In essence the applicants in both instances sought to interdict Shell from conducting a seismic survey along the east coast of South Africa in what is known as the Transkei exploration area, being between 20 and 80 kms from the shore. Shell intended to use a specialised seismic survey ship, the Amazon Warrior would discharge pressurised air from its airgun arrays to generate airwaves aimed at the seabed. A collapsing air bubble would emit a high level, low frequency acoustic sound measured at 220 decibels, occurring at intervals of 10 to 20 seconds for the duration of the employment of the air guns. It was the submission of the applicants that these acoustic events which cause harm to the marine life in the area in which the survey was conducted. Judgment in the Border Deep Sea application advanced core issues such as, applicants for interim relief are required to establish at least a prima facie right to relief, they need not establish that right on a balance of probabilities. Webster v Mitchell 1`948(1) SA 1186 (W) explains it as - a prima racie right where more is required than merely looking at the allegations of the applicant, but something short of a weighing up of the probabilities of conflicting versions is required.
Court tasked with weighing up Financial consequence vs Environmental Harm

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The learned Judge, after setting out the arguments presented by the applicants and respondents and having found that the applicants had established that there was a prima facie basis on which the Minister’s decision could be reviewed. The honourable Court discussed the weighing up of massive consequences financial against potential environmental harm notwithstanding global concern and broader issues in re the interplay between law and science, the manner and extent of sourced scientific proof and the mode of judicial assessment with public interest at heart. Accordingly the Court dismissed the Border Deep Sea application. In the Sustaining the Wild Coast application, the applicants were non-profit companies, natural persons and a communal property association seeking protection for sustainable livelihoods, the environment, fishing resources, the head-woman of a community and climate and environmental justice, who all approached the Court for a decision whether or not the applicants were entitled to an interim interdict. At issue inter alia were firstly, communities entitled to meaningful consultation about the seismic survey, secondly, a statutory right under NEMA, and the fact that Shell had no environmental authorization under NEMA for exploration for oil and gas. The constitutional rights upon which the applicants claim was implicated were contained in sections 24, 30 and 31 of the Constitution of South Africa 108 of 1996. In Bengwenyama Minerals* it was discussed the importance of consultation; and that it seemed to the Court that the exploration right, which was awarded on the basis of a substantially flawed consultation process, was thus unlawful and invalid and faced with certain facts there remained a threat to marine life with resultant economic harm however no prejudice to Shell. The honourable court set aside the decision under review on the basis that the decision-maker had not established that the risks were absent or negligible. Numerous precedents were cited.

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* Vide Border Deep Sea Angling Association & Others v Minister of Mineral Resources & Energy & Others [2021] ZAECGHC 111 (“the Border Deep Sea application”) and Sustaining the Wild Coast NPC & Others v Minister of Mineral Resources & Energy & Others [2021] ZAECGHC 118; [2022] 1 All SA 796 (ECG); 2022(2) SA 585 (ECG) (“the Sustaining the Wild Coast application”); *Bengwenyama Minerals* (Pty) Ltd and others v Genorah Resources (Pty) Ltd and others 2011(4) SA 113 (CC). Company Law Today comments - A whisper measures 30 dB, normal conversation measures 60 dB, a medium motorcycle engine running measures 95 dB, a raised voice measures between 65-75 dB, an average size dog barks at 120 db, the noise level for a medium tree saw measures 106 dB. The air bubble from the Amazon Warrior would however produce an acoustic 220 decibels every 15 to 20 seconds - imagine what that would do to the fish!!
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