A momentous victory was recorded today for the Amadiba, Dwesa-Cwebe, Port St Johns and Kei Mouth communities in South Africa who secured an interdict against the multinational oil company, Shell. The Interdict prevents Shell from continuing to conduct a seismic survey along the Wild Coast of South Africa. The decision is ground-breaking because the court ruled that Shell’s exploration right, which was awarded on the basis of a substantially flawed consultation process, was unlawful and invalid.

The court recognised that not only did the communities face a threat to their livelihoods as small-scale fishers, because of the survey’s potential harm to marine life, but that the communities hold a special spiritual and cultural connection to the ocean.  This connection cannot be ignored for purposes of commodification of the ocean.

Shell had claimed that if the case went against it, it might cancel the entire operation, losing the chance to extract millions of dollars’ worth of oil and gas. We have heard the same economic bullying here in Cape Town threatening opponents of the River Club re-development.

Well, Tembeka Ngcukaitobi, SC, counsel for the Wild Coast communities and supporting NGOs, argued that Shell had failed completely to consult with the affected communities, despite the devastating impact that the seismic blasting will have. He argued that when constitutional rights are at issue, “the balance of convenience favours the applicants. There is no amount of money that can offset the loss of constitutional rights”.

Advocate Ngcukaitobi also pointed to the bias on the part of the Minister, referring to the regulator as “sleeping in the same bed as Shell. Instead of regulating them, he has taken their side”. 

Shell’s counsel claimed that there was no evidence of harm to marine life, that communities’ objections are “speculative”, and claims of cultural and spiritual harm merely “subjective”.

It’s the same script playing out at the River Club where the developer disputes the spiritual importance of the site (it’s not sacred says James Tannenberg, spokesperson for the developers), denies the loss of open space (judging the acknowledged "visually intrusive new built structures" to be simply a matter of "receptor perceptions”) and ignores all valid concerns expressed by environmental specialists in the City for the impact of the development on Climate resilience, flooding and biodiversity management. Also, we see evidence reported in the final directive of the Heritage Appeal Tribunal for provisional heritage protection of the River Club of the authorities allying themselves with the developer in opposing heritage protection, when they should have aligned their “scarce resources, experience, skills and expertise to cooperatively solve complicated heritage issues cooperatively, internally, and in good faith.”

However, the fact is that the South African justice system has seen through the smoke and mirrors put forward by Shell and has affirmed the rights of indigenous peoples and local communities. As stated by Sinegugu Zukulu of Sustaining the Wild Coast (SWC), “The voices of the voiceless have been heard. The voices of the directly affected people have at last been heard, and the constitutional rights of indigenous people have been upheld. This case reminds us that constitutional rights belong to the people and not to government, and that the only way that we can assure that the rights of indigenous people are living – and not just written on paper – is if we challenge government decisions that disregard these rights. This victory is hugely significant because we have made sure that the rights of indigenous communities are kept alive.”

And Wilmien Wicomb of the Legal Resources Centre summed up the legal significance: “The case has huge significance in that it shows that no matter how big a company is, it ignores local communities at its peril. This case is really a culmination of the struggle of communities along the Wild Coast for the recognition of their customary rights to land and fishing, and to respect for their customary processes. The Amadiba and Dwesa-Cwebe communities fought for such recognition in earlier cases, and the Makhanda High Court reminded the state and Shell today, once again, that the indigenous rights of communities are protected by the Constitution from interference, no matter how powerful the intruders are.”

We are talking from the same script here in Cape Town. Powerful intruders cannot get away with overriding human rights. Shell is a transnational corporation that is worth US$170 billion. That’s a big multinational with a lot of money and influence. But Amazon is 10 times the size of Shell (it measures its assets in terms of trillions of US$s). So, we are not just up against a big corporation, it is one of the biggest, a corporate behemoth of the same ilk as the Dutch East India Company was in its era when it colonised the Cape.

We are in court on the 19th to 21st January 2022 to challenge the decisions that allowed this redevelopment of the River Club to proceed. We need your financial support to pursue this court challenge. Please consider assisting us with the legal fees. You can contribute at our fundraising site.

You can also visit our website and follow the Liesbeek Action Campaign on twitter: @LiesbeekAction.

Now is the time to Make the Liesbeek Matter!