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01 September 2022 – Communities celebrate as court sets aside Shell’s exploration right off the Wild Coast of South Africa

    MAKHANDA — The High Court in Makhanda has ruled this morning that Shell’s exploration right to conduct seismic surveys on the Wild Coast of South Africa was granted unlawfully and therefore set it aside.

    This judgment, written by Judge President Mbenenge, is a monumental victory for the planet, won by Wild Coast communities.

    The court case was brought by Sustaining the Wild Coast NPC, Wild Coast communities, Wild Coast small-scale fishers and All Rise Attorneys for Climate and the Environment NPC, represented by the Legal Resources Centre (LRC) and Richard Spoor Attorneys.

    Natural Justice and Greenpeace Africa applied to join the court case, and were represented by environmental law firm, Cullinans and Associates.

    The case sought to review the decision by the Department of Mineral Resources and Energy to grant an exploration right to Shell and Impact Africa, allowing them to conduct seismic surveys off the Wild Coast of South Africa, in pursuit of oil and gas. The seismic surveys would involve a ship towing high-volume airguns which would blast low-frequency sounds at the seabed in regular intervals in order to map the seabed for oil and gas.

    The applicants argued that the right should not have been granted on various grounds:

    That the exploration right was granted unlawfully since there was no consultation with affected communities and that the companies’ consultations with traditional leaders was insufficient.
    In awarding the exploration right, the decision-makers failed to consider the potential harm to the fishers’ livelihoods, the impact on their cultural and spiritual rights and the contribution of oil and gas exploitation to climate change.
    In awarding the exploration right, the decision-makers failed to consider the Integrated Coastal Management Act and its requirement to consider the interests of the entire community – including fishers and also ocean life.

    Findings of the Makhanda High Court:

    The court found in favour of the applicants on all the grounds of review.

    On the issue of public participation, the court found that it was incorrect for consultations to only be conducted with kings, monarchs and other traditional leaders and that such an approach “finds no space in a constitutional democracy” (para 92) and further, that “a chief does not denote a community.” (para 93). “There is no law, and none was pointed to, authorising traditional authorities to represent their communities in consultations.” (para 92)

    The judge went further to find that “…meaningful consultations consist not in the ticking of a checklist, but in engaging in a genuine, bona fide substantive two-way process aimed at achieving, as far as possible, consensus…” (para 95).

    On the issue of harms to the environment, the court found that due to the apparent dispute between expert evidence on the harms of seismic testing to marine life, a precautionary approach should have been adopted by the decision-maker. This applies particularly when there is uncertainty and requires risk-aversion and caution to be taken.

    Further, the judge acknowledged the key role of the ocean in the livelihoods and spiritual and cultural life of coastal communities. “The applicant communities contend that they bear duties and obligations relating to the sea and other common resources like our land and forests; it is incumbent on them to protect the natural resources, including the ocean, for present and future generations; the ocean is the sacred site where their ancestors live and so have a duty to ensure that their ancestors are not unnecessarily disturbed and that they are content.”

    There is no evidence, said Mbenenge JP, that the decision-makers took the potential harm to these religious and ancestral beliefs and practices into account. That rendered the decision unlawful.

    In relation to climate change as well as the issues of the right to food, the judge found that, had the Minister taken these issues into account, he may have found that the project was “neither needed nor desirable” (para 125).

    The court found that the Integrated Coastal Management Act needed to be considered in the decision-making process, which “introduces an integrated approach to management and in this instance, the decision-maker did quite the opposite and dealt with the application as an energy-sector specific issue.” (para 130). The court found that the Minister was duty-bound to consider the ICMA and this in itself, means that the exploration right must be reviewed.

    The court also found that the applicants did not have to lodge an internal appeal as required by the Promotion of Administrative Justice Act (PAJA), as the commencement of the seismic survey at the time of launching the application was imminent. Furthermore, the Minister of Mineral Resources and Energy, Gwede Mantashe, who had previously referred to any opposition to oil and gas developments as “colonialism and aparthied of a special type”, could not be said to have considered the internal appeal with an open mind and therefore the applicants’ perception of bias was warranted.

    Additionally, the court found that the Minister could have simply abided by the decision of the court in relation to part A (the interdict which was granted by Judge Bloem in December 2021) but instead decided to pin his colours to Shell’s mast by refusing to review the exploration rights awarded to them and opposing the interdict in part A.

    Notably, the judge stated that Shell’s Environmental Management Programme (EMPr) contained statements promising jobs and increased government revenue. However, these claims were not supported by evidence in the EMPr. In paragraph 135 of the judgment, the court found that there was no explanation as to how jobs would be created, “or how the seismic survey will improve the socio-economic circumstances in which most South Africans live”. This was particularly important as Shell argued that the applicant communities, who are poverty-stricken, would benefit economically from their oil and gas exploits.

    On the joinder, the applicants, Natural Justice and Greenpeace Africa, were successful.

    The respondents may now apply for leave to appeal the judgment to the Supreme Court of Appeal.

    Quotes from the applicants 

    “Winning this means we are all moving towards an understanding that we need to find sustainable livelihoods; we need to move away from fossil fuels. This is for the good of everyone. Allowing Shell and the government to continue exploring for oil and gas and other fossil fuels would be detrimental to everybody’s lives and to the life of the planet. Winning means a sustainable life on this planet. A victory for the planet. Victory for future generations. It is not about us. We are in this fight for the good of the planet and the good of future generations.

    The fight of coastal communities versus Shell is a struggle for environmental justice, for the protection of rural livelihoods, for sustainable development and for the life of the planet. Shell and the government are fighting for profit in the face of climate change that is putting the future of humanity at risk.”

    Sinegugu Zukulu, Sustaining the Wild Coast 

    “This victory is not just a victory for Wild Coast communities and making our voices heard. This is a victory against capitalist extraction and destruction of our future. This victory is not just about protecting the ocean upon which rural coastal communities depend. This is about protecting the planet and the whole of humanity.”

    – Nonhle Mbuthuma, Amadiba Crisis Committee 

    “As Wild Coast people, we live off the land and the ocean. Government tells us that oil and gas will bring job opportunities but we know very well that this will destroy our livelihoods. The ocean is our best defender against climate change, shielding us from its worst impacts. By helping the ocean we help ourselves. Ocean action is climate action.”

    Siyabonga Ndovela,  Wild Coast resident 

    “These brave community members scored a very significant victory on behalf of rural people across the country who are dispossessed daily of their land and resources by the persistent practice of the State and companies who ignore them and speak only to their traditional leaders. There is no law that authorises chiefs and monarchs to do that and, in any event, the Court went on, there is no space in a constitutional democracy for such a top-down approach.”

    Wilmien Wicomb, Attorney, Legal Resources Centre

    “Greenpeace Africa celebrates this decision to protect the Wild Coast from Shell’s destruction. It is proof that the world is moving into an era of social and environmental justice, where the voices of people are put before the profits of toxic fossil fuel companies.

    There is still much work to be done to undo the destructive colonial legacy of extractivism in Africa, but this decision gives South Africans renewed hope that people’s lives and precious ecosystems are valuable and worthy of protection from climate criminals. The future is renewable!”

    Melita Steele, Interim Programme Director, Greenpeace Africa 

    “The victory in the Shell case is truly a victory for the people and planet. It sets an important precedent during this climate emergency. The court was clear that communities need to be properly consulted and that environmental impact assessments are critical. The cultural and spiritual connection to the land and ocean featured strongly in the judgment. This victory provides hope and momentum as people stand up across the planet. There are 148 oil and gas projects in the pipeline in Africa. This victory will ensure the tide turns.”

    Pooven Moodley, Director, Natural Justice 

    “The court’s decision today is a victory for all of us. This case was a case for all communities across the country. The proliferation of oil and gas exploration applications across South Africa’s shoreline does not bode well for our future, as the climate crisis requires us to stop all new fossil fuel projects.

    This court victory shows that the fossil fuel companies are required to follow the law, include all affected people in public participation processes and consider all the harms to the environment. We are especially pleased by the Judge’s findings on meaningful public participation, that a monarch cannot represent communities in consultations about developments which affect their rights. With so many communities vulnerable to having their land and livelihoods impacted by fossil fuel developments, it is crucial that they are properly consulted. This judgment strengthens our law.

    We want to acknowledge and thank our community representatives who have traveled the whole of yesterday to make it to the Makhanda court today – as they know how important this judgment will be for their communities – and for all of us.

    The success of this case is based on the collaboration of many civil society organisations across South Africa and the world”

    Melissa Groenink-Groves, Programme Manager, Natural Justice 

    ENDS

    For media inquiries

    Sinegugu Zukulu, Sustaining the Wild Coast NPC, zukulusinegugu@gmail.com +27 72 428 5109
    Nontsindiso Nongcavu,  Fisherman and Coastal Links Eastern Cape Chairperson +27 79 593 6693
    Nonhle Mbuthuma, Amadiba Crisis Committee, nonhlembuthuma@gmail.com +27 76 359 2982
    Siyabonga Ndovela, Wild Coast resident +27 710 084 989

    29 August 2022 – LRC statement on the deaths of three learners as a result of homophobic bullying

      29 August 2022

      LRC statement on the deaths of three learners as a result of homophobic bullying

      The Legal Resources Centre (LRC) is saddened by the recent deaths of three learners from around the country, all of whom were allegedly bullied because of their sexuality.

      Lukhanyo Jongqo, (14) from Kubusie Combined School in Stutterheim, Eastern Cape and Tiro Moalusi (15) from PJ Simelane Secondary School in Soweto, Gauteng, died by suicide following alleged homophobic bullying by their teachers. Another learner, Mpho Falithenjwa (14) from Orange Farm in Johannesburg was subjected to discrimination and bullied for his sexuality. He also died by suicide in June this year.

      These incidents underscore some of the barriers that LGBT learners encounter in schools across South Africa such as bullying and homophobia which they experience not only from their peers, but also from teachers who are meant to create an inclusive and safe learning environment for all children in their classrooms, irrespective of their sexuality or gender expression. Further, such incidents also highlight the need for the national Department of Basic Education to take steps to protect LGBT learners in our schools through. Whilst some provincial departments – such as the Western Cape Department of Education – have taken steps by drafting a gender identity and sexual orientation policy, more meaningful action is needed as the mere existence of progressive polices is insufficient. Such learners need a supportive and affirming learning environment in which their rights to dignity and education are respected.

      Policies, at the end of the day, are implemented by employees of the Department of Basic Education, whether they be teachers, principals, teaching assistants and other staff members. Therefore, we risk seeing a repeat of these incidents if progressive policies and staff sensitisation are not implemented urgently and concurrently. The department, and by extension, Minister Motshega, must immediately:

      Order that investigations are launched in respect of the alleged homophobia experienced by Falithenjwa and Jongqo.
      Start collating data concerning the dropout rate of LGBT learners in our schools and identify the barriers which prevent them from fully enjoying their right to education.
      Devise a national gender identity and sexual orientation policy document which is binding on all public schools in South Africa, and will ensure that educational environments are not fertile ground for discrimination on the basis of sexual orientation, and gender identity.

      The LRC welcomes the investigation into the circumstances surrounding the death of Moalusi by the Gauteng Department of Education and the South African Human Rights Commission.

       

      24 August 2022 – Supreme Court of Appeal dismisses Ingonyama Trust Board application for leave to appeal

        For Immediate Release

        24 August 2022

        Supreme Court of Appeal dismisses Ingonyama Trust Board application for leave to appeal

        BLOEMFONTEIN — The Supreme Court of Appeal has dismissed the application for leave to appeal lodged by the Ingonyama Trust and the Ingonyama Trust Board on the grounds that there are no reasonable prospects of success.

        The two applicants had approached the Supreme Court of Appeal following the landmark ruling by a full bench of the Pietermaritzburg High Court in June 2021. The ruling declared that the Ingonyama Trust acted unlawfully and in breach of the Constitution by initiating residential leases with people who were residing and had enjoyed permission to occupy and IPILRA rights on Zulu customary land for generations.

        The High Court granted leave to appeal against the judgment in May this year but excluded the ‘recusal point’ as grounds for the appeal. The Ingonyama Trust and Ingonyama Trust Board had introduced an argument, in their application for leave to appeal, that Acting Judge President Madondo and the late Justice Mnguni ought to have been recused from adjudicating the matter as they had property on land held by the Ingonyama Trust, thus creating the potential for bias. Considering this perceived conflict, the ITB argued that the judgment be declared a nullity and set aside.

        Despite the recusal point being dismissed, it was raised again as the grounds for the application made to the Supreme Court of Appeal. The applicants sought to appeal the decision of the High Court to dismiss the application that the judges ought to have been disqualified from hearing the matter and the proceedings declared a nullity. The ITB applied for the matter to be referred back to the court a quo to be heard by judges from outside the KwaZulu-Natal Provincial Division.

        The Legal Resources Centre (LRC), on behalf of the Council for the Advancement of the South African Constitution (CASAC), argued that the allegations of bias do not satisfy the test for recusal, and nothing alleged by the applicants could constitute grounds for the automatic disqualification of the judges in question. On this basis, it was argued that the application lacked any prospects of success.

        Last week on 17th August, Justices van der Merwe and Kgoele considered the arguments made by both sides and ordered that the application for leave to appeal be dismissed on the grounds that there is no reasonable prospect of success and that there is no other compelling reason why an appeal should be heard.

        CASAC Executive Secretary, Lawson Naidoo said, “We hope that this is the end of the attempts by the Ingonyama Trust and its Board to frustrate the ruling of the high court, and that Minister Didiza can now implement the remedial action ordered by the court.”

        The LRC welcomes this finding by the Supreme Court of Appeal, on behalf of its clients – the residents of the ITB land and CASAC.

        [ENDS]

        Issued by the Legal Resources Centre

        Enquiries: Sharita Samuel, attorney of record – sharita@lrc.org.za

        The Failed Promise of Tenure Security: Customary Land Rights and Dispossession

          This conference is an urgent intervention to expose the ongoing and mounting threats to rural land rights in South Africa, and to prepare to scale up defence of such rights, in the face of proposed new legislation. The stakes are high, as some of the poorest communities in the world’s most unequal country face off against the state and against private companies, both domestic and transnational.

          Constitutional Litigation Attorney

            The Legal Resources Centre (LRC) is a law clinic that pursues novel and effective legal solutions by using a range of strategies, including impact litigation, law reform, participation in partnerships and development processes within and outside South Africa.  We are a non-profit, public interest law centre, providing legal services to the poor and marginalized persons and communities, with the emphasis on land and education rights.

            Key Responsibilities:

            Strategic litigation to further equal access to land, early intervention, further a progressive law reform agenda
            Manage a caseload of land matters including representation in courts and other legal forums
            Develop partnership opportunities and manage stakeholder relationships
            Act as a spokesperson and represent the Centre in public, media and community forums
            Supervise, coach and mentor your team to provide expert legal advice
            Manage risk, compliance, funding and reporting obligations

            Required qualifications and competencies:

            Admission and enrolment as an attorney of the High Court of South Africa
            Minimum of four years post articles high court litigation experience
            Demonstrable litigation, legal writing, research and communication capabilities
            Fluency in at least two official South African languages including English
            A commitment to staff development and teamwork
            Strong negotiation, administrative, training and development skills
            Sound knowledge of human rights, constitutional impact litigation, housing policy, land rights, legal advocacy, law reform and gender law
            Passionate about restoring dignity to disadvantaged individuals and communities in South Africa and ensuring equal access to the land
            Passionate about inequality and have a genuine interest, vision and ability to work in a programme to best respond to land and discrimination law issues and bring a focus on big picture land reform.
            Valid driver’s licence
            Ability to work well under pressure, independently and with others

            Preferred qualifications and experience:

            Right of appearance in the in the high court
            An LLM degree in a human rights related field
            Experience in socio-economic rights litigation with a focus on the right to equitable access to land
            Displayed human rights/socio-economic rights background at the domestic, regional or international level

            The LRC is committed to transformation. Applications from previously disadvantaged, specifically Black African candidates, are therefore strongly encouraged. To apply, please email: (1) a motivational letter; (2) your CV with copies of qualifications; (3) two contactable references to: recruitment@lrc.org.za

             

            19 July 2022 – Western Cape High Court rules Qolani eviction unlawful and unconstitutional

              For Immediate Release

              19 July 2022

              Western Cape High Court rules Qolani eviction unlawful and unconstitutional

              Cape Town — The Western Cape High Court has delivered judgment in the matter of South African Human Rights Commission (SAHRC) and Others v The City of Cape Town and Others  on Friday 15th July.  The Legal Resources Centre (LRC) represented the SAHRC, Housing Assembly and Bulelani Qolani in the matter, challenging the City of Cape Town’s eviction policy that violated the rights of evictees, and the unlawful conduct of the city’s Anti-Land Invasion Unit (ALIU). 

              The brutal eviction of Bulelani Qolani, amid a global pandemic during which South Africa and the world enacted measures to protect citizens from the devastating effects of Covid-19, demonstrated a flagrant disregard for human rights by the city as an organ of state that, at the time, had continuously undermined efforts of national government to curb the spread of the virus, and equally, not protecting socio- economic rights of the poor in the Cape metropole. 

              In the proceedings, the city raised two defences to its actions which were correctly dismissed by the high court.  First, the city argued that its actions were justified as it was acting under the authority of a court order. However, the court held that ‘neither such court order, nor any issued by any court in a constitutional democracy’ would justify the ‘brutal and inhumane conduct perpetrated on an unarmed person’.  

              The City’s second defence concerned its reliance on counter spoliation – a legal defence that allows a person or entity to forcibly retake possession of property unlawfully taken from them. The city relied on a broader interpretation of this defence by arguing that homes which were ‘unoccupied’ can still not be possessed by those who live in them. It is this interpretation which the city believed empowered them to demolish homes of individuals on land owned by the city. The correct interpretation of when counter spoliation is permissible was central to the judgment.  

              The court reaffirmed that when an interpretation of a common law rule, such as spoliation, undermined constitutional values such as the right to housing, the rule should be interpreted narrowly to attain compliance with our Constitution.  

              The court found that whilst counter spoliation, if properly applied is not an invalid defence or unconstitutional, it unanimously held that the application of counter spoliation, “incorrectly interpreted and applied by the city, is inconsistent with the Constitution and invalid” insofar as it permits the eviction of persons and the demolition of their homes.  

              The court therefore rightly dismissed the city’s broad application of counter spoliation insofar as it relates to land occupations and has, in essence, provided clarity on when and at what stage an unlawful occupier is in peaceful and undisturbed possession of property, rendering the defence of counter spoliation inoperable.  

              Whilst we believe that the judgment does not go far enough, it is, on the whole, a positive development in the right to access to housing in South Africa as the high court found that a person entering land with the intention of erecting a structure and begins construction is in peaceful and undisturbed possession and counter spoliation in those circumstances is not available to both the state and private landowners. 

              The LRC welcomes this court judgment which found that the city’s conduct in evicting our clients and demolishing their structures, was unlawful and unconstitutional. 

              The LRC is grateful for the funding made by Legal Aid South Africa in this matter.

               

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