The Western Cape High Court has temporarily halted a seismic survey off the West Coast, pending a hearing on 7 March.
Judge Daniel Thulare granted the interim interdict on Monday.
“[Searcher]…are directed forthwith to discontinue any activities intended to give effect to or related to the seismic survey of the west and southwest coast of South Africa that commenced on 24 January,” Thulare said.
West Coast fisheries and residents, as well as civil society organizations, had in January filed an urgent court application to interdict the seismic survey by Australian geoscience data supplier, Searcher, pending a legal challenge of its permit. The application is in two parts: Part A seeks an urgent interdict to lock the survey pending part B of the application, which is a legal challenge of the reconnaissance permit Searcher was granted to conduct the survey.
The applicants believe that the reconnaissance permit granted to the searcher by Petroleum Agency South Africa (PASA) in May 2021 was unlawful and want it to be reviewed and set aside by the court. The applicants argue that Searcher is obliged to consult with interested and affected communities when it applied for the permit – but failed to do so.
Furthermore, they put forward that Searcher was obliged to obtain environmental authorization in terms of the Mineral and Petroleum Resources Development Act (MPRDA) and the National Environmental Management Act (NEMA). “Searcher has not obtained environmental authorization as required,” the applicants’ court documents read.
According to the applicants, the survey, which has already commenced blasting, will likely cause significant and irreparable harm to marine and birdlife in the affected area. The survey is to be conducted over an area of about 297 000m2 – stretching between the Namibian border and Cape Agulhas.
Seismic surveys involve using airguns to blast pulses of sound into water, in order to map out the seabed for resources like oil and gas. The negative impact on marine life by extension also impacts the constitutional and customary rights of coastal communities – namely their environmental rights, livelihoods, food security, and cultural beliefs, according to the applicant’s court papers.
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Searcher had failed to submit answering affidavits ahead of the hearing of Part A on 7 February, and much of the debate was about whether the court grant a default judgment – an interim interdict as sought in Part A or to give the Australian company more time to file its court papers by Wednesday for a hearing at a later stage.
Tembeka Ngcukaitobi, SC, who represented the applicants, argued that if there is no answering affidavit and by extension non-compliance to the timetables set by applicants, the court must grant a default judgment, favoring the applicants. He contended that Searcher had known the hearing would take place on 7 February.
Ngukaitobi said Searcher “unilaterally elected” not to file answering affidavits according to set timelines. “They just decided they are not to do it. They may have a good excuse, but that excuse must be on an affidavit. One of the things that really astonished me about this case, even now, they have no affidavit in front of you as respect to the court…”
Ngukaitobi noted that Searcher had corresponded directly with the applicants, requesting more time to file papers. The applicants were open to allowing more time, provided Searcher suspend blasting.
But Searcher has commenced blasting 24 January, as was heard in the court. “…No one has owned up on paper that blasting has commenced,” said Ngukaitobi.
The searcher, on the other hand, was not prepared to halt the survey. “My clients are not in a position to stop this survey completely … for reasons which will become apparent in the answering affidavit to be filed on Wednesday,” said Ranjan Jaga, SC, who represented Searcher.
Jaga said his clients were instead willing to conduct the survey 58.5km from the shoreline – as opposed to 20km as provided for in the reconnaissance permit – pending the hearing. “That is the very best our clients can do,” he said.
Judge Thulare was opposed to either extreme put forward and preferred the “middle ground”.
Kicking the can down the road
Ngukaitobi called for Thulare to grant the interim interdict – pending the hearing of Part B – on a default basis given Searcher’s failure to file answering affidavits so far. “Today, my lord, they have not agreed to suspend the blasting. They say they are going to blast 58km (sic) from the shore, and they are entitled to blast 20km away from the shore. But they want to blast nevertheless,” he said.
He added that it is not the applicants’ fault that Searcher had not filed documents. He suggested that Searcher was just trying to “kick the can down the road.”
While Searcher was prepared to have the hearing commence on Friday, 11 February, Ngukaitobi said the newly proposed timeline would be “unreasonable” and a “recipe for disaster” as applicants would still have to file replying affidavits, heads of argument, and the judge would have to read all the papers before the hearing on Friday.
The court however agreed to a more realistic time frame and has moved the hearing of Part A to 7 March, allowing for parties to file relevant documents. The seismic survey will be halted during this time.
The searcher has agreed to file their papers on 9 February and applicants will file replying affidavits on 25 February. Each of the parties will file heads of argument ahead of the hearing on 7 March.