The applicants were fourteen parties including individual small-scale fishers (applicants 1-12), fishing cooperatives/communities (applicants 2-3), indigenous communities (applicants 1, 10, 11), and environmental/governance organizations (applicants 13-14) from the Western Cape West Coast. The third and fourth respondents (Searcher) were granted a reconnaissance permit by the first respondent (Minister of Mineral Resources and Energy) on 18 May 2021 under section 74 of the MPRDA to conduct seismic surveys along the West and South-West Coast of South Africa. Searcher submitted an environmental management plan (EMP) in September 2021, prepared by SLR Consulting. The applicants alleged they were not meaningfully consulted during the process, despite being interested and affected parties under section 74(4)(a) of the MPRDA. They claimed the consultation process was flawed: notices were only in English and Afrikaans (excluding isiXhosa speakers), targeted those with technological access and literacy, and deliberately excluded small-scale fishers whom SLR deemed "not directly affected." Searcher held consultation meetings only with the commercial fishing sector, who secured concessions including avoidance of "ring-fenced" areas. Many persons listed as consulted denied receiving notification. The survey commenced on 24 January 2022 during the festive season. Applicants sought urgent interdictory relief to halt the survey pending their internal appeal and Part B of the application.
1. The third, fourth and sixth respondents are interdicted from continuing the seismic survey of the West and South-West Coast of South Africa in terms of the Reconnaissance Permit granted on 18 May 2021 under section 74 of the MPRDA pending: 1.1. The outcome of the applicants' internal appeal under section 96 of the MPRDA; and 1.2. The outcome of Part B of this application. 2. The third and fourth respondents to pay the costs of Part A jointly and severally, including costs of three counsel. 3. The third and fourth respondents to pay the costs of 7 February 2022 jointly and severally, including costs of three counsel. 4. The third and fourth respondents to pay the costs of 14 February 2022 jointly and severally, including costs of three counsel.
1. Consultation with interested and affected parties under section 74(4)(a) of the MPRDA must be adequate, appropriate and meaningful, not merely formal. It requires genuine engagement with all affected parties, including small-scale fishers and indigenous communities. 2. A consultation process that deliberately excludes affected communities by deeming them "not directly affected" without proper investigation, and that uses methods inaccessible to the poor, illiterate, and non-English/Afrikaans speakers, violates the obligation to consult and the constitutional right to equality under section 9 of the Constitution. 3. The audi alteram partem principle requires that parties be afforded a fair hearing and opportunity to respond before determinations are made about their interests. 4. Proper consultation is integral to determining whether a proposed activity will cause unacceptable environmental harm under section 75(1)(c) of the MPRDA, and a permit granted without such consultation may be procedurally unfair and unlawful. 5. The Minister cannot lawfully grant a reconnaissance permit where consultation requirements have not been met, as this would prevent proper assessment of environmental impacts. 6. In the balance of convenience for interim interdicts, harm to constitutional rights (equality, food security, livelihood, cultural rights) of vulnerable communities cannot be quantified or weighed against commercial interests and financial losses of private companies. 7. The precautionary principle applies where there is scientific uncertainty about environmental harm, particularly to marine ecosystems. 8. An internal appeal remedy is not an adequate alternative remedy where the harm will be irreversible by the time the appeal is decided.
The court made several non-binding observations: 1. The court expressed concern about the independence and neutrality of expert witnesses on both sides, noting that applicants' experts worked with small-scale fishers or signed advocacy letters, while respondents' experts were involved in developing the EMP or worked for corporate-aligned entities. Nevertheless, the court found the expert evidence helpful. 2. The court noted that cumulative impacts of seismic surveys have not been studied in South Africa, which is concerning given the proliferation of such activities. 3. The court observed that mitigation measures like Passive Acoustic Monitoring (PAM) and Marine Mammal Observers (MMO) have "shortfalls" and are only partially effective, particularly at night and for species that don't emit detectable sounds. 4. The court commented critically on the timing of Searcher's commencement of the survey during the dies non period (15 December to 15 January), suggesting this was deliberately chosen when people were away and unable to engage: "This period has for years been a window for unscrupulous persons to become highly active." The court invoked the principle "Uzenzile akakhalelwa" (self-inflicted harm deserves no sympathy). 5. The court suggested that commercial fishers (I&J and SADSTIA) may have been misled by SLR/Searcher about whether a separate environmental authorization would be obtained, as SLR told them one would be sought but Searcher's legal position in the litigation was that none was required. 6. The court observed that proper consultation, joint expert reports, and appointment of referees where experts differ would enrich environmental decision-making processes. 7. The court noted the broader public interest in the matter, extending beyond the applicants to include the commercial fishing industry and the Western Cape Provincial Government (which also lodged an internal appeal). 8. The court made observations about the cultural and historical significance of fishing to West Coast communities, including the Khoi and San peoples and later Malay communities, and the tradition of fish curry during Easter. 9. The court commented that some academic experts appeared to be "pursuing an agenda that amounts to elevating themselves to an alternative monopolistic policy power house if not some parallel government for fauna and flora in South Africa," though it acknowledged they argued for surveys to be allowed if proper environmental processes were followed.
This case is significant for establishing robust standards for consultation with affected communities, particularly small-scale fishers and indigenous peoples, in environmental and mining/petroleum licensing processes. It affirms that consultation under section 74(4)(a) of the MPRDA must be meaningful and inclusive, not merely formal compliance. The judgment recognizes the socio-economic and cultural importance of small-scale fishing to impoverished and indigenous communities on South Africa's West Coast, and their constitutional rights to equality, food security, livelihood and culture. It applies the prohibition on regressive measures regarding the right to food under section 27 of the Constitution. The case demonstrates judicial willingness to halt commercial activities where proper environmental processes were not followed, especially where constitutional rights of vulnerable communities are at stake. It emphasizes the precautionary principle in environmental law where scientific uncertainty exists about harm to marine ecosystems. The judgment also clarifies that commercial interests cannot outweigh constitutional rights in the balance of convenience analysis. It is an important precedent for environmental justice, indigenous rights, and procedural fairness in South Africa's extractive industries.