Now Wild Coast tribesmen take Shell to court

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When at first you don’t succeed, try and try again; that’s the rallying cry of opponents to Shell’s seismic exploration off the Wild Coast – who this time in the form of traditional leaders – have launched a second court interdict. It’s a mixed bag of Wild Coast traditional leaders, landowners, fishermen and a climate change lawyer NGO. They go to the historical heart of exploitation of indigenous people in their court papers, ably collated by probably the most successful class action litigator in the country, Richard Spoor. He is almost universally feared by mining houses where he’s won billions for underground worker clients. This may be a different kettle of fish, even if it is the stunned kind whose inextricably linked environment is so threatened. Shortcuts may have been taken by Shell, which is probably the best weapon Spoor can use to fire a salvo across the bow of Shell’s blasting ships, hopefully for his litigants, sending them packing over the horizon. – Chris Bateman

By Martin Welz

Another urgent court application has been launched to stop Shell’s seismic survey of the ocean off the Wild Coast. 

Notice of the application was served on Shell on 2 December and the matter was set down for hearing in the Grahamstown High Court on 14 December.

There are seven applicants represented by the Legal Resources Centre and attorney Richard Spoor.

Just who the applicants are tells half the story.

The first is Sustaining the Wild Coast, a non-profit company represented by its director and programme manager, Reinford Sinegugu Zukulu, who lives at Baleni Village in the Amadiba Traditional Community in the Eastern Cape. He makes the founding affidavit setting out the applicant’s case. 

The second applicant is Mashona Wetu Dlamini, a resident of Sigidi village in the Umgungundlovu Community. He is a traditional healer and member of the council of the iNkosana (headwoman) of Umgungundlovu, Duduzile Baleni. He acts on his own behalf, on behalf of traditional healers along the Wild Coast, and on behalf of the Umgungundlovu community.

The third applicant is the Dwesa-Cwebe Property Association, a juristic entity that holds land “that was stolen from the Dwesa-Cwebe community under colonialism and apartheid and successfully restituted to the community under the Restitution of Land Rights Act in 1994.”  The association acts in the interest of its members.

The fourth is Ntinsidiso Nongcavu, a fisher from Port Saint Johns who acts on his own behalf, and on behalf of fellow Wild Coast fishers.

The fifth and sixth applicants, Sazise Maxwell Pekayo and Cameron Thorpe are both fishers from Kei Mouth who are part of a local Cooperative, Kei More Fisheries. They act on their own behalf and on behalf of fellow Wild Coast fishers.

The seventh applicant is All Rise Attorneys for Climate and Environmental Justice, a law clinic and non-profit company based at Dube Trade Port, La Mercy, KZN. It represents communities fighting against and affected by climate change.

All the applicants state they also act on behalf of the public interest and in the interest of protecting the environment.

The second half of the story is neatly summarised in the first seven paragraphs of the introduction to Zukulu’s founding affidavit:

“The Wild Coast is a place of stunning natural beauty. Unlike other coastal stretches in South Africa, indigenous people have maintained continuous possession of this land despite waves of colonial and apartheid aggression. This is no accident. Our ancestors’ blood was spilt protecting our land and sea. We now feel a sense of duty to protect our land and sea for future generations, as well as for the benefit of the planet.

“Our land and sea are central to our livelihoods and our way of life. Over generations we have conserved them, and they have conserved us. This is not merely a matter of nutrition and income, though it certainly is that. Some of our ancestors reside in the sea, and our traditional healers and pastors use the sea to heal us and to connect us with God.

“We believed that our Constitution would enshrine the rights that our ancestors died to secure so that we would not have to make such sacrifices.

“Section 24 of the Constitution’s guarantee of environmental protection for the sustainable benefit of current and future generations does exactly this.

Parliament passed the National Environmental Management Act to give this right meaning for South African communities.

“Multinational corporations now wish to blast our sea every 10 seconds for five months with air gun bursts between 220 and 250 decibels – louder than a jet plane taking off – that will be heard underwater more than 100 kilometres away. They want to do this for one reason: to look for oil and gas that they can profit from while worsening the planet’s climate crisis.

“After receiving an Exploration Right without any meaningful community engagement eight years ago, they are now rushing to blast our seas without any environmental authorisation under the National Environmental Management Act (NEMA), on a month’s notice. They do so without even an environmental impact assessment. They do so even though they were told nearly a decade ago to seek NEMA approval.

“Their conduct is literally criminal under both the NEMA and the Mineral and Petroleum Resources Development Act (MPRDA). We ask this Honourable Court to protect Wild Coast communities, the environment, and our Constitution by stopping them from proceeding; first on an interim basis, and then on a final basis.”

Each of these paragraphs is elaborated on in greater detail. An example:

“I note that we are concerned that the proposed seismic survey is negative for our climate. The surveys are done to enable the extraction of fossil fuels. This is very troubling to us as we strongly believe that the South African state should be joining global efforts to address climate change, both for the good of the planet as a whole but also for our own wellbeing. This is all the more reason that it is deeply concerning that this exploration intends to go ahead when its environmental management programme (EMP) was developed eight  years ago, in spite of the rapid developments in climate science that have taken place in this time, which have demonstrated that the climate implications of all activities must be considered. The High Court in 2016 [in the Thabametsi case] set a precedent that environmental authorisation should not be granted in the absence of a climate change impact assessment. It is therefore inconceivable, unreasonable and irrational that exploration for oil and gas would be conducted in 2021 without a climate change impact assessment.”

And

“We are already seeing signs of climate change in Amadiba. Our agriculture is becoming more challenging as we experience much more unpredictable weather patterns and more extreme weather events such as more droughts and heavier downpours of rain. [
] Our livestock are sick more often.”

All of these concerns should be understood in the context where domestic and international law is increasingly recognising the rights of indigenous peoples to self-determination. Shell’s process proceeds without any recognition of these rights. Instead, Shell acts like the colonial and apartheid powers that came before them by only approaching Kings and assuming that they can speak for all their subjects. The Kings’ purported representative stated that “the Kings and their traditional councils (with Richard Stephenson mandated to communicate on their behalf in this matter) were the correct structures to work through as a representative of the people.

“Shell’s consultants merely noted a request for five additional meetings to be held, without appearing to hold them or to respect the Kings’ position that their ‘support is conditional to ongoing consultation and open communication between all the role players in this project in the future.’ I am not aware of any such ongoing consultation, and the 2020 audit does not mention Kings or communities at all.

I note that the EMP records that Mr Stephenson claimed to represent Princess Wezizwe Sigcau from the Royal Family with jurisdiction over Amadiba. I have spoken with Princess Sigcau and she denies ever giving such a mandate to Mr Stephenson, who she only remembers from an attempt to develop a commercial bamboo project. We will file an affidavit from Princess Sigcau in due course.”

Another noteworthy paragraph: 

“The Mpondoland Centre of Endemism is one of 35 global biodiversity hotspots and exposing the coastline and ocean of this gem to the risk of environmental destruction would be a desecration. The Agulhas current renders the ocean off the Wild Coast one of the richest marine environments in the world and also renders it highly risky for mineral extraction. An oil spill in the vicinity of this powerful current would be a catastrophe for the entire east coast of South Africa and particularly to the residents of the coastal villages of the Eastern Cape.

“The struggle of the Amadiba community to resist coastal dune mining for nearly 20 years is illustrative of the government’s disregard for the rights of rural communities and its attempts to impose large-scale, top-down “development” projects on communities whilst disregarding or under-emphasising the negative impacts of these projects on the communities’ land-based livelihoods and the environment that sustains them. This does not bode well for the residents of the Wild Coast who stand to lose a lot and gain little or nothing from the exploitation of offshore fossil fuels.”

“Turning to the survey itself, a seismic survey uses shock waves generated by an ‘airgun array’ [
]  As noted [in Shell’s papers], the airgun array’s ‘emissions’ will be between 220–250 decibels at the source. To understand how loud this is, the Honourable Court should appreciate that a jet plane produces 120 decibels when taking off, a jackhammer produces 130 decibels, and fireworks and gunshots produce 140 decibels; 150 decibels will burst a human’s eardrum, while 185–200 decibels will kill a human being.”

Various documents and supporting affidavits are annexed to the founding affidavit

The respondents are the Minister of Mineral Resources and Energy, the Minister Environment, Forestry and Fisheries, Shell Exploration and Production South Africa BV and its associate companies Impact Africa Ltd and BG International Ltd, all represented by attorneys Shepstone and Wylie. They are expected to file their answering affidavit tomorrow (Friday).

  • Stellenbosch and Pretoria University educated Martin Welz (76) has dedicated his life to exposing malfeasance and abuse by the rich and powerful, occasionally ending up in court as a result of his disclosures. After decades of producing award-winning exposĂ©â€˜s for major newspapers, Welz founded Noseweek in June 1993. 

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