live

WRAP | Court to make ruling on Shell's seismic survey interdict on Friday

accreditation
0:00
play article
Subscribers can listen to this article
Last Updated
Live News Feed
Go to start

01 Dec 2021

Govindjee reserves judgment but pledges to deliver judgment on Friday at 9am.

01 Dec 2021

Duminy says that they will not object to this.

01 Dec 2021

Friedman however asks permission to file an additional one page affidavit overnight to indicate that there was compliance in terms of notifying interested and affected parties.

He says applicants should then also be allowed to file a one-page affidavit.

01 Dec 2021

Govindjee says he will take time to decide on the matter on Thursday.

He plans to make a ruling at 9am on Friday.

01 Dec 2021

Duminy refers to Shell's counsel indicating that it might have to "walk away" from the survey entirely if it can't conduct it in the current window.

Duminy says this is simply a possibility.

 

01 Dec 2021

Responding to whether this is an attempt to stop the survey.

Duminy asks where this point has been made by the applicants. Why is it that this is assumed to be part of a larger startegy and not aimed about protecting the legitimate interests of the environment and applicants, which in fact they are entitled to do.


01 Dec 2021

Duminy responds to a question about what is different about this seismic survey.

Duminy says it is the Wild Coast - where it will be conducted.

01 Dec 2021

Duminy deals with whether an EMPr is an environmental authorisation - he says this does not have to be decided on in this sitting.


01 Dec 2021

Duminy says not everyone has a right to do as they please with the ocean.

If one is awarded a right - that right is limited to conditions or requirements set out in the EMPr.

These conditions remain legally binding and must be compliant.

01 Dec 2021

Duminy says to conduct exploration - one needs a lawfully awarded exploration rights.

But there are limitations - such as the competing considerations fo the environment, society.

01 Dec 2021

Duminy now gives replies.

01 Dec 2021

Friedman says there are a range of "fundamental defects" in the application. He says there is no case made of prejudice. He asks for the application to be dismissed, or struck off the roll and that the costs of two counsel be carried by the applicants.

01 Dec 2021

Friedman says enough of the parties that would be applicants in the review- were notified of the survey.

01 Dec 2021

Friedman says that the review could have been instituted no later than 2020, as there was a public participation process linked to the validation of the authorisation.

01 Dec 2021

Friedman now talks to the "abuse of process".

This is where the party abuses the rules of court to obtain an ulterior purpose.

He says what the applicants are abusing the rules to get an interdict which will ultimately stop the survey in its tracks.

01 Dec 2021

Friedman further emphasises that applicants have created "self-urgency" by filing the application at such a late stage.

01 Dec 2021

The Department of Mineral Resources has previously said that the pursuit of oil and gas industries is part of the country's economic reconstruction and recovery plan.

Listen here

01 Dec 2021

Friedman says that if Shell cannot conduct the survey now or even the next window- then it will have to abandon the whole survey, which is meant detect gas. This clearly indicates logistical and financial prejudice to Shell. There are also negative implications for the country.

01 Dec 2021

Friedman says that the case put forward by the applicants is at war with itself.

On one side they seek to have the EMPr set aside. But on the other, the applicants rely on the EMPr to make the point that the survey can't proceed in December.

01 Dec 2021

Govindjee asks what would be the effect if the interdict was implemented for December?

Friedman says the applicants put forward there is something unqiue about December which they rely on to demonstrate prejudice. 

Friedman said if a clear case was made in the founding affidavit that there was something unique about December, to allow the survey to take place in January, then Shell would have responded to that appropriately and indicated that weather conditions warrant it start in December.

But the applicants were not specific,  instead their argument has been that there is "generally" prejudice.


01 Dec 2021

Friedman says that applicants are using the mechanism of an interim interdict to stop the survey from happening at all.

An interdict would stop the survey until the judicial review takes place. The judicial review would not be complete before the window for the survey (December to May) closes.

01 Dec 2021

In its answering affidavit Shell says that the applicants have not made a case of urgency.

Shell says that the extremely urgent timing of the application is prejudicial to the company - as it does not allow for the orderly exchange of court documents. Shell said that there are many arguments in the founding affidavit that it could not address due to the time limits. Shell puts forward that the application should be dismissed on this ground alone.

01 Dec 2021

Friedman says that the applicants are relying on the EMPr to suggest there is prejudice.

There is an issue of fairness - Shell needs a fair opportunity to respond to the allegations raised and indicate why its mitigation measures are more than adequate.

01 Dec 2021

Friedman says that the applicants create a view that there is a unique and profound prejudice that will arise if the survey is not stopped.

He asks the court to consider what is in the founding affidavit to substantiate this.

Friedman says routine seismic surveys are conducted around the world and in South Africa.

01 Dec 2021

Friedman asks the court to consider what is different to Shell's survey and the 35 others that have been conducted in South Africa.

01 Dec 2021

The profound inconvenience and financial prejudice to Shell must be considered, he says.

01 Dec 2021

Friedman says there is a temptation to conclude that if there is the slightest doubt on the impact on the environment, then the conduct of the private company must be simply interdicted.

But this is opposite to what the law requires when it comes to interim interdict.

The commercial and logistical prejudice to a private party that holds a valid authorisation - until set aside - cannot simply be dismissed.

He says the applicants have known for at least a month that the survey will take place - which is clear final preparations and great cost would have been made to start. The financial prejudice to Shell cannot be dismissed.

01 Dec 2021

Friedman says the view of applicants is to be dismissive of financial prejudice - especially when it comes to big companies.

01 Dec 2021

Friedman notes that the survey has been planned for months and at great cost (millions of dollars).

He asks the court to consider the allegations in the founding affidavit to justify delaying it at this "very last moment". 

01 Dec 2021

Friedman now tackles the proper approach to urgent applications.

The principles of urgency is such that:

The applicants must show real prejudice that cannot be alleviated by ordinary course.

The applicants must justify the truncation of time periods.

Thirdly, he explains if the delay by the applicants has resulted in cause for urgency - then that is self-created urgency.

01 Dec 2021

Friedman - acting on the assumption that its authorisation is valid, Shell has spent millions of rand to make itself ready to commence with the seismic survey from 1 December.

He says seismic surveys have been conducted around the world and in SA, without there being real evidence of negative impact.

01 Dec 2021

Shell's counsel Adrian Friedman is up next.

He says the environmental authorisation in terms of which the survey will be conducted has been in force for a considerable period of time.

Shell asserts the authorisation is valid.

01 Dec 2021

Beyleveld now refers to comments that there will be "some impact" if conducted in December.

Beyleveld says that there will always be some impact, regardless of what month the survey is conducted. The question should be whether it is a "legitimate" impact or not. But this is to be dealt with in the review application.

Beyleveld says that the matter is not that urgent - there is nothing on papers to suggest that anything catastrophic will happen if an urgent review takes place in December or January.

He says the application should be struck off the roll.


01 Dec 2021

Beyleveld says the application was brought with "inoordinate haste."

He asks why the urgent review was not launched earlier in November.

01 Dec 2021

Beyleveld now also questions whether applicants had not known about the seismic survey until 29 October 2021.

01 Dec 2021

The hearing resumes. Representing the Minister of Mineral Resources and Energy is Albert Beyleveld SC.

01 Dec 2021

Court is currently in adjournment for a few minutes.

01 Dec 2021

Duminy suggests that Shell did not comply with the mitigation measures of its own EMPr 9with respect to consultations with interested and affected parties).

01 Dec 2021

Duminy says the standard requirements for the interim interdict being sought is satisfied.

01 Dec 2021

Duminy suggests that the harm to the environment does not seem capable of being repaired.

It is not up to the applicants to indicate the extent of the damage i.e. how many whales will be affected.

If you don't know then you should err on the side of caution, he suggests.

There is anticipated harm - as reflected in the EMPr. But there is no suggestion to indicate that such harm is reparable.

Shell's case is that applicants have exaggerated. it has not responded to whether the harm is reparable.


01 Dec 2021

Duminy says that applicants have been treated as outsiders- not privy to information about the seismic survey nor about why it should proceed in December. 

01 Dec 2021

Duminy refers once more to the EMPr, which cites impacts on certain whale species.

These activities have been identified in advance for having a deleterious environmental impact.


01 Dec 2021

Govindjee asks whether it is suggested that the monitoring and mitigation measures will be insufficient. He asks if there is evidence of whales  suffering physiological injury as a rsult of seismic survey around the world.

Duminy says he can't say.

Govindjee asks if irreparable harm is not somehting more than behavioural tendencies... If the issue is physiological injuries then should that not be made clear to the court.

01 Dec 2021

Govindjee asks whether anything adverse to the environment, like fishing where there is a rare animal, would then constitute irreparable harm?

He asks how it all links back to the issue of the seismic survey taking place in December and the whales.

01 Dec 2021

Duminy refers to the EMPr and says that whales will be disturbed behaviourally and physiologically by the sound.

01 Dec 2021

Govindjee wants Duminy to clarify what the irreparable harm will be if the seismic survey continues - with mitigation measures in place.

01 Dec 2021

Duminy says that suggestions that because there are no studies to confirm that sound from seismic surveys have a significant impact on marine life does not necessarily mean it does not happen.

The premise of the EMPr is that it does happen.

The fact that there is a referral to "properly mitigated" seismic surveys, is a concession that there is harm, says Duminy.

01 Dec 2021

Duminy says a strong case has been made on the substantial harm to the environment.

However there is still an assessment to be made on the degree of harm. But the fact of harm can't be disputed.

01 Dec 2021

Duminy suggests that Shell did not comply with its own mitigation - in terms of notifying all interested and affected parties.

01 Dec 2021

Duminy says that the fishing industry was to be informed of the seismic survey - the applicants submit that not all players were notified.
We live in a world where facts and fiction get blurred
In times of uncertainty you need journalism you can trust. For only R75 per month, you have access to a world of in-depth analyses, investigative journalism, top opinions and a range of features. Journalism strengthens democracy. Invest in the future today.
Subscribe to News24
Rand - Dollar
15.10
+0.9%
Rand - Pound
20.46
+0.1%
Rand - Euro
17.13
+0.0%
Rand - Aus dollar
10.85
-0.1%
Rand - Yen
0.13
+0.1%
Gold
1,834.71
0.0%
Silver
24.29
0.0%
Palladium
2,111.50
0.0%
Platinum
1,034.00
0.0%
Brent Crude
87.89
-0.6%
Top 40
68,186
-2.1%
All Share
74,835
-1.9%
Resource 10
74,924
-3.0%
Industrial 25
94,147
-1.8%
Financial 15
15,076
-0.2%
All JSE data delayed by at least 15 minutes Iress logo
Company Snapshot