can therefore be p laced before the

that still needs to be considered in this regard can therefore be p laced before the
decision-makers for their consideration. I do not consider it appropriate for this Court
to make any determination based on it.

67 See section 1 of the MPRDA.
68 Ibid.

[157] The decisions of the DG and the Minister therefore stand to be reviewed and
set aside in terms of sections 6(2)(b), 6(2)(e)(iii) and 6(2)(f)(ii)(cc) of PAJA.

G. FOURTH GROUND: TRANSBOUNDARY IMPACTS

[158] The Final EIR records that an oil spill caused by a well blow-out may in certain
circumstances (depending on the metocean) lead to oil contaminating Namibian
waters, the Namibian shoreline, and international waters.

[159] The fourth ground of review is that the Final EIR failed to consider the
transboundary impacts of an oil spill caused by the proposed project. The
respondents contend that there was no obligation to consider transboundary
impacts. In the appeal decision, the Minister stated as follows:

“I have had regard to the SEIA (sic) and I am satisfied that the impacts
of the exploration of oil/gas have been fully identified, assessed and
mitigated. In this regard a precautionary approach has been adopted.

I have noted the indications in the ESIA report of the possibility of
potential im pacts on Namibian territorial waters in the event of an oil
spill, however I determine that there was no requirement for the
applicant to conduct a "detailed assessment" of any impacts on
Namibian waters, or its coast and coastal communities. I find that t his
does not render the process deficient.”

[160] Neither NEMA nor the EIA Regulations expressly address whether or not an
environmental impact assessment must assess the transboundary impacts of a
proposed project. The question arising is accordingly whether N EMA should be
interpreted as to require the assessment of transboundary impacts.

[161] In this regard, the applicants appeal to the objectives 69 of integrated
environmental management and the principles 70 set out in NEMA, which place
emphasis on anticipating, considering, and preventing (or minimising) harmful effects
on the environment. The only specific mention of international considerations is in s
2(4)(a)(n), which directs that “ global and internation al responsibilities to the
environment must be discharged in the national interest”.

[162] The applicants also state that NEMA’s definition of the “environment” does not
limit the environment protected by NEMA as the environment within the borders of
South Africa. The definition reads as follows:

“the surroundings within which humans exist and that are made
up of: (i)the land, water and atmosphere of the earth. (ii) micro-
organisms, plant and animal life. (iii) any part or combination of
(i) and (ii) and the interrelationships among and between them;
and (iv) the physical, chemical, aesthetic and cultural properties
and conditions of the foregoing that influence human health
and well-being.”

[163] The applicants therefore contend that read in context, the text of NEMA
supports an interpretation which requires the assessment of transboundary impacts.

[164] In addition, the applicants refer to sections 232 and 233 of the Constitution ,
stating that NEMA should be interpreted in the light of applicable customary and
international law. As regards customary international law, the y refer to the case of

69 Sections 23(2)(b) and 23(2)(e) define the object of integrated environmental management to
include the following: the identification, prediction, and evaluation of the actual and potential impact of
an activity on the environment, socio -economic conditions, and cultural heritage; and ensuring that
the effects of activities on the environment receive adequate consideration before actions are taken in
connection with them.

connection with them.
70 Section 2(1) of NEMA provides that the NEMA principles apply throughout the Republic to the
actions of all organs of state that may significantly affect the env ironment. In terms of s 2(4)(a)(ii)
pollution and degradation of the environment should be avoided or, where this cannot be avoided,
minimised and remedied. In terms of s 2(4)(a)(vii) the negative impacts on the environment (and on
people’s environmental r ights) should be anticipated and prevented or, where they cannot be
prevented, minimised and remedied.

Trail Smelter Arbitration, 71 a case involving a claim for damages for environmental
harm caused in the United States by a zinc and lead smelter in Canada. 72 It was
accepted in that case that international law provide s that no state could use, or
permit its territory to be used in a manner which causes injury in or to the territory of
another state. They also refer to Pulp Mills 73, where the International Court of
Justice (ICJ) accepted that international law requires an environmental impact
assessment to be conducted where an activity poses a risk of transboundary harm.

[165] The applicants also refer to numerous international instrumen ts, notably the
Rio Declaration on Environment and Development 74, and the Abidjan Convention for
Co-Operation in the Protection and Development of the Marine and Coastal
Environment of the West and Central Africa Region 75, to which South Africa is a
party.

[166] On the basis of the above international authorities t he applicants argue that
both customary international law and international law recognise that states have a
duty not to allow activities in their territory to cause transboundary harm, as well as a
duty to ensure that where activities in their territory may cause transboundary harm,
it is assessed as part of an environmental impact assessment.

[167] The Minister refers to Zuma III76 where the applicant in that case sought to
rely on the International Covenant on Civil and Political Rights (“ICCPR”), which is an
unincorporated treaty, and the Constitutional Court stated that “international treaties,
like the ICCPR, do not create rights and obligations automatically enforceable within
the domestic legal system of the member State that ratifies and signs them ”.77 The
Constitutional Court continued that an international treaty not incorporated into South
African law has no place being invoked in a national court, and litigants cannot

African law has no place being invoked in a national court, and litigants cannot

71 Trail Smelter Case (United States, Canada) Reports of International Arbitral Awards Vol. 3 (1905 –
1982) p. 1907.
72 Trail Smelter Case (United States, Canada) Reports of International Arbitral Awards Vol. 3 (1905 –
1982) p. 1907, at pp. 1938 and 1941.
73 Pulp Mills on the River Uruguay (Argentine v Uruguay) Judgment I.C.J. Reports 2010 p. 14, at para
204.
74 Rio Declaration on Environment and Development 12 August 1992, United Nations
A.CONF/151.26 (Vol. 1).

76 2021 (11) BCLR 1263 (CC) (“Zuma Ⅲ”).
77 Zuma III, para 108.

purport to rely on section 39(1)(b) of the Constitution as the basis upon which to
attempt to invoke its provisions.78

[168] The Minister also points out that there is no lacuna in NEMA, and that if there
were any, the Minister would have taken the steps set out in Chapter 6 of NEMA
where international obligations and agreements are dealt wit h; and recommended to
Cabinet and Parliament accession to and ratification of international environmental
instruments to which South Africa is not yet a party; and introduced legislation to give
effect to an international environmental instrument to which the Republic is a party.79

[169] The Minister also complains that t he applicants do not state which specific
provision of NEMA must be interpreted so as to include extra -territorial assessment
of impacts. He states that what the applicants seek to do is to import into NEMA a
substantive provision based on some international instrument which has not become
part of South African municipal law , which amounts to legislating as opposed to
interpretation.

[170] The Minister also seeks to distinguish the facts of this ca se from Trail Smelter
Association and Pulp Mills. He states that i n Trail Smelter, the question arising was
whether the company, Trail Smelter , should be required to refrain from causing
damage in the State of Washington in the future and if so, to what extent. The
tribunal in that case had to decide whether compensation should be paid. The
question of whether a determination of the impact of the air pollution had to be made
before commencing with smelter operations did not arise. Rather, the principle basis
on which the decision was made is that no state may use or permit the use of its
territory in such a manner as to cause injury by fumes in or to a territory of another or
the properties or persons therein, when the case is of serious con sequence and the
injury is established by clear and convincing evidence.

injury is established by clear and convincing evidence.

[171] As for Pulp Mills, the Minister seeks to distinguish it on the basis that it was
decided on the basis of a treaty agreed between Uruguay and Argentina in 1975
(“1975 Statute”), in respect of a dispute concerning a breach of obligations under the

78 See para 109.
79 See section 25(1) to (4) of NEMA.

treaty. The 1975 Statute provided for communication and co -ordination between the
two states with respect to use of River Uruguay, especially in regard to industrial
use. When two mills were erected by Uruguay , one of the questions was whether it
had complied with its obligations. Although Uruguay conducted an environmental
impact assessment , Argentina alleged it to be defective on the basis of non -
consultation. It was within th is context , says the Minister, that the ICJ made the
remarks relied upon by the applicants in this case , and the ICJ was i nterpreting
Article 41A of the 1975 Statute when it made reference to the practice emanating
from general international law of conducting an environmental impact assessment to
assess the transboundary risk and impact that a proposed industrial activity may
have.

[172] For its part, Total contends that the applicants are precluded from relying on
the fourth ground of review based on the principle of subsidiarity. To start with th is
argument, there is nothing in the applicants’ case which triggers the principle of
subsidiarity. The principle of constitutional subsidiarity provides that where legislation
has been enacted to give effect to a constitutional right, then a litigant must rely on
the legislation to enforce that right or challenge the constitutionality of the
legislation.80The applicants here do not rely directly on section 24 of the Constitution,
but seek an interpretation of NEMA which places an obligation to assess
transboundary impact s of projects located in South Africa. They seek to do this
through the interpretative tools of section 232 and 233 of the Constitution.

[173] Section 232 provides that “[c]ustomary international law is law in the Republic
unless it is inconsistent with the Constitution or an Act of Parliament ”. The provision
clearly imports customary international law into South Africa , without more, provided
it is consistent with the Constitution or an Act of Parliament.81

it is consistent with the Constitution or an Act of Parliament.81

[174] In Trail Smelter , the court expressly referred to what is “accepted in
international law” , and in Pulp Mills the court expressly referred to a “requirement

80 Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC), para. 73. See also Minister of Health and
Another NO v New Clicks South Africa (Pty) Ltd ) 2006 (2) SA 311 (CC), para. 437; My Vote
Counts NPC v Speaker of the National Assembly 2016 (1) SA 132 (CC) para 165.
81 WA Joubert, Law of South Africa (LAWSA), Annual Cumulative Supplement 2024, Lexis Nexis.at
451.

under general international law”. Although the Minister seeks to distinguish those
cases on the basis of facts, it is not disputed that the principles the cases relied upon
and applied were well-established rules of customary international law.82

[175] As the International Court of Justice (“ICJ”) stated in Pulp Mills:

[…] .. the obligation to protect and preserve, under article 41(a) of the
Statute, has to be interpreted in accordance with a practice, which in
recent years has gained so much acceptance among States that it may
now be considered a requirement under general int ernational law to
undertake an environment impact assessment where there is a risk that
the proposed industrial activity may have a significant adverse impact in
a transboundary context, in particular, on a shared resource. Moreover,
the duty of due diligence, and the duty of vigilance and prevention which
it implies, would not be considered to have been exercised, if a party
planning work liable to affect the regime of the river or the quality of its
waters did not undertake an environmental impact assessm ent on the
potential effects of such works. 83

[176] The ICJ court continued as follows in Pulp Mills:84

“The Court points out that that the principle of prevention, as a
customary rule, has its origins in the due diligence that is required of a
State in its territory. It is “every State’s obligation not to allow knowingly
its territory to be used for acts contrary to the rights of other States” [...].
A State is thus obliged to use all the means at its disposal in order to

82 See S v Ephraim and Others (SS70/2021) [2025] ZAGPJHC 410 (14 April 2025) para 30 , where it
was stated that “ Customary international law is a source of international law developed through
state custom or practice. In effect, it is the “common law” of the international legal system. A
custom becomes a rule of customary international law where it is a sufficiently widespread practice

adopted by states out of a sense of legal obligation. In the matter of Columbia v Peru , the
International Court of Justice (‘ICJ’), stated that for a pra ctice to become a rule of customary
international law, the practice must be 'constant and uniform'. ” (Colombian-Peruvian asylum case
I.C.J. Reports 1950, 266).
83 Pulp Mills on the River Uruguay (Argentine v Uruguay) Judgment I.C.J. Reports 2010 p. 14, at para
204.
84 Pulp Mills on the River Uruguay (Argentine v Uruguay) Judgment I.C.J. Reports 2010 p. 14, at para
101.

avoid activities which take place in its territory, or in any area under its
jurisdiction, causing damage to the environment of another State. This
Court has established that this obligation “is now part of the of the
corpus of international law relating to the environment”.

[177] The respondents have not pointed to any aspect of these customary
international principles which are inconsistent with the Constitution. Neither have
they pointed to any inconsistencies with the provisions of NEMA, which are already
outlined earlier, and in particular , the obligation to conduct an environmental impact
assessment aris ing from the concept of integrated environmental management
created in chapter 5 of NEMA.

[178] As for s 233 of the Constitution, it provides that “[w]hen interpreting any
legislation, every court must prefer any reasonable interpretation of the legislation
that is consistent with international law over any alternative interpretation that is
inconsistent with international law”. In Law Society85, the Constitutional Court stated
that the provision enjoins courts not only give a reasonable interpretation to
legislation but also that the interpretation accords with international law. As stated in
Zuma86, international law is an interpretive tool to assist its interpretation. Its express
wording clearly indicates that it is intended to be used to interpret South African
legislation.

[179] This does not mean, as suggested by the Minister, creating new legislation or
importing (a) new provision(s) into the already existing statutes. It is an interpretative
tool provided by the Constitution to interpretate legislation. It is relevant in this regard
that ICMA expressly requires the State to give effect to international law. One of the
objects of ICMA is to give effect to the Republic’s obligations in terms of international
law regarding coastal management and the marine environment. Sections 2(e ) and

law regarding coastal management and the marine environment. Sections 2(e ) and

85 Law Society of South Africa and Others v President of the Republic of South Africa and Others
2019 (3) Sa 30 (CC) Para 5.
86 Ibid paras 116 to 118. See also S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6)
BCLR 665 (CC) at para 35; and Glenister Glenister v President of the Republic of South
Africa [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC) (Glenister II) at paras 96, 98.

21 requires the State to control and manage activities within coastal waters in
accordance with the Republic’s obligations under international law.87

[180] Principle 2 of the Rio Declaration88 reads as follows:

States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their
own resources pursuant to their own environmental and development
policies, and the responsibility to ensure tha t activities within their
jurisdiction or control do not cause damage to the environment of other
states or to areas beyond the limits of national jurisdiction.

[181] As the Constitutional Court observed in Fuel Retailers89, the Rio Declaration
provides a benchmark for measuring future developments and a basis for defining
sustainable development. It is also not disputed here that the Rio Declaration is the
most generally accepted formulation of the main principles of international
environmental law.90 As a result , as the applicants point out, our courts 91have
frequently cited it, including the Constitutional Court in Fuel Retailers which
commended it as a reflection of a “real consensus in the international community on
some core principles of environmental protection and sustainable development”92.


87 Section 21 provides: “An organ of state that is legally responsible for controlling or managin g any
activity on or in coastal waters, must control and manage that activity—
(a) in the interests of the whole community; and
(b) in accordance with the Republic’s obligations under international law.”
88 The United Nations Conference on Environment and Development was held in Rio de Janeiro,
Brazil on 3 -14 June 1992, http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm.
This Conference adopted among other instruments, the Rio Declaration on Environment and
Development (the Rio Declaration).
89 See footnote 55.

Development (the Rio Declaration).
89 See footnote 55.
90 Dupuy & Vinuales International Environmental Law Second Edition Cambridge University Press, p.
15
91 See e.g. Fuel Retailers Association of Southern Africa v Director -General: Environmental
Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province
2007 (6) SA 4 (CC) para 4 9; African Centre for Biodiversity NPC v Minister of Agriculture, Forestry
and Fisheries 2024 JDR 4540 (SCA) para 11; Forestry South Africa v Minister of Human
Settlements, Water & Sanitation 2021 JDR 1905 (WCC) para 185.
92 Fuel Retailers Association of S outhern Africa v Director -General: Environmental Management,
Department of Agriculture, Conservation and Environment, Mpumalanga Province 2007 (6) SA 4
(CC) para 49.

[182] There are other principles of the Rio Declaration which are relevant to the
need to be cognisant of, and pro -active regarding, transboundary impact s. Some of
the goals of the Rio Declaration include the following:

“With the goal of establishing a new and equitable global partnership
through the creation of new levels of cooperation among States, key
sectors of societies and people,

Working towards international agreements which respect the interests
of all and protect the integrity of the global environmental and
developmental system,

Recognizing the integral and interdependent nature of the Earth, our
home…”

[183] Principle 6 provides as follows:

“International actions in the field of environment and development should
also address the interests and needs of all countries”.

[184] Principles 18 and 19 provide:

“States shall immediately notify other States of any natural disasters or
other emergencies that are likely to produce sudd en harmful effects on
the environment of those States. Every effort shall be made by the
international community to help States so afflicted.

States shall provide prior and timely notification and relevant
information to potentially affected States on act ivities that may have a
significant adverse transboundary environmental effect and shall
consult with those States at an early stage and in good faith.”

[185] If there is still any doubt regarding South Africa’s international obligations to
require assessment of transboundary impacts, there remains to consider the Abidjan

Convention for Co -Operation in the Protection and Development of the Marine and
Coastal Environment of the West and Central Africa Region 93, of which South Africa
is a party. Article 13(2) obliges South Africa to endeavour to include an assessment
of the potential environmental effects of an activity within South Africa on the
‘Convention Area’, which is defined to include the marine environ ment off the coast
of Namibia.

[186] There is accordingly an obligation arising from customary international law
and international law upon South Africa to not allow its territory to be used in a
manner which causes transboundary harm. The duty includes a requirement for an
environmental impact assessment to be conducted where an activity such as the
present exploration activity, which poses a risk of transbounda ry harm , is to be
conducted. At the very least, it has been established that there is a risk of oil spill
and a blowout occurring, and a risk of the oil reaching Namibian waters and the
Namibian shoreline.

[187] The approach adopted by the respondents, to the effect that NEMA and the
EIA Regulations do not to require environmental impact assessment to assess and
predict transboundary harm is inconsistent with the customary international law and
international law obligations discussed above . It is also contrary to the NEMA
principles and ICMA which recognise the need to discharge global and international
responsibilities.

[188] I am also in agreement with the applicants that, Namibia has no jurisdiction to
exercise control over the proposed project, and is not in a p osition to force Total to
assess the impacts that the proposed project would have on its territory. To hold
otherwise would create a dangerous, and easily exploitable, lacuna. Not only is this
common sense, but it echoes the sentiments expressed in the pri nciples of the Rio
Declaration, set out earlier.

[189] For all these reasons, I conclude that NEMA, read in light of sections 232 and

[189] For all these reasons, I conclude that NEMA, read in light of sections 232 and
233 of the Constitution, placed an obligation for the Final EIR to assess the

environment impact of the transboundary impact s it predicted may be caused by the
proposed project. And since the Final EIR failed to assess those transboundary
impacts, and the decisions of the DG and the Minister failed to take those impacts
into account, they stand to be reviewed and set aside in terms of sections 6(2)(b),
6(2)(d), 6(2)(e)(iii) and 6(2)(f)(ii)(cc) of PAJA.

H. FIFTH GROUND: BLOW-OUT AND OIL SPILL CONTINGENCY PLANS

[190] The fifth review ground is a challenge to the Environmental Management
Programme (EMPr) for the proposed project on the following bases: Firstly, that the
Blow-Out Contingency Plan (BOCP) and Oil Spill Contingency Plan (OSCP) were
not made available when the Final EIR was prepared and when the decisions under
review were taken. Secondly, the BOCP and the OSCP documents were required to
form part of the E MPr for the proposed project, because these are the documents
which will describe how Total intends to modify, remedy, control or stop an oil spill
resulting from a well blow -out. Thirdly, the process through which the Final EIR and
the EMPr were prepared and through which the EA was granted, was not
procedurally fair and did not comply with the public participation requirement s in
NEMA.

[191] Total’s main response to this ground is that it is impossible to prepare such
plans absent information which can only be ascertained after obtaining the EA. It
states that the Final EIR sufficiently detailed how it intends to modify, remedy, control
or stop an oil spill resulting from a well blow out. Finally, it points to the fact that EA
includes conditions requiring (a) the submission of the BOCP and OSCP within 60
days prior to the commencement of the proposed drilling operations 94; and (b) an
enhanced OSCP if operations are planned to cover the Austral winter95.


94 Condition 5.5.2 of the EA reads: The holder must, within 60 days prior to the commencement of the

proposed drilling operations, submit all specific management plans identified in the [Final EIR] i.e
Shipboard Oil Pollution Emergency Plan; Emergency Response Plan Blow Out Contingency Plan;
Oil Spill Contingency Plan; Stakeholder Engagement Plan; Waste, Emissions, Discharge
Management Plan; Hazardous Substance Management Plan; Preventative Maintenance Plan;
Ballast Water Management Plan; Biodiversity Management Plan And Corrective Action Plan.
95 Condition 5.5.4 states: if the operations are planned to cover the austral winter period, the oil spill
response plan must be enhanced to cover the risks associated with shoreline oiling from blow -out.

[192] In substantiation of why it would be impossible for the BOCP /OSCP, in a
complete form, to be included in the ESIA and/or EMP r, and why in the
circumstances, it is rational and reasonable that an BOCP/OSCP must be submitted
within 60 days prior to the commencement of the proposed drilling operations, Total
explains as follows:

1) BOCP's and OSCP’s are internal operating documents that set out the
way Total prepares for , and responds to , an oil pollution incident and are
specific for each project. While t he impact of an oil pollution incident is
assessed in the Final EIR together with overall measures that Total will
implement in response to an oil pollution incident , the BOCP&OSCP’s do
not assess the impacts of spills. They are operational plans that Total
follows to respond to incidents.

2) The OS CP and BOCP are unique and specific to each operation ,
contractor, drilling campaign and well site . As a result, the specific plans
cannot be developed in detail at this stage. The modelling inputs required
for a OSCP and BOCP are tailored operational plan s which include (a)
location, (b) type of resource, (b) season, (c) contractor, and (d) response
services, and therefore cannot be prepared during the ESIA phase as the
information required to determine the well locations and well designs is not
yet available.

[193] In further substantiation that a BOCP is intended to define a detailed response
plan specific to the rig, well location, type of product spilled , and probable blow out
rate, Total has explained the detailed the process of preparing a BOCP and OSCP ,
through its expert, Mr Groenewal d. He explains that t he two documents are inter -
related in that the OSCP takes into account the outcomes of the BOCP.

[194] Total also states that, from a practical perspective, if tailored BOCPs/OSCPs
were submitted and approved as part of the Final EIR/EMPr, they would be based on
an assumed well locations and designs. Once the pre -drilling activities (well studies,

an assumed well locations and designs. Once the pre -drilling activities (well studies,
design, contractual arrangements) were completed, the well locations identified and
the BOCPs/OSCPs approved by SAMSA, Total would need to a pply to amend its

EA/EMPr to cater for these revised BOCPs / OSCPs. This would be impractical and
overly burdensome.

[195] There is much more detail provided in Total’s answering affidavit regarding
the response strategy and associated plans to be included in the BOCP and OSCP.
They include consideration of the project specific conditions, well locations, metal
ocean conditions, equipment, resources, local oceanographic and meteorological
seasonal conditions, local environmental receptors and local spill respon se
resources. None of this evidence is disputed by the applicants.

[196] Total also relies on the level of detail contained in its generic oil spill
contingency plan which was submitted with the Final EIR, stating that it is sufficient
for that stage. The DG and the Minister agree and were satisfied. Its content covers
the generic response methodology and capability for the region (based on recent
wells drilled in neighbouring Block 11B/12B), and as a result, regional Metocean
conditions of the drilling campaign for Block 5/6/7.

[197] However, Total emphasises that the final specifics of the OSCP and detailed
response strategies can only be finalised closer to the time of drilling and will require
the approval of the relevant authorities closer to the time of dril ling. The sections that
will need to be updated in the final OSCP include logistics support, final well location,
the oil spill modelling results, and the outcomes of the BOCP. No comments were
received on the generic OSCP during the public participation process.

[198] Contrary to the applicants’ argument, I have not found that Total’s response is
vague in its explanation of the data inputs required for the BOCP and OSCP, and the
stage at which such information becomes available. In fact, the applicants do not
dispute Total’s evidence regarding the impossibility of making the BOCP and OSCP
available at the stage of applying for an EA. The applicants complain that there is a

available at the stage of applying for an EA. The applicants complain that there is a
lack of detail regarding the time and costs it would take to prepare an d then amend
the OSC P& BOCP. However, as the evidence shows, the issue is not merely about
costs but impossibility, which is not refuted.

[199] Nevertheless, given that there is yet to be more focused and detailed
information to be provided , in the form of the OSCP and BOCP, which will define
Total’s plans to manage and mitigate a well blowout and oil spill, in another round of
submissions, pursuant to the 60 -day conditions inserted in the EA, it is difficult to
conclude that there has been a full assessment and description of the manner in
which Total intends to modify, remedy, control or stop any action, activity or process
which causes pollution or environmental degradation, as contemplated in section
24N(2)(g) and Appendix 4 of the EIR Regulations96.

[200] Even more problematic is the lack of public participation in connection with the
process that is yet to ensue. It appears that the OSCP and the BOCP will not be part
of a public participation process. There is also no procedure s pecified regarding the
consideration of those documents by the DG and the Minister.

[201] It is o ne of the foundational principles of NEMA that the participation of all
interested and affected parties must be promoted, 97 and they must be provided
reasonable opportunity to influence the outcome of the decision at hand. 98 Section
24(4)(a)(v) of NEMA provides that interested and affected parties must be given a
reasonable opportunity to participate in the environmental impact assessment
process.

[202] The fact that there was public participation in respect of the generic plan is not
sufficient because, according to Total’s own evidence, the specific detailed and
relevant plans are the ones to be contained in the OSCP and BOCP , in respect of
which there will not be public participation.


96 Paragraph 1(1)(f) of Appendix 4, which sets out the required content of environmental
management programme (EMPr), provides that an EMPr “must comply with section 24N of [NEMA]
and include a description of proposed impact management actions, identifying the manner in which
the impact management outcomes

the impact management outcomes
… will be achieved, and must, where applicable, include actions to:
(i) avoid, modify, remedy, control or stop any action, activity or process which causes pollution or
environmental degradation;
(ii) comply with any prescribed environmental management standards or practices; and
(iii) comply with any applicable provisions of the Act regarding closure, in the case of a closure
activity.”
97 NEMA, section 2(4)(f). See also: Regulation 41(6) of the EIA Regulations.
98 Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC), para 171.

[203] As a result, the Final EIR and EMPr fell foul of section 24 N (2)(g) of NEMA
and Item 1 (1)(f) of Appendix 4 to the EIA Regulations, for failing to include a
description of the proposed impact management actions . And the decisions of the
DG and Minister were procedurally unfair and did not comply with sections
24(4)(a)(v) and 24N(2)(g) of NEMA and the relevant provisions of the EIA
Regulations. They therefore stand to be reviewed and set aside in terms of sections
6(2)(b), 6(2)(c), 6(2)(d), 6(2)(e)(iii) and 6(2)(f)(ii)(cc) of PAJA.

I. THE SIXTH GROUND: THE INVOLVEMENT OF PASA

[204] The applicants’ sixth ground of review is that the appeal response considered
by the Minister was prepared and signed by officials of PASA and that, in submitting
the appeal response, PASA purported to do so as the competent authority, the DG,
and the appeal response was treated as such by the Minister. They state that the
Minister’s reliance on PA SA’s responding statement as if it was that of the DG
means there was no proper compliance with Regulation 5, and that, to the extent
that the Minister took account of PASA’s responses in formulating his decision, she
took account of irrelevant considerations.

[205] In this regard , the applicants rely, in the first instance, on an e-mail dated 16
May 2023 addressed to PASA’s Sinazo Mnyaka, enclosing the appeal response of
Total. It informed the competent authority that it could apply for condonation for the
late filing of their responding statement, which at that stage had not been submitted
and was out of time. Secondly, they rely on a decision by the Director: Appeals and
Legal Review of the D epartment of Forestry, Fisheries an d the Environment
(“DFFE”) dated 15 September 2023 , in which the applicant for cond onation of the
late filing of PASA’s appeal response is referred to alternately as ‘PASA’ and ‘DMRE’
which indicates, according to the applicants, that the author regarded the two entities

which indicates, according to the applicants, that the author regarded the two entities
as interchangeable. Thirdly, the applicants state that the appeal response is drafted
in such a manner that the author considers him or herself to be responding in the
capacity of the authority responsible for the decision.

[206] The respondents deny these allegations. They state that the DG , in fact, did
not deliver an appeal response, which he was entitled not to do. And to the extent

that there were interchangeable cross -references in the correspondence to PASA
and the DMRE, those w ere clearly errors which are evident from the context of the
documents referred to by the applicants.

[207] The e-mail of 16 May 2023 was addressed by Ms Fiona Grimmett of Total to
PASA, and was copied to officials of the DMRE. Total has explained that the
reference to the ‘competent authority ’ instead of ‘PASA’, to whom the notification
was clearly addressed, was a clear mistake arising from a ‘copy and paste job’.

[208] Similarly, the reference to the ‘DMRE’ in the decision on condonation was
also a clear mistake according to Total, because , as appears from that decision, the
application for condonation was brought by the Chief Operating Officer of PASA,
who was entitled to bring the application , not DMRE . Neither of these explanations
are refuted by the applicants and, to the extent that there is any factual dispute, it
must be decided in Total's favour according to the Plascon Evans rule99.

[209] Moreover, i t is notable even from the supplementary affidavit w here this
ground of review is raised, that the ground is based on a supposition or inference,
that in submitting a n appeal response, PASA did so purporting to be the DG, which
as I have indicated is explained by Total. To the extent that the applicants con tinue
to allege that the Minister’s appeal decision reveals that there was purported input
from the DG whose source was, in fact, PASA, that is not supported by any
evidence. Rather, the established evidence is that PASA filed a response to the
applicants’ appeal, and the DG did not.

[210] The appeal to the Minister was governed by the National Appeal Regulations
published under NEMA (GNR.993 of 8 December 2014) (“the Appeal Regulations”).
Regulation 5 of the Appeal Regulations provides as follows:

“The applicant, the decision -maker, interested and affected parties and
organ of state must submit their responding statement, if any, to the

organ of state must submit their responding statement, if any, to the

99 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634 -635; see
also Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) paras 55-56.

appeal authority and the appellant within 20 days from the date of receipt
of the appeal submission.”

[211] It is clear from the use of ‘if any’ in R egulation 5, that the submission of an
appeal responding statement is not compulsory. The fact that the DG, as the
decision-maker, did not submit a responding statement is not a contravention of
Regulation 5. The applicants have not pointed to any contrary statutory indication.
And, since the DG had set out his reasons in his decision, it cannot be contended
that the Minister did not have insight into his reasons.

[212] The corollary is that PASA as an ‘organ of state’ cont emplated in Regulation
5, was entitled to submit an appeal response. The definition of an organ of state set
out in s ection 1 100 of NEMA, read with s 239 101of the Constitution, includes a
functionary or institution exercising a public power or performing a public function in
terms of any legislation.

[213] PASA is such an institution by virtue of its designation by the Minister in terms
of s 70 of the MPRDA102, to perform the functions set out in Chapter 6 of the MPRDA
and any other function determined by the Minister from time to time. Those functions
include its mandate in terms of s 71(a) of the MPRDA to promote offshore oil and
gas exploration and is the national custodian of petroleum data u nder the DMR.103 In
the furtherance of its duties in this case, it accepted and processed the EA
application, reviewed it and made recommendations to the DG in terms of s 71(i) of
the MPRDA 104, read with Regulation 6 (5) (b) of the 2014 EIA Regulations 105.


100 An ‘organ of state’ is defined in s 1 of NEMA to refer to ‘an organ of state as defined in the
Constitution.’.
101 Section 239 of the Constitution defines an ‘organ of state’ as [b(ii] ‘any other functionary or
institution exercising a public power or performing a public function in terms of any legislation.’

102 The first respondent designated PASA as such a functionary or institution occurred in G N R733 of
18 June 2004.
103 s 71 (a) states that: the designated agency must (a) promote onshore and offshore exploration for
and production of petroleum.
104 s 71 (i) states that the designated agency must (i) review and make recommendations to the
Minister with regard to the acceptance of environmental reports and the conditions of the
environmental authorisations and amendments thereto.
105 Regulation 6 (5) (b) of the 2014 EIA Regulations states that if the Minister responsible for mineral
resources is the competent authority in respect of an application, the application must be
submitted to the relevant office of the Department responsible for mineral resources as identified
by that Department.

[214] Finally, in terms of Regulation 4 (2) of the 2014 EIA Regulations, Total was
required to inform PASA, as an interested and affected party regarding the DG's
grant of the EA and the timeframe for appealing the decision to the Minister. 106It was
in the performance of its public functions in terms of the MPRDA, and Regulation 5
of the Appeal Regulations that PASA submitted the responding statement, which the
Minister considered before taking the appeal decision.

[215] As the Minister points out s 43 of NEMA, read with Regulation 5 of the 2014
National Appeal Regulations, neither restricts nor precludes PASA, the custodian of
petroleum data, from responding to the internal appeal filed against the DG's
decision to grant the EA for the offshore listed activities or clarifying its
recommendation to grant the EA.

[216] For all these reasons, the sixth ground of review is dismissed.

J. REMEDY

[217] I have found in favour of the applicants in respect of the first to fifth grounds of
review. Once a ground of review under PAJA has been established, s 172(1)(a) 107of
the Constitution requires the decision to be declared unlawful. 108 In the
circumstances, the decisions of the DG and the Minister are declared unlawful.


106 Regulation 4 (2) states that: The applicant must, in writing, within fourteen days of the date of the
decision on the application ensure that –
(a) all registered interested and affected parties are provided with access to the decision and the
reasons for such decision and
(b) the attention of all registered interested and affected parties is drawn to the fact that an appeal
may be lodged against the decision in terms of the National Appeals Regulations, if such
appeal is available in the circumstances of the decision.
107 Section 172 of the Constitution provides:
“When deciding a constitutional matter within its power, a court-
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to

the extent of its inconsistency; and
(b) may make any order that is just and equitable, including-
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions,
to allow the competent authority to correct the defect.”
108 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the
South African Social Security Agency and Others (CCT 48/13) [2013] ZACC 42; 2014 (1) SA 604
(CC); 2014 (1) BCLR 1 (CC) (29 November 2013) para 25.

[218] In considering a just and equitable remedy under s 172(1)(b) in terms of which
this Court has a wide discretion,109the Constitutional Court has emphasised the need
for courts to be pragmatic.110For example, that court has found that it is
disproportionate to set aside an entire project as a consequence of an imperfect
process.111 In addition, as emphasised by the SCA in Sustaining the Wild Coast112, a
just and equitable remedy must be proportionate, which means fair and just in the
context of the particular dispute, 113 flexible, and should place substance above
form.114

[219] In considering the appropriate remedy in this matter, I take into account the
fact that a substantial amount of time has elapsed since Total applied for the EA,
namely three years. This is a substantial delay when regard is had to the two-year
duration of an exploration right in terms of the MPRDA.

[220] It has also been brought to the Court's attention that, in terms of Government
Gazette No. 41743, dated 28 June 2018, a moratorium has been placed on the
granting of new exploration rights over the entire South African coast.

[221] There is also to consider that, similar to the facts in Sustaining the Wild Coast,
Total awaits the outcome of its application for a third renewal of its ER 224, and, as
discussed elsewhere, it only has one more opportunity to renew the exploration right
ER 224.

[222] In the fifth ground of review this Court has identified a failure to invite public
participation regarding the BOCP and the OSCP. As in Sustaining the Wild Coast ,
this Cout is empowered to direct that, as part of a proper consideration of the third

109 Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance
v Speaker of the National Assembly and Others [2016] ZACC 11 ; 2016 (5) BCLR 618 (CC); 2016
(3) SA 580 (CC) para 132.
110 Electoral Commission v Mhlope & others [2016] ZACC 15; 2016 (8) BCLR 987 (CC); 2016 (5) SA
1 (CC) para 132.

1 (CC) para 132.
111 Mazibuko and Others v City of Johannesburg and Others [2009] ZACC 28 ; 2010 (3) BCLR
239 (CC); 2010 (4) SA 1 (CC) para 134.
112 Minister of Mineral Resources and Energy and Others v Sustaining the Wild Coast NPC and
Others (58/2023; 71/2023; 351/2023) [2024] ZASCA 84; 2024 (5) SA 38 (SCA) (3 June 2024) para
[27].
113 Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and
Another [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC) para 96.
114 Ibid para 97.

renewal application, a further public participation process be conducted to cure the
identified defects in the process already undertaken. Similar to that matter, the
matters warranting consideration have been fully canvassed in these proceedings.

[223] I am accordingly of the view that the just and equitable remedy would be
remittal of the matter to the decision -maker for reconsideration based on the
successful grounds of review.

K. COSTS

[224] There is no reason why costs should not follow the result. Save in the case of
the joinder application and the sixth ground of the review, the applicants have been
successful.

[225] In respect of the joinder, the applicants invoke the Biowatch principle115 in
terms of which there is a general rule in constitutional litigation that an unsuccessful
litigant in proceedings against the State ought not to be ordered to pay costs. 116
There may be circumstances that justify departure from this rule such as where th e
litigation is frivolous or vexatious, or there is conduct on the part of the litigant that
deserves censure by the court which may influence the court to order an
unsuccessful litigant to pay costs.117

[226] The respondents argued that the Biowatch principle ought not to apply
because the main application and the opposition to the joinder application were
frivolous and unmeritorious, and, in any event, a joinder application is not strictly
speaking a constitutional matter.

[227] The latter argument is not supported by the prevailing case law. In Phillips118
the SCA held the Biowatch principle is indeed applicable not only to orders on the
merits in constitutional cases but also to what may be described as ancillary points.

115 Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14; 2009 (6)
SA 232 (CC) ; 2009 (10) BCLR 1014 (CC) (3 June 2009).
116 Biowatch para 23.
117 Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC) para 138.

118 Phillips v South African Reserve Bank and Others (221/2011) [2012] ZASCA 38; [2012] 2 All SA
518 (SCA); 2012 (7) BCLR 732 (SCA); 2013 (6) SA 450 (SCA) (29 March 2012) paras [57] – [59].

As the SCA stated in Phillips, “that that must be so follows, inter alia, from the fact
that a litigant wishing to vindicate a constitutional ri ght might well be discouraged
from going to court by the fear that some technical or procedural slip on the part of
his legal representatives might result in a costs order with financially ruinous
consequences for him or her”119.

[228] Although the opposition to the joinder application did not prevail, I did not find
it frivolous. It is furthermore not disputed that the applicants act not only in their own
interest but also in the public interest. I am accordingly of the view that the Biowatch
principle should apply in respect of the joinder application, and that the applicants
should not be ordered to pay costs in regard thereto.

[229] As regards the main application, a ll the parties employed more than one
counsel - three each in the case of the applicants and Total, and two in the case of
the Minister - an indication of the complexity and volume and importance of the
matter. I am accordingly of the view that the applicants are entitled to the costs of
three counsel.

L. ORDER

[230] In the circumstances, the following order is made:

1) Shell Exploration and Production South Africa BV is joined as the fifth
respondent to these proceedings. The re are no costs in relation to the
joinder application.

2) The applicants’ late service of the review application is condoned.

3) The decision taken by the third respondent on 17 April 2023 to grant an
environmental authorization to the fourth respondent (“Total”) to conduct
exploratory operations in Block 5/6/7 is reviewed and set aside.


119 See para [58].

4) The decision taken by the first respondent on 24 September 2023
dismissing the appeal of the first and second applicants is reviewed and
set aside.

5) The decision of granting an environmental authorization to Total is
remitted to the third respondent for reconsideration, which process must
provide for the following:

5.1 Total must be afforded opportunity to submit new or amended
assessments, as the case ma y be, to cure the deficiencies
identified in the first to fifth grounds of review of this judgment.

5.2 Public participation must be conducted in regard to the new and/or
amended assessments submitted by Total , before decision is
made by the third respondent.

6) The first to third respondents are to pay the costs of this application, jointly
and severally, the one paying the other to be absolved, on a scale C,
including the costs of three counsel.


______________________
MANGCU-LOCKWOOD
Judge of the High Court


APPEARANCES

Counsel for the first and second applicants: Adv M. Chaskalson SC
Adv I. Learmonth
Adv J. Blomkamp

Instructed by : Cullinan & Associates
L Seema

Counsel for the first, second and
third respondents : Adv G.L. Grobler SC
Adv L. Gumbi

Instructed by : State Attorney Cape Town
S. Mathebula

Counsel for the fourth respondent : Adv C. Loxton SC
Adv J.L. Gildenhuys SC
Adv T. Sarkas

Instructed by : Norton Rose Fulbright
A. Vos

Counsel for sixth respondent (joinder) : Adv C. Loxton SC
Adv J.L. Gildenhuys SC