Searcher still blocked from blasting in SA seas after losing urgent court bid

West Coast communities and activists hold a demonstration against seismic surveys outside the Western Cape High Court.
Supplied/ The Green Connection
  • Australian company Searcher last week applied to have an interim-interim interdict issued against its seismic survey activities reconsidered.
  • However, a high court has kept the interdict in place pending a hearing on 24 February.
  • Fishermen have said that they are fighting to protect their livelihoods.

Australian company Searcher has lost an urgent court bid to have a high court reconsider temporarily halting its seismic survey activity off the West Coast.

Last week, Judge Daniel Thulare ruled that the geoscience data company must temporarily halt its seismic survey.

West Coast fishing communities had originally lodged the application for an interim interdict of the survey, pending a legal challenge of Searcher's reconnaissance permit.

Searcher had not filed its answering affidavit for the hearing of the interim interdict, which was scheduled 7 February. Thulare then decided to grant an interim-interim interdict, pending a hearing for the interim interdict, which was moved to 7 March.

Searcher filed its answering affidavit on 9 February and launched a separate urgent application to have the court reconsider the interim-interim interdict.

Thulare heard the application at the Western Cape High Court on Monday. The interim-interim interdict remains in place, pending a hearing for the interim interdict, which has been brought forward to 24 February.

Jeremy Gauntlett, SC, represented Searcher at the hearing on Monday.

Searcher relies on a section in the Uniform Rules of Court to justify bringing the application - namely that the party "against whom an order was granted in such person's absence" may then apply to have an order reconsidered.

In its court papers, Searcher explained that it can be considered "absent" when the ruling was made, given that its answering affidavit had not been finalised, nor was its counsel present to argue the merits of the case - Searcher had briefed different counsel to engage the court on procedure - and so it was "deprived" from being able to defend itself.

Searcher also argued that the interim-interim interdict was granted unfairly. It said that it did not have enough time - six calendar days, or four court days - to file the answering affidavit in response to applicants' founding affidavit, which was around 700 pages long. Searcher suggested that the applicants had more time - as much as three weeks - to get their papers together. According to Searcher it would have been "impossible" to comply with a "punitive and unworkable" timetable.

Searcher, in its court papers, laid out why it believed the tight timetable had implications for fairness. Searcher admitted it missed the deadline to file answering affidavits, but time periods need to be "reasonable and appropriate", it said. It argued that Thulare should have taken into account the "immense volume" of the founding papers and that Searcher would need to be given a fair opportunity to respond. A suggestion by Searcher's counsel to have the matter stand down for a few days, was "inexplicably rejected".

Searcher has indicated that it is losing millions by not being able to conduct the survey, Fin24 previously reported.

It further contended that the prejudice it faces outweighs the "irreparable harm" the applicants said they would suffer if the interim relief was not granted.

Advocate Michael Bishop represented the West Coast fishing communities in the matter.

In their court papers, the West Coast fishing communities suggested that Searcher's urgent court application was an abuse of the court process. They put forward that Searcher "chose" to file its answering affidavit on its own timetable.

The West Coast communities also took aim at Searcher's argument that it was absent when the ruling was granted. "Reconsideration occurs when an order is granted in a party's absence. But Searcher was, literally, present in court," the court papers read.

The communities further contended there was "nothing unfair" about the process they followed. "Searcher was not ambushed or taken by surprise. It chose to ignore the timeline for the hearing, even when it knew that the matter would be heard on 7 February 2022," the court papers read. Instead, the communities put forward that Searcher is the "author of its own misfortune".

The West Coast communities indicated that Searcher had seven calendar days to file its papers, and had known from 15 January that if it did not postpone the survey, the communities would pursue an interdict against it.

They also argue that the seismic blasting will cause "irreparable harm" to marine resources, which will have "knock-on" effects for their livelihoods. "…  the seismic blasting will likely have a detrimental impact on fishes and the fishing communities' environmental rights and rights to culture and tradition must prevail," the court papers read.

Speaking to Fin24 on the sidelines of the court case, Solene Smith - a member of the fishing community in Langebaan - shared how her husband's family had relied on fishing for their livelihoods for generations. 

"They know the fish," she said. "The indigenous knowledge they [fishermen] have, that is what I respect. You can't tell a fisherman to be a doctor, because he was born a fisherman," said Smith.

Smith added that the communities are prepared to fight to protect the ocean. "We will fight them to the end and we will never give up."

Christian Adams, a small-scale fisher from Steenberg's Cove in St Helena Bay, has been fishing all his life. He said the seismic surveys would affect the livelihoods of fishers on the West Coast, which has been the major source of employment for the community throughout the country's history.

"This is our livelihood, this is all we have," he said.