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Mail & Guardian
08-05-2025
- Business
- Mail & Guardian
Court case challenges SA's approval of offshore drilling by TotalEnergies
A judicial review heard in the Western Cape high court this week has questioned the environmental authorisation process for TotalEnergies' offshore oil and gas exploration rights between Cape Town and Cape Agulhas. (Chesnot/Getty Images) A judicial review heard in the Western Cape high court this week has questioned the environmental authorisation process for The applicants, the This includes Their case is focused on the state's decision to grant environmental authorisation to TotalEnergies EP South Africa Block 567 (Pty) Ltd (Teepsa), which permits it to conduct exploratory drilling for fossil fuels off the country's south west coast. The applicants participated in the process that led to the granting of the environmental authorisation. The respondents are the minister of forestry, fisheries and the environment and the minister of mineral resources and energy, the director-general of the department of mineral resources and energy as well as Teepsa. On 17 April 2023, the director-general of the former department of mineral resources and energy granted an environmental authorisation to Teepsa to conduct exploration well drilling in Block 5/6/7. On 24 September 2023, the environment minister dismissed the joint appeal by the applicants against the initial decision. According to the applicants' heads of argument, the bulk of their review grounds are premised on the final environmental impact assessment report failing to meet the standards imposed by the National Environment Management Act (Nema) and the National Environmental Management: Integrated Coastal Management Act (ICMA). Specifically, they contend that the decisions to grant the environmental authorisation were unlawful and irrational in six respects. Among these are that the final environmental impact assessment report failed to properly assess — and the state respondents failed to consider — the socio-economic effects of the proposed project, 'which a well blowout and consequent oil spill will have on the fishing industry and small-scale fishers'. The applicants argued that the state respondents failed to consider the factors prescribed by the ICMA and failed to properly assess and consider the need and desirability of the proposed project in relation to the climate change impacts, 'which will be caused by burning any gas discovered by the proposed project'. The state respondents failed to assess and consider the transboundary effects of the proposed project both on Namibia and on international waters. Neither the final environmental impact assessment report, nor the environmental management programme report, included Total's oil spill contingency plan or blow out contingency plan, they argued. 'Accordingly, the final environmental impact assessment report's failure to assess the impacts of an oil spill on fisheries, the factors prescribed by the ICMA, the relevance of climate change impact to the need and desirability of the proposed project, and the transboundary impacts of an oil spill, render the decisions to grant the environmental authorisation unlawful, irrational and unreasonable.' Although TotalEnergies has since announced its withdrawal from exploration activities in Block 5/6/7, it has now filed a joinder application to include Shell as a party in the legal proceedings. 'The application is made on the basis that Shell holds a commercial interest in the right, and that it will become the exploration operator in the future. However, the Green Connection and Natural Justice oppose this move, arguing the exploration right has lapsed and that Shell has no legal standing in the case.' Teepsa said in its heads of argument that the applicants have 'conflated the considerations that are only relevant to production operations with the considerations relevant to exploration operations'. 'The information the applicants say should have been placed before the decision-makers was either in fact placed before the decision-makers and considered, or, on a proper scientific approach, is simply not capable of reliable ascertainment at the stage when authorisation is sought for exploration operations.' The applicants would prefer that no new oil and gas exploration be authorised, it maintained. 'They wish to ensure that the various stakeholders — including the public, the government and those whose skill lies in discovering new sources of energy — remain ignorant of whether South Africa is possessed of hitherto unknown sources of energy. 'That is the essence of their objective. But there is no warrant for this court to assist the applicants in achieving that objective, given its sterilising effect. Ignorance about South Africa's energy options cannot be in the interests of the country or its people.' The environment minister noted in his heads of argument that, since the 1940s, 358 offshore wells have been drilled in the waters of South Africa for the purposes of oil and gas exploration and production, with no recorded economic losses incurred by fishers as a result of blowouts or oil spill. The government has also established several measures and legal frameworks to mitigate the risks associated with blowouts and oil spills. The minister said Nema mandates Teepsa to take reasonable measures to contain oil spills, clean up, remedy effects and assess the effects on the environment and public health. 'Under Nema, Teepsa is obligated to implement measures aimed at preventing, controlling, and minimising blowouts and oil spills. Additionally, Teepsa is responsible for bearing the costs associated with the remediation of blowouts and oil spills that occur during the exploration and production phases of operations. 'The applicants' case is premised on the assumption that there exists no distinction between the environmental impact assessment for the oil and gas exploration phase and production phase and that the final impact assessment report supporting the environmental authorisation also encompasses the oil and gas production phase.' This assumption is 'erroneous' in both legal and factual contexts, the minister argued. 'The environmental impact assessment for listed activities specifically for the proposed well drillings, [is] restricted solely to oil and gas exploration.' The scope of the environmental impact assessment for oil and gas exploration encompasses activities such as seismic surveys, exploratory drilling and preliminary geological studies. 'The data available and presented during the exploration phase is comparatively limited due to the uncertainty regarding seafloor conditions. The environmental impacts are minimal due to minor seafloor disturbance and low emissions. If oil and gas reserves are discovered within the block, Teepsa will be obligated to apply for a production right to the minister. 'If Pasa [Petroleum Agency of South Africa] accepts the application, Teepsa is required to apply for the environmental authorisation for listed activities in terms of section 24 of Nema or oil and gas production; consult the interested and affected parties, including the fishing sector and other marine users, and compile another detailed environmental impact assessment report with scientific studies dealing with, inter alia, blowouts and oil spills during the oil and gas production stage.' The minister stressed that until the oil and gas reserves are discovered in the block, there are no grounds in law or fact to assume that the environmental impact assessment encompasses both the exploration and production phase.
Daily Maverick
05-05-2025
- Politics
- Daily Maverick
‘We have a soul connection with this ocean' – SA fishing communities, activists rally against TotalEnergies
Chants of 'Hamba Total, hamba!' rang outside the walls of the Western Cape Division of the High Court on Monday, as coastal communities from across South Africa gathered in support of a legal challenge against offshore oil and gas exploration. 'We are here to protect our livelihoods as the fishing community. The top-down decisions that they are making are not in favour of us as the fishing community,' said Walter Steenkamp, a lifelong fisherman from Port Nolloth and chairperson of Aukotowa Fisheries. Steenkamp was standing in front of the Western Cape Division of the High Court in Cape Town on Monday, where a long-anticipated legal challenge against TotalEnergies EP South Africa Block 567 (Teepsa) got underway. The case, brought by environmental justice groups The Green Connection and Natural Justice, contests the government's decision to grant environmental authorisation to Total for offshore oil and gas exploration between Cape Town and Cape Agulhas (Blocks 5/6/7). As the three-day court proceedings commenced, solidarity protests erupted across the country – from TotalEnergies' headquarters in Johannesburg to Mabibi Beach in KwaZulu-Natal, Umngazi Beach in Port St Johns, Wavecrest in Centane and TotalEnergies Ziyabuya in KwaDwesi, Gqeberha. The case deals with a judicial review of the Environmental Authorisation (EA) process, contesting the government's failure to properly assess the risks posed by oil and gas exploration before granting the EA. However, the main legal focus on Monday was Teepsa's application to include Shell as a party to the case, as Shell holds joint exploration rights with TotalEnergies and is the current operator of the joint venture. Should the court approve the joinder, Shell would eventually hold the contested EA. Steenkamp has spent more than 36 years fishing off Port Nolloth, learning from his father, who was also a fisherman before him. He said that should the decision go ahead, and the offshore oil and gas exploration continue off the coast, 'it will destroy our whole fishing life that we, as fishers, have – that is the only life that we know as fishers'. 'They are making the ocean a scrapyard … We can already see the footprints that they leave behind in places like Mexico and Nigeria,' he reflected. 'Already, the fishers' lives are in danger because there is no food for them. There are no fish in the ocean or the river.' Steenkamp said he was outside the court to protect his livelihood as a fisherman and to protect what they have in the ocean, 'because we must take care of what is in the ocean for us … Already, the stock is coming down [because] of all the global warming and all the pollution they cause in the ocean.' Stepping away from the gathering of fisherfolk outside the high court, Deborah De Wee, chair and founding member of Spirit of Endeavour Fisherfolk Women in Doringbaai, told Daily Maverick they did not support the EA granted, and feared that the incoming oil and gas exploration would destroy their livelihoods, their children's inheritance and their culture. 'This is part of us. We are part of that ocean; we have a soul connection with this ocean,' she said. All of De Wee's children and her household were baptised in the ocean where the oil and gas exploration is set to take place. De Wee expressed deep disappointment in the government, saying it had failed in its duty to protect indigenous communities. Melissa Groenink, a programme manager at Natural Justice, said that they were confident about the case, and that Shell wouldn't be allowed to continue to try to join the case. 'Our government should be standing with us, defending our rights, and our connection to the land and sea. Instead, they're the ones giving exploration rights and permits to big corporations and capitalists,' Deborah De Wee, chair and founding member of Spirit of Endeavour Fisherfolk Women in Doringbaai. The court proceedings The hearing began with Judge Nobahle Mangcu-Lockwood hearing Teepsa's Shell joinder application. Teepsa argued that Shell, as a joint holder of the exploration right and current operator of the joint venture, should be included as a party since it is expected to become the holder of the EA. However, the applicants, represented by Cullinan & Associates, opposed the joinder, arguing that the exploration right had lapsed and that Shell had no legal standing in the case. Advocate Matthew Chaskalson SC, for the applicants, made two main points against Shell's joinder application: first, that Shell has no legal interest in the review since it does not yet hold the EA; second, the exploration right Shell claims expired and rights cannot be extended indefinitely amid bureaucratic delays. Ultimately, the applicants argued that Shell's interest was restricted to its exploration right and, although it intends to take the transfer of the EA, it has not yet made that application, which means Shell just has a commercial interest at this stage and should not be allowed to join the case. However, responding to this, Advocate Chris Loxton SC, representing Teepsa, said the applicants lost sight of the fact that the joint venture, Shell and Teepsa were granted a right in terms of the Mineral and Petroleum Resources Development Act to explore. Loxton said this right was exercisable by any of the joint venture partners, provided they had the EA. According to Loxton, the exploration activities are intended to benefit all members of the consortium, not just Shell, in a commercial sense. Loxton emphasised that Shell's interest is not just commercial but a real legal right, including the right to gain knowledge from exploration. If the review succeeds and the EA is set aside, Shell's rights would be directly affected. He said, 'The exploration undertaken benefits every member of the consortium. Shell's interest is not vague or commercial; it is a real right directly affected by this case.' Following this, the court heard the applicants and Teepsa's arguments on the merits. Chaskalson challenged the EA, saying it was based on an inadequate environmental impact assessment. Key concerns included failure to consider socio-economic impacts, climate change risks and procedural flaws like insufficient public consultation. He argued that the public was not properly consulted about the exploration for Block 5/6/7 and that, without this public participation, the government could not make a fair and equitable decision. Chaskalson further said that TotalEnergies did not properly assess the climate change impacts of both exploration and future production, and that the project conflicts with South Africa's commitments under the Paris Agreement, as a commercially viable oil or gas project would increase greenhouse gas emissions. Loxton countered that the applicants confused exploration with production. He said the environmental impact of exploration is very different from that of production and that climate change effects relate mainly to production, not exploration activity. On the challenge to the rationality of granting the EA, Teepsa argued that the National Environmental Management Act does not require complete knowledge of all potential consequences before authorisation can be granted and that the decision was rationally connected to the information available. The court adjourned with proceedings set to continue on Tuesday and Wednesday. Nationwide solidarity Activists from several organisations gathered outside TotalEnergies' Johannesburg head office on Monday in solidarity with the Western Cape communities that were challenging the offshore oil drilling approval. Carrying placards reading 'total removal of oil and gas in Africa' and 'Africa's resources = Western imperialism's bloodline', protesters stood with coastal communities and small-scale fishers taking legal action against the French multinational. Attendees included activists from the Climate Justice Coalition, StopEACOP, Sisonke Revolutionary Movement, Ekurhuleni Environmental Organisation, Socialist Youth Movement and Mining Affected Communities United in Action, representing various parts of Gauteng. The protest formed part of a broader, continent-wide campaign — backed by 110 organisations across Africa — demanding that TotalEnergies withdraw from fossil fuel projects and support a clean, community-led energy future. StopEACOP Campaign Coordinator Zaki Mamdoo said the court case is just one front in a growing push to expel Total from Africa. 'Oppression, exploitation and extraction are in the DNA of a company like Total,' he said. 'Even when we talk about renewables, we're calling for socially owned energy systems democratically run by communities, workers and the state. It's an anti-corporate, anti-profit vision for our energy future.' Reading a statement aloud before he handed the memorandum over to Total SA, Mamdoo said: 'Total, your time in Africa is up.' Sibu Duma, communications officer for TotalEnergies South Africa, accepted the memorandum on behalf of the company, saying it would be shared internally and 'addressed accordingly', as it had been after protests in 2022 – although protest organiser Kholwani Simelane noted that promised meeting after a 2022 protest never materialised. 'TotalEnergies fully respects the right to demonstrate, freedom of expression, and promotes transparent and constructive dialogue with all its stakeholders,' said Duma. Simelane said they had gathered in Johannesburg in solidarity with coastal communities '[not] simply because oil and gas exploration affects the livelihoods of coastal communities, but also because African people for the longest time have depended on the ocean as a source of living towards our spirituality and also the well-being of the biodiversity of the ocean, itself.' A member of the Climate Justice Coalition, Simelane added that their activism goes beyond coastal solidarity, aiming to show how environmental justice intersects with broader struggles. 'Because that speaks to livelihood, sustainability, and socio-economical issues that are facing South Africa,' he said. Gift Radebe, a member of Mining Affected Communities United in Action, grew up and still lives in Phola, a mining town in Mpumalanga's coal belt. Although his community's experience is with coal mining rather than oil exploration, Radebe has witnessed first-hand the environmental and social impacts fossil fuel extraction has on local communities. 'The challenge we face is a complete absence of accountability,' said Radebe. 'If more mining licences are granted to companies to expand from coal and gas into oil and gas, we will face even more problems. 'Look at the Western Cape, where oil exploration is already causing serious issues. People who depend on fishing for food and income are suffering.' DM
