IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case no: 5676/2024

In the matter between:

THE GREEN CONNECTION NPC First Applicant

NATURAL JUSTICE Second Applicant

and

MINISTER OF FORESTRY, FISHERIES AND THE First Respondent

ENVIRONMENT

MINISTER OF MINERAL RESOURCES AND ENERGY Second Respondent

DIRECTOR GENERAL: DEPARTMENT OF MINERAL Third Respondent

RESOURCES AND ENERGY

TOTAL ENERGIES EP SOUTH AFRICA BLOCK 567 Fourth Respondent

(PTY) LTD

APPLICANTS’ HEADS OF ARGUMENT

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TABLE OF CONTENTS
INTRODUCTION ................................................................................................................ 5
THE CLIMATE CRISIS .......................................................................................................... 9
THE DECISIONS UNDER REVIEW AND THE PROPOSED PROJECT ........................................ 10
THE LEGAL FRAMEWORK ................................................................................................ 12
Fundamental principles of environmental law ........................................................................ 12
The environmental impact assessment process....................................................................... 13
The LEGAL BASIS FOR THE REVIEW GROUNDS ................................................................. 14
The prescribed content of the environmental impact assessment ........................................... 15
The consequence of an inadequate environmental impact assessment ................................... 18
THE RISK OF AN OIL SPILL ................................................................................................ 19
1st GROUND: FAILURE TO CONSIDER SOCIO-ECONOMIC IMPACTS .................................... 22
The State’s response .............................................................................................................. 25
Total’s response ..................................................................................................................... 25
Conclusion regarding the 1st review ground ............................................................................ 27
2ND REVIEW GROUND: THE FAILURE TO CONSIDER THE ICMA FACTORS ........................... 28
An overview of ICMA ............................................................................................................. 28
ICMA and the Proposed Project .............................................................................................. 32
The DG’s failure to consider the ICMA Factors......................................................................... 32
The Minister’s Decision .......................................................................................................... 33
Total’s Response .................................................................................................................... 35
The State’s response .............................................................................................................. 38
Conclusion regarding the second review ground ..................................................................... 39
3RD REVIEW GROUND: THE FAILURE TO CONSIDER CLIMATE CHANGE AS PART OF NEED
AND DESIRABLITY ........................................................................................................... 39
The obligation to consider need and desirability ..................................................................... 40
The deficient consideration of need and desirability ............................................................... 41
4TH REVIEW GROUND: FAILURE TO ASSESS TRANSBOUNDARY IMPACTS .......................... 46
The predicted transboundary impacts .................................................................................... 47
The obligation to assess transboundary impacts ..................................................................... 48
NEMA itself requires the assessment of transboundary impacts ...................Error! Bookmark not defined.
International obligations and the interpretation of NEMA ......................................................................... 52
Subsidiarity is not relevant ..................................................................................................... 57
Conclusion on the fourth review ground ................................................................................. 59
5TH REVIEW GROUND: BLOW OUT AND OIL SPILL CONTINGENCY PLANS .................................. 59
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No public participation regarding the OSCP and BOCP ............................................................. 62

The OSCP and BOCP ought to have been part of the EMPR ...................................................... 63
The defences regarding public participation. ........................................................................... 64
The defences relating to practicality ....................................................................................... 65
Conclusion on the fifth review ground .................................................................................... 66
6TH REVIEW GROUND: THE INVOLVEMENT OF PASA ........................................................ 66
THE RELIEF SOUGHT........................................................................................................ 69
COSTS............................................................................................................................. 72
CONCLUSION .................................................................................................................. 73
INTRODUCTION .............................................................................................................. 5fi
THE CLIMATE CRISIS .......................................................................................................... 9
THE DECISIONS UNDER REVIEW AND THE PROPOSED PROJECT ........................................ 10
THE LEGAL FRAMEWORK ................................................................................................ 12
Fundamental principles of environmental law ........................................................................ 12
The environmental impact assessment process....................................................................... 13
The LEGAL BASIS FOR THE REVIEW GROUNDS ................................................................. 14
The prescribed content of the environmental impact assessment ........................................... 15
The consequence of an inadequate environmental impact assessment ................................... 18
THE RISK OF AN OIL SPILL ................................................................................................ 19
1st GROUND: FAILURE TO CONSIDER SOCIO-ECONOMIC IMPACTS .................................... 22
The State’s response .............................................................................................................. 25
Total’s response ..................................................................................................................... 25
Conclusion regarding the 1st review ground ............................................................................ 27
2ND REVIEW GROUND: THE FAILURE TO CONSIDER THE ICMA FACTORS ........................... 28
An overview of ICMA ............................................................................................................. 28
ICMA and the Proposed Project .............................................................................................. 32
The DG’s failure to consider the ICMA Factors......................................................................... 32
The Minister’s Decision .......................................................................................................... 33
Total’s Response .................................................................................................................... 35
The State’s response .............................................................................................................. 38
Conclusion regarding the second review ground ..................................................................... 39
3RD REVIEW GROUND: THE FAILURE TO CONSIDER CLIMATE CHANGE AS PART OF NEED
AND DESIRABLITY ........................................................................................................... 39
The obligation to consider need and desirability ..................................................................... 40
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The deficient consideration of need and desirability ............................................................... 41

4TH REVIEW GROUND: FAILURE TO ASSESS TRANSBOUNDARY IMPACTS .......................... 46
The predicted transboundary impacts .................................................................................... 47
The obligation to assess transboundary impacts ..................................................................... 48
NEMA itself requires the assessment of transboundary impacts ...................Error! Bookmark not defined.
International obligations and the interpretation of NEMA ......................................................................... 52
Subsidiarity is not relevant ..................................................................................................... 57
Conclusion on the fourth review ground ................................................................................. 59
5TH REVIEW GROUND: BLOW OUT AND OIL SPILL CONTINGENCY PLANS .................................. 59
No public participation regarding the OSCP and BOCP ............................................................. 62
The OSCP and BOCP ought to have been part of the EMPR ...................................................... 63
The defences regarding public participation. ........................................................................... 64
The defences relating to practicality ....................................................................................... 65
Conclusion on the fifth review ground .................................................................................... 66
6TH REVIEW GROUND: THE INVOLVEMENT OF PASA ........................................................ 66
THE RELIEF SOUGHT........................................................................................................ 69
COSTS............................................................................................................................. 72
CONCLUSION .................................................................................................................. 73
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INTRODUCTION

1. This is an application to review and set aside an environmental authorisation

(“the EA”) granted to Total Energies, the Fourth Respondent (“Total”) by the

First and Third respondents (“the State Respondents”).1 The environmental

authorisation permits Total to conduct exploratory drilling for fossil fuels off the

South West coast of South Africa (“the Proposed Project”).2

2. The Applicants are public interest organisations,3 who participated in the

process which led to the granting of the EA.

3. The EA was granted on the strength of an environmental impact assessment

report (“the Final EIR”) prepared on behalf of Total. The bulk of the Applicants’

review grounds are premised on the fact that the Final EIR failed to meet the

standards imposed by the National Environment Management4 (“NEMA”) and

the National Environmental Management: Integrated Coastal Management

Act (“ICMA”).5

4. Specifically, the Applicants contend that the decisions to grant the EA were

unlawful and irrational in six respects.

4.1. First, that the Final EIR failed to properly assess, and State

Respondents failed to consider, the socio-economic impact of the

Proposed Project because it does not assess the socio-economic

1 Amended Notice of Motion p. 5.

2 Founding Affidavit (“FA”) p. 16 para. 23.
3 FA p. 14 para. 18
4 Act 107 of 1998.
5 Act 24 of 2008.
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impacts which a well blowout and consequent oil spill will have on the

fishing industry and small-scale fishers.6

4.2. Second, the State Respondents failed to consider the factors

prescribed by ICMA.7 Third, the State Respondents 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.8

4.3. Fourth, the State Respondents failed to assess and consider the

transboundary impacts of the Proposed Project both on Namibia and

on international waters,9

4.4. Fifth, neither the Final EIR nor the EMPR include Total’s Oil Spill

Contingency Plan (“OSPC”) or Blow Out Contingency Plan

(“BOCP”).10

4.5. Sixth, the Petroleum Agency of South Africa (“PASA”) impermissibly

delivered an appeal response report which, at face value, was

submitted on behalf of the Second Respondent.11

5. We will refer to these six deficiencies as the First to Sixth Review Grounds.

6 FA p. 40 para. 81.
7 FA p. 45 para. 96.
8 FA p. 54 para. 120.
9 FA p. 57 para. 129.
10 FA p. 69 para. 175.
11 Supplementary Founding Affidavit (“SFA”) p. 1622 para. 8.
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6. In Fuel Retailers, the Constitutional Court accepted that where an

environmental decision maker fails to consider an environmental impact it

ought to have considered, its decisions stand to be reviewed and set aside in

terms of section 6(2)(b) of PAJA, for failure to comply with a mandatory and

material condition.12

7. In a similar vein, this Court in Philippi Horticultural, held that where an

environmental impact assessment omitted relevant information, this restricted

the ability of the decision maker to consider relevant information and resulted

in their decision being subject to review in terms of section 6(2)(b)(iii) and

6(2)(f)(ii) of PAJA.13

8. Accordingly, the Final EIR’s failure to assess the impacts of an oil spill on

fisheries, the factors prescribed by 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 EA

unlawful, irrational and unreasonable. Therefore, those decisions stand to be

reviewed and set aside in terms of PAJA.

9. These heads of argument are structured as follows.

9.1. First, a brief overview of the climate crisis.

12 Fuel Retailers Association of Southern Africa v Director-General Environmental Management,

Department of Agriculture, Conservations and Environment, Mpumalanga Province 2007 (6) SA 4
(CC) para 89.
13 Philippi Horticultural Area Food and Farming Campaign v MEC for Local Government, Western
Cape 2020 (3) SA 486 (WCC), paras. 101 to 103. See also Earthlife Africa Johannesburg v Min of
Environmental Affairs 2017 2 ALL SA 519 (GP) paras 100 to 101
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9.2. Second, a summary of the Decisions under Review and the Proposed

Project

9.3. Third, an outline of the legal basis for the Applicants’ review grounds.

9.4. Fourth, the Applicants’ first to sixth review grounds.

9.5. Fifth, the relief sought.

10. This matter relates not only to environmental law but particularly to the climate

crisis and the consequent impact on the Constitutional right to have the

environment protected for current and future generations.14 Therefore it is

apposite, at the outset, to note the following comment from the Supreme Court

of Appeals in Company Secretary, Arcelormittal South Africa:15

As we continue to reset our environmental sensitivity barometer,

we would do well to have regard to what was said about planet
Earth by Al Gore, a former vice-president of the United States
and an internationally recognised environmental activist
engaged in educating the public about the dangers of global
warming and those steps to be taken in response to reduce
carbon emissions (for which he was a joint recipient of the 2007
Nobel Peace Prize):

‘You see that pale, blue dot? That’s us. Everything that
has ever happened in all of human history, has happened
on that pixel. All the triumphs and all the tragedies, all the
wars, all the famines, all the major advances . . . It’s our
only home. And that is what is at stake, our ability to live
on planet Earth, to have a future as a civilization. I believe
this is a moral issue, it is your time to seize this issue, it
is our time to rise again to secure our future.’

14 Constitution of the Republic of South Africa, section 24(b).

15 Company Secretary, Arcelormittal South Africa v Vaal Environmental Justice Alliance 2015 (1) SA
515 (SCA), para. 84.
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On the importance of developing a greater sensitivity in relation

to the protection and preservation of the environment for future
generations, Gore had the following to say:

‘Future generations may well have occasion to ask

themselves, “What were our parents thinking? Why didn’t
they wake up when they had a chance?” We have to hear
that question from them, now.’

We would, as a country, do well to heed that warning.

THE CLIMATE CRISIS

11. There is no longer any doubt that climate change is caused by human activities

and that global average warming above 1.5°C above pre-industrial levels will

have profoundly harmful effects on humanity and the planet.16

12. The South African government accepts that: climate change is a measurable

reality; South Africa is especially susceptible to climate change; and that

climate change poses a substantial threat to the section 24 environmental right

and other fundamental rights.17

13. In Earthlife Africa, Johannesburg this Court accepted the following explanation

of climate change:18

[…] an on-going trend of changes in the earth’s general weather

conditions as a result of an average rise in the temperature of
the earth’s surface (global warming) due, primarily, to the
increased concentration of greenhouse gases (“GHGs”) in the
atmosphere that are emitted by human activities. These gases
intensify a natural phenomenon called “the greenhouse effect”
by forming an insulating layer in the atmosphere that reduces
the amount of the sun’s heat that radiates back into space and

16 FA p. 31 para. 59; Total AA p. 3016 para. 228; State AA p. 2494 para. 147.
17 FA p. 31 para. 62; Total AA p. 3016 para. 228; State AA p. 2494 para. 147.
18 Earthlife Africa Johannesburg v Min of Environmental Affairs 2017 2 ALL SA 519 (GP), para. 4.
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therefore has the effect of making the earth warmer.

14. It also accepted that climate change poses a substantial risk to sustainable

development in South Africa,19 and there is a wide consensus that urgent

action to limit global warming is necessary and that there is no atmospheric

space left for new fossil fuel emissions.20

15. South Africa is party to a number of international agreements seeking to

combat climate change and has adopted numerous policies which seek to limit

South Africa’s contribution to global warming.21

THE DECISIONS UNDER REVIEW AND THE PROPOSED PROJECT

16. On 17 April 2023, the Director General of the Department of Mineral

Resources and Energy (“the DG”) granted an environmental authorisation

(“the EA”) to Total permitting it to conduct exploratory drilling in “the Project

Area” of the South West coast of South Africa.22

17. The Applicant lodged an internal appeal against this decision. The Minister for

Forestry, Fisheries and the Environment dismissed that appeal.23

18. We refer to these decisions as “the DG’s Decision”, “the Minister’s Decision”

and together as “the Decisions under Review”.

19 Earthlife Africa Johannesburg v Min of Environmental Affairs 2017 2 ALL SA 519 (GP), para. 82.
20 FA p. 31 para. 63; Total AA p. 3016 para. 228; State AA p. 2494 para. 147.
21 FA p. 34 paras 67 et seq; Total AA p. 3016 para. 228; State AA p. 2494 para. 147.
22 FA p. 16 para. 23.
23 FA p. 17 para. 25.
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19. The Proposed Project triggers numerous activities listed in terms of the EIA

Regulations.24 Therefore:

19.1. Total could not commence the Proposed Project without an

environmental authorisation in terms of section 24(2) of NEMA.

19.2. Total was required to conduct an environmental impact assessment

in respect of the Proposed Project.

20. The Proposed Project is an exploratory drilling project which seeks to locate

offshore fossil fuel sources. Total intends to drill up to five exploration wells in

the Project Area.25

21. The Project Area is located between Cape Town and Cape Agulhas, 60km to

170km offshore, and in water depths between 700m and 3200m.26

22. The Project Area is located in South Africa’s exclusive economic zone and in

the Benguela Current Large Marine Eco-System.27

23. The execution of each exploratory well will take approximately 4 months.28

24 Environmental Impact Assessment Regulations 2014 GN R982 GG38282 4 December 2014; FA p.

28 para. 52; First Respondent’s Answering Affidavit (“State AA”) p. 2495; Fourth Respondent’s
Answering Affidavit (“Total AA”) p. 3023 para. 264.
25 FA p. 25 para. 44.
26 FA p. 25 para. 45.
27 FA p. 25 paras. 46 to 47.
28 FA p. 25 para. 48.
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THE LEGAL FRAMEWORK

Fundamental principles of environmental law

24. There are two primary sources of environmental law in South Africa. First, the

fundamental rights provided by section 24 of the Constitution. Second, the

statutory measures which have been enacted to give effect to this right,

including NEMA.

25. Section 24 of the Constitution provides that everyone has the right:

25.1. to an environment which is not harmful to their health and wellbeing;

and,

25.2. to have the environment protected, for the benefit of present and future

generations, through reasonable measures that prevent pollution,

promote conservation, and secure ecologically sustainable

development and use of natural resources while promoting justifiable

economic and social development.

26. NEMA was enacted to give effect to section 24 of the Constitution.29 It fulfils a

number of roles, two of which are relevant to this application.

27. First, NEMA empowers the Minister to identify activities which may not

commence without an environmental authorisation.30 NEMA and the EIA

Regulations go on to set out the process through which such authorisations may

29 Fuel Retailers Association of Southern Africa v Director-General Environmental Management,

Department of Agriculture, Conservations and Environment, Mpumalanga Province 2007 (6) SA 4
(CC) (“Fuel Retailers”), para. 59.
30 NEMA, section 24(2).
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be obtained.

28. Second, section 2 of NEMA sets out a series of environmental management

principles (“the NEMA Principles”) which apply to any actions by the State which

may significantly affect the environment and which guide the interpretation of

NEMA and any other law concerned with the protection of the environment.

29. The Constitutional Court has held that the social, economic and environmental

impacts of proposed developments must be considered, and that decisions

taken must be appropriate in the light of that consideration.31

30. That Court has also noted that the environment is necessary to support

economic development and, accordingly, it is necessary to protect and nurture

the environment so that it may support future economic development. 32

The environmental impact assessment process

31. Section 24 of NEMA provides that the potential environmental impacts of a listed

activity must be assessed. This is necessary to enable the decision maker to

decide whether or not to authorise the undertaking of such activities, and to

select the best practicable environmental option.33

32. The manner in which environmental impact assessments must be conducted,

are regulated, principally, by sections 24(4) and 24O of NEMA and the EIA

Regulations.

33. These assessments must be conducted by environmental assessment

31 Fuel Retailers 2007 (6) SA 4 (CC), para. 60.

32 Fuel Retailers 2007 (6) SA 4 (CC), para. 58.
33 NEMA, section 2(4)(b).
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practitioners, who are required to be independent.34

34. The provisions of those sections which are most directly applicable to this

application are addressed below where they become relevant.

THE LEGAL BASIS FOR THE REVIEW GROUNDS

35. The Applicants rely on six review grounds. These are:

35.1. First, that the Final EIR failed to properly assess, and the State

Respondents failed to properly consider, the socio-economic impact

of the Proposed Project because it does not assess the socio-

economic impacts which a well blowout and consequent oil spill will

have on the fishing industry and small scale fishers.35

35.2. Second, that the Decision Makers failed to consider the factors

prescribed by ICMA.36

35.3. Third, that the Final EIR failed to assess, and the State Respondents

failed properly to consider, the need and desirability of the Proposed

Project because no consideration was given to the climate change

impacts which will be caused by burning any gas discovered by the

Proposed Project.

35.4. Fourth, the Final EIR failed to assess, and the State Respondents

failed to consider, the transboundary impacts of the Proposed Project

34 EIA Regulations, Regulations 12 and 13 (1)(a).

35 FA p. 40 para. 81.
36 FA p. 45 para. 96.
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both on Namibia and on international waters.37Fifth, neither the Final

EIR not the EMPR include Total’s Oil Spill Contingency Plan or Blow

Out Contingency Plan.38

35.5. Sixth, the Petroleum Agency of South Africa delivered an appeal

response report which, at face value, was submitted on behalf of the

Second Respondent and treated as such by the Minister.39

36. The First to Fifth Review Ground relate to the Final EIR’s failure to consider

aspects of the Proposed Project which it was required to. In this section we

set out:

36.1. the prescribed requirements for an environmental impact assessment;

and,

36.2. the basis on which a failure to meet those requirements renders any

decisions based on a deficient assessment subject to review.

37. In the following sections we specifically address each of the review grounds.

The prescribed content of the environmental impact assessment

38. Section 24(4)(a)(iv) of NEMA provides that the procedures for the investigation

and assessment of the potential consequences or impacts of activities on the

environment must ensure the “investigation of the potential consequences for

37 FA p. 57 para. 129.
38 FA p. 69 para. 175.
39 Supplementary Founding Affidavit (“SFA”) p. 1622 para. 8.
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or impacts on the environment of the activity and the assessment of the

significance of those potential consequences or impacts”.

39. Section 24O(1) of NEMA provides that when an application for an

environmental authorisation is considered, the decision maker must take into

account all relevant factors including:

39.1. any environmental impacts likely to be caused if the application is

approved or refused;40

39.2. measures which may be taken to mitigate the detrimental

environmental impacts; and,.41

39.3. the ability of the applicant to implement mitigation measures.42

40. Appendix 3 to the EIA Regulations prescribes that the scope of an EIA must

include the following.

40.1. A motivation for the need and desirability of the project.43

40.2. A full description of the impacts and risks identified including the

nature, significance, extent, duration and probability of the impacts.44

40 Section 24O(1)(b)(i).
41 Section 24O(1)(ii)(bb).
42 Section 24O(1)(iii).
43 EIA Regulations Appendix 3 item 3(1)(f).
44 EIA Regulations Appendix 3 item 3(1)(h)(v).
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40.3. A full description of the degree to which these impacts: can be

reversed; may cause irreplaceable loss of resources; can be avoided,

managed or mitigated.45

40.4. A full description of the methodology used in determining and ranking

the nature, significance, consequences, extent, duration and

probability of the of the potential environmental impacts and risks.46

40.5. A full description of the possible mitigation measures that could be

applied and the level of residual risk.47

40.6. An assessment of each identified potentially significant impact and

risk, including:48

40.6.1. cumulative impacts;

40.6.2. the nature, significance and consequences of the impact and

risk;

40.6.3. the extent and duration of the impact and risk;

40.6.4. the probability of the impact and risk occurring;

40.6.5. the degree to which the impact and risk can be reversed;

40.6.6. the degree to which the impact and risk may cause

irreplaceable loss of resources; and

45 EIA Regulations Appendix 3 item 3(1)(h)(v)(aa) to (cc).

46 EIA Regulations Appendix 3 item 3(1)(h)(vi)
47 EIA Regulations Appendix 3 item 3(1)(h)(viii).
48 EIA Regulations Appendix 3 item 3(1)(h)(v)(aa) to (cc).
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40.6.7. the degree to which the impact and risk can be mitigated.

The consequence of an inadequate environmental impact assessment

41. The failure to include an assessment of all the relevant information

fundamentally compromises the decisions taken on the strength of that

assessment, because the decision makers cannot strike the required

equilibrium. This makes it impossible for the decision makers to take decisions

which are lawful, rational and reasonable.49

42. In Fuel Retailers the Constitutional Court accepted that where an environmental

decision maker misconstrues what NEMA requires and, therefore, fails to

consider an environmental impact it ought to have considered, its decisions

stand to be reviewed and set aside in terms of section 6(2)(b) of PAJA for failure

to comply with a mandatory and material condition.50

43. Where an environmental impact assessment fails to address relevant

information, any decisions to grant an authorisation on the strength of that

assessment:

43.1. contravene sections 24O(1)(a) and (b) of NEMA;

43.2. contravene regulation 10(c) of the EIA Regulations and item 3 of

Appendix 3 to the EIA Regulations;

49 Earthlife Africa Johannesburg v Min of Environmental Affairs 2017 2 ALL SA 519 (GP), paras. 100
to 101. See also Philippi Horticultural Area Food and Farming Campaign v MEC for Local
Government, Western Cape 2020 (3) SA 486 (WCC), paras. 101 to 103
50 Fuel Retailers 2007 (6) SA 4 (CC), para. 89.
 Page 19 of 74

43.3. fail to take into account relevant considerations;51 and

43.4. are not rationally connected to the information before the decision

maker.52

44. Therefore, any such decision will stand to be reviewed and set aside in terms

of sections 6(2)(b), 6(2)(e)(iii) and 6(2)(f)(ii)(cc) of PAJA. The First to Fifth

Review Grounds establish fundamental deficiencies in the assessment of the

environmental impacts of the oil and gas exploration activities. Therefore, the

decisions stand to be reviewed on this basis.

THE RISK OF AN OIL SPILL

45. The Final EIR accepts that the Proposed Project carries an inherent risk of a

well blowout and consequent oil spill. Its introduction to the assessment of this

risk reads as follows:53

Offshore drilling operations carry an inherent risk of oil entering

the marine environment as a consequence of an unplanned oil
spill event. The greatest environmental threat from offshore
drilling operations, although unlikely, is the risk of a major spill
of crude oil/condensate occurring from a well-blow. A blow-out
is the uncontrolled release of crude oil and/or natural gas from a
well after pressure control systems have failed. This section
considers the potential impacts of an unlikely well-blow out,
based on the finding of the Oil Spill Modelling reports (see
Appendix 7 in Volume 2). The Oil Spill modelling considered two
theoretical well sites, at locations closest to the coast and the
sensitivity areas (making them worst case) at two different

51 Earthlife Africa Johannesburg v Min of Environmental Affairs 2017 2 ALL SA 519 (GP), paras. 100
to 101; Philippi Horticultural Area Food and Farming Campaign v MEC for Local Government,
Western Cape 2020 (3) SA 486 (WCC), paras. 101 to 103.
52 Earthlife Africa Johannesburg v Min of Environmental Affairs 2017 2 ALL SA 519 (GP), para. 101;
Philippi Horticultural Area Food and Farming Campaign v MEC for Local Government, Western
Cape 2020 (3) SA 486 (WCC), paras. 101 to 103.
53 Final EIR, First Record item 9.1 p. 5159.
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depths. The oil spill modelling was subject to peer review by

PRDW (see Appendix 9 in Volume 2).

46. In considering the impact of a well blowout on marine life the Final EIR records:

While the probability of a major spill is extremely small, the

impact nonetheless needs to be considered as it would have
devastating effects on the marine environment.54

47. The potential environmental risks associated with a well blow out and

consequent oil spill are directly relevant to the First, Fourth and Fifth review

grounds.

48. Total’s answering affidavit contends that an oil spill is a “risk” rather than an

“anticipated project impact which is more typically assessed in an ESIA”55

49. This argument does not excuse Total’s failure to properly assess the potential

impacts of an oil spill for two reasons.

50. First, the Final EIR did not distinguish between “risks” and “anticipated project

impacts”. Rather it distinguished between an impact assessment for “normal

operations”56 and an impact assessment for “unplanned events”,57 both of

which it saw necessary to assess. The Final EIR also clearly records that

although the risk of a blowout was small, the devasting nature of its impact

required it to be assessed.58

54 Final EIR, Record Item 9.1 p. 5179.

55 Total AA p. 2946 para. 32.1.
56 Final EIR, Record Item 9.1 p. 5019.
57 Final EIR, Record Item 9.1 p. 5145.
58 Final EIR, Record Item 9.1 p. 5179.
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51. Accordingly, the Final EIR clearly did consider the consequences of well

blowout and oil spill to be a species of impact which it was required to assess.

Given the Final EIR’s acceptance that a major oil spill is the greatest

environmental threat from offshore drilling, any other position would be

absurd.

52. Second, the EIA Regulations do not distinguish between risks and impacts or

between likely and unlikely risks.

53. As set out above, Appendix 3 to the EIA Regulations provides that an

environmental impact assessment must include an assessment of “each

identified potentially significant impact and risk” including:59

53.1. the cumulative impact;

53.2. the nature, significance, and consequence of the impact and risk;

53.3. the extent and duration of the risk;

53.4. the probability of the impact and risk occurring;

53.5. the degree to which the impact and risk can be reversed;

53.6. the degree to which the impact and risk may cause irreplaceable

resources; and

53.7. the degree to which the impact and risk can be mitigated.

59 EIA Regulations Appendix 3 Item 3(1)(j).

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54. This is dispositive of Total’s argument for two reasons.

54.1. Firstly, the EIA regulations clearly apply to risks and impacts.

54.2. Secondly, the seven sub clauses of item 3(1)(h) of Appendix 3 are

joined by the conjunctive “and” indicating that each factor must be

considered.60 Thus, the Final EIR was required to consider each of

the factors listed in item 3(1)(h).

54.3. Accordingly, once the Final EIR identified the potential blow out and

oil spill as a potentially significant impact or risk, it was obliged to

assess the consequences and the probability of the impact or risk. As

such, a low degree of probability does not excuse a failure to properly

assess the consequences of a blow out or oil spill. This includes the

consequences of an oil spill on fisheries (including small scale fishers

and dependent communities) and the transboundary impacts of the oil

spill.

1ST GROUND: FAILURE TO CONSIDER SOCIO-ECONOMIC IMPACTS

55. The Applicant’s first review ground relates to the Final EIR’s failure to properly

assess the potential socio-economic impacts of the Proposed Project.61

60 Ncobo v Salimba CC 1999 (2) SA 1057 (SCA), para. 11.

61 FA p. 40 para. 81.
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56. As set out above, the Final EIR identifies the risk of a blowout and oil spill as

the greatest environment threat from offshore drilling. It then notes the

following in relation to the impacts of an oil spill.62

56.1. Large scale effects on fishing operations would include the exclusion

of fisheries from areas that may be polluted by oil or the chemicals

used to clean oil spills.

56.2. Based on the extent of a large-scale blowout, the operations of most

commercial fisheries would be affected on a regional to international

scale.

56.3. The potential impact on fisheries is rated as “very high” before

mitigation and “high” after mitigation.63

57. We note that the Fisheries Report also identifies that small scale fisheries

would be directly affected by an oil spill – as does Total itself.64

58. Despite this, the Final EIR does not assess the socio-economic consequences

of such a spill. The Final EIR’s inquiry into these consequences is

encapsulated by following paragraphs:65

Reduction in recreational, small-scale, and commercial fishing

in the impacted area, including near-shore and offshore fishing.
This may result in undermining fishing by the public at large.

Large scale effects on fishing operations would also be likely to

include area closures and exclusion of fisheries from areas that
62 FA p. 41 paras. 83 to 84.
63 FA p. 41 para. 84.
64 RA p. 7, para 24
65 FA p. 43 para. 90.
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may be polluted or closed to fishing due to contamination of

surface waters by oil or the chemicals used for cleaning oil spills.
Based on the possible extent of surface oiling (including major
fish spawning and nursery areas), the intensity of the impact on
most commercial fisheries would be high. As an indicator,
assuming a 10% drop in value of fisheries, sustained over a full
three years, the revenue lost would be about R600m a year. The
percentage drop is however difficult to estimate.

Reduction in income for secondary and tertiary sectors that

support tourism, recreational, fishing and other coastal
economies.

Reduction in income and livelihoods impacts on those

dependent on small scale fisheries.

59. This is a wholly inadequate assessment of the socio-economic consequences

of an oil spill as:

59.1. it does not assess the impact on local communities or small-scale

fisheries (“SSFs”) despite the fact that they play a crucial role in

sustaining communities and that any disruption of these fisheries

could have devastating consequences for fishers and dependent

communities;66 and,

59.2. it does not attempt to quantify the consequences of the potential

impacts. Rather, it simply postulates an assumed figure of a drop of

10% in the value of fisheries for three years. This is deficient in two

respects. First, no basis is provided for this figure. Second, there is no

assessment of the consequences which such a reduction would have

on small scale fishers, fishing operators or local communities.

66 Replying affidavit, p. 3145, para. 27

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The State’s response

60. The State’s response is, essentially, that Total has allocated financial

resources to compensate the fisheries sector.67

61. NEMA and Appendix 3 to the EIA Regulation clearly required the Final EIR to

assess the potential consequences of an oil spill caused by the Proposed

Project. Even if Total has allocated financial resources to compensate

fisheries for an oil spill, this does not excuse a failure to conduct a legally

compliant risk assessment.

Total’s response

62. Total’s response to the first review ground is, essentially, the following.

62.1. The Final EIR does not assume that there will be a 10% drop in value.

Rather this figure is an indicator “intended to provide an idea of the

relative magnitudes involved”.68

62.2. The actual impacts are likely to be far lower as the only major fisheries

likely to experience serious impacts are the West Coast rock lobster

fishery and the small pelagic fishery on the West Coast, and these

currently produce relatively little output.69

62.3. An oil spill would present a shock to the environment akin to some

naturally occurring phenomena such as heat waves and red tides.70

67 State Respondent’s AA p. 2486 para. 117.

68 Total AA p. 2957 para. 55.
69 Total AA p. 2957 para. 55, p. 2958 para. 58.3, p. 2960 para. 65.
70 Total AA p. 2959 para. 60.
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63. These contentions have no merit.

64. Firstly, there is no legal basis to excuse an inadequate assessment on the

basis that natural phenomena may have a similar effect. Where a proposed

project will have an effect on the environment, the law requires that those

effects be assessed.

65. Secondly, there is no factual basis to Total’s contention that an oil spill would

only affect low production fisheries.

66. The contention that an oil spill would any only affect fisheries which have

relatively little output is directly contradicted by the Fisheries Impact

Assessment Report (“the Fisheries Report”). Total’s reference to the “small

pelagic fishery” is a reference to the “small pelagic purse-seine fishery”. Total

accepts that this fishery would be directly affected by a spill.71

67. However, there is no basis to argue that the small pelagic fishery produces

relatively little output. The Fisheries Report records that:

67.1. This is the largest South African fishery by volume and the second

most important in terms of economic value,72 accounting for 22% of

the total value of South Africa’s offshore fishery and 59% of the total

catch.73

71 Total AA p. 2958 para. 58.2.

72 Replying Affidavit (“RA”) p. 3142 para. 24.3.1.
73 RA p. 3142 para. 24.2
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67.2. The wholesale catch value for this fishery (for 2017) was R 2.164

billion.74

67.3. The abundance and distribution of this fishery fluctuates but fish are

primarily targeted along the South and West Coasts of the Western

Cape and the Eastern Cape.75

68. As such, there is no basis to the contention that an oil spill caused by the

Proposed Project would only affect fisheries which produce relatively little

output. Accordingly, there is no basis for its argument that the assumed 10%

loss of value would clearly be higher than the actual impact of such an oil spill.

Conclusion regarding the 1st review ground

69. Therefore, the Final EIR failed to properly assess the socio-economic impacts

which an oil spill caused by the Proposed Project would have on the relevant

fisheries or on small scale fishers and dependent communities. The Final EIR

relies on an assumed figure of 10% loss of value but does not provide a basis

for that figure and there is no basis to assume that the figure is clearly higher

the likely impact. Furthermore, the socio-economic impacts which an oil spill

would have on vulnerable small-scale fishers and dependent communities are

complex and cannot be quantified by way of a percentage reduction in the

market value of total fish catches.

74 RA p. 3143 para. 24.3.2.

75 RA p. 3143 para. 24.3.3.
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70. Accordingly, the Final EIR did not comply with the requirements of sections

24(4) and 24O of NEMA or Appendix 3 to the EIA Regulations.

71. Therefore, the Decisions under Review stand to be reviewed and set aside in

terms of sections 6(2)(b), 6(2)(e)(iii) and 6(2)(f)(ii)(cc) of PAJA.

2ND REVIEW GROUND: THE FAILURE TO CONSIDER THE ICMA FACTORS

72. The Applicants’ second review ground is that the Final EIR failed to consider

the mandatory considerations prescribed by ICMA. We address this review

ground as follows:

72.1. First, we provide an overview of ICMA and the relevant mandatory

considerations.

72.2. Second, we identify the ICMA Factors relevant to Proposed Project.

72.3. Third, we address the failure of the State Respondents to consider the

mandatory considerations.

72.4. Fourth, we address the defences raised by the respondents.

An overview of ICMA

73. The National Environmental Management: Integrated Coastal Management

Act (“ICMA”),76 is one of the specific environmental management Acts

contemplated by NEMA.77 It was enacted to:78

76 24 of 2008
77 NEMA section 1 “specific environmental management Act”; ICMA section 5(2).
78 ICMA, section 2.
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73.1. provide for the co-ordinated and integrated management of South

Africa’s coastal zone.

73.2. preserve, protect, extend and enhance the status of coastal public

property as being held in trust by the State on behalf of all South

Africans including future generations.

73.3. secure equitable access to the opportunities and benefits of coastal

public property.

73.4. to provide for the establishment, use and management of the coastal

protection zone.

73.5. to give effect to the Republic’s obligations in terms international law

regarding coastal management and the marine environment.

74. ICMA provides that coastal public property includes South Africa’s coastal

waters,79 which is defined as including South Africa’s territorial waters and

South Africa’s exclusive economic zone.80

75. The Proposed Project is planned to take place within South Africa’s exclusive

economic zone,81 and therefore falls within coastal public property and is

subject to ICMA.

76. ICMA obliges the State to:

79 ICMA section 7(1)(a).

80 ICMA section 1 “coastal waters”.
81 FA p. 46 para. 98; Total AA p. 2965 para. 84.
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76.1. ensure that coastal public property is used, managed, protected,

conserved and enhanced in the interest of the whole community.82

76.2. take reasonable legislative and other measures necessary to protect

coastal public property for the benefit of present and future

generations.83

76.3. control and manage activities in coastal waters in the interests of the

whole community and in accordance with South Africa’s obligations

under international law.84

77. Consideration of the interests of the whole community is a concept unique to

ICMA. It is defined as meaning the collective interests of the community

determined by:85

77.1. prioritising the collective interests in coastal public property of all

persons living in South Africa of the interests of any particular group;

77.2. adopting a long-term perspective the takes into account the interests

of future generations in inheriting coastal public property

characterised by healthy and productive ecosystems and economic

activities that are ecologically and socially sustainable; and

77.3. taking into account the interests of other living organisms that are

dependent on the coastal environment.

82 ICMA section 12.

83 ICMA section 12.
84 ICMA section 21.
85 ICAM section 1 “interest of the whole community”.
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78. Section 63 of ICMA prescribes certain factors which must be taken into

account when a competent authority considers granting an environmental

authorisation for coastal activities. These include:

78.1. whether coastal public property will be affected and, if so, the extent

to which the proposed development is consistent with the purpose of

protecting that property;86

78.2. if an activity affects coastal public property then whether it is

inconsistent with the objective of conserving coastal public property

for the benefit of current and future generations;87

78.3. whether the activity would be contrary to the interests of the whole

community;88 and

78.4. the objects of ICMA.89

79. In Sustaining the Wild Coast the Makhanda High Court held that a failure to

consider ICMA renders the decisions at issue reviewable.90

86 ICAM section 63(1)(c).

87 ICMA section 63(1)(h)(i).
88 ICMA section 63(1)(h)(vii).
89 ICMA section 63(1)(k).
90 Sustaining the Wild Coast NPC v Minister of Mineral Resources 2022 (6) SA 589 (ECMk), para. 130.
This finding was not disturbed on appeal, see Minister of Mineral Resources and Energy v Sustaining
the Wild Coast NPC 2024 (5) SA 38 (SCA), para. 25.
 Page 32 of 74

ICMA and the Proposed Project

80. As the Proposed Project is subject to ICMA, the Decision Makers were

required to consider (amongst other requirements) the following ICMA

Factors.

80.1. Whether the Proposed Project would affect coastal public property.

80.2. Whether the Proposed Project is consistent with the object of

conserving and enhancing coastal public property for the benefit of

current and future generations.

80.3. Whether the Proposed Project is contrary to the interests of the whole

community.

(“the ICMA Factors”)

The DG’s failure to consider the ICMA Factors.

81. The DG’s Decision does not consider the ICMA Factors.91 The DG’s Decision:

81.1. lists the information considered. While this is not a closed list, it does

not mention ICMA.92

81.2. lists the key findings made. None of these relate to ICMA or the ICMA

Factors.93

91 FA p. 50 para. 106. This finding was not disturbed on appeal, see Minister of Mineral Resources and
Energy v Sustaining the Wild Coast NPC 2024 (5) SA 38 (SCA), para. 25.
92 FA Annexure FA 4 p. 110.
93 FA Annexure FA 4 p. 111.
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82. Accordingly, the DG’s Decision completely failed to consider the ICMA

Factors.

83. Therefore the DG Decision stands to be reviewed and set aside in terms of

sections 6(2)(b), 6(2)(e)(iii) and 6(2)(f)(ii)(cc) of PAJA.

The Minister’s Decision

84. While the Minister’s Decision purports to be a decision on appeal in the wide

sense,94 when it is read as a whole it is clearly structured as a response to the

appeal grounds raised by the various appellants.

85. The failure to consider ICMA was raised before the Minister.95 The Minister

dismissed this issue in a single paragraph which reads:96

Having considered the grounds of appeal and the responses

thereto, I determine that the grant of the EA read together with
the general and specific conditions and the identification of the
potential impacts and mitigation measure of the project, the
authorisation was rational and reasonable and that the
provisions of the ICMA and section 63 were considered. In any
event, I have considered in the appeal and I am of the view that
the authorisation is rational and reasonable.

86. The Minister’s Decision in this regard is woefully deficient in a number of ways.

87. Firstly, the Minister’s Decision does not identify any portions of the DG’s

Decision which considered the ICMA Factors. It could not do so because the

DG’s Decision failed to consider the ICMA Factors at all.

94 FA Annexure FA 6 p. 165 para. 1.18.

95 FA Annexure FA 6 p. 292 para. 2.77.2.
96 FA Annexure FA 6 p. 298 para. 2.80.
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88. Second, the Minister purports to have considered the ICMA Factors in the

Minister’s Decision but fails to set out any findings in respect of the ICMA

Factors.

89. Accordingly, the Minister’s Decision also clearly failed to consider the ICMA

Factors. Therefore, the Minister’s Decision also stands to be reviewed and set

aside in terms of sections 6(2)(b), 6(2)(e)(iii) and 6(2)(f)(ii)(cc) of PAJA.

90. Even if it were found that the Minister’s Decision did consider the ICMA

Factors, the Minister’s Decision would remain reviewable.

91. Section 5(3) of PAJA obliges an administrative decision maker to provide

adequate reasons for their decision. The Minister’s Decision plainly includes

the reasons for the Minister’s Decision. The Minister is bound by those

reasons and cannot, after the fact, provide additional reasons.97

92. In Gavric, the Constitutional Court held that reasons must be more than mere

conclusions and must refer to the relevant facts and law as well as the

reasoning process which led to the conclusions in question.98

93. Similarly Phambili Fisheries99 and Sprigg Investment,100 accepted the

following explanation of adequate reasons:

97 Umgeni Water v Sembcorp Siza Water (Pty) Ltd 2020 (2) SA 450 (SCA), para. 52.
98 Gavric v Refugee Status Determination Officer 2019 (1) SA 21 (CC), para. 69.
99 Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd 2003 (6) SA 407 (SCA),
para. 40.
100 Commissioner, South African Revenue Service v Sprigg Investment 117 CC 2011 (4) SA 551 (SCA),
12.
 Page 35 of 74

[…] the decision-maker [must] explain his decision in a way

which will enable a person aggrieved to say, in effect: Even
though I may not agree with it, I now understand why the
decision went against me. I am now in a position to decide
whether that decision has involved an unwarranted finding of
fact, or an error of law, which is worth challenging.

This requires that the decision-maker should set out his

understanding of the relevant law, any findings of fact, on which
conclusions depend (especially if those facts have been in
dispute), and the reasoning processes which led him to those
conclusions. He should do so in clear and unambiguous
language, not in vague generalities or the formal language of
legislation. The appropriate length of the statement covering
such matter will depend upon considerations such the nature
and importance of the decision, its complexity and the time
available to formulate the statement. Often these facts may
suggest a brief statement of one or two pages only.

94. To the extent the Minister considered the ICMA Factors, the Minister’s

Decision does not provide anything other than a mere conclusion, and even

that is expressed in the vaguest possible terms.

95. Therefore, the Minister’s Decision does not provide adequate reasons and the

Minister’s Decision’s stands to be reviewed and set aside in terms of sections

6(2)(e)(iv)101 and 6(2)(f)(ii)(aa) to (cc) 102 of PAJA.

Total’s Response

96. Total’s response to this review ground comprises:

101 Minister of Justice v SA Restructuring and Insolvency Practitioners Association 2018 (5) SA 349
(CC), para. 55; Bapedi Marota Mamone v Commission on Traditional Leadership Disputed and
Claim 2015 BCLR 268 (CC), para. 62.
102 Bapedi Marota Mamone v Commission on Traditional Leadership Disputed and Claim 2015 BCLR
268 (CC), para. 62.
 Page 36 of 74

96.1. a tabulated list of various portions of the Final EIR which it contents

amounts to a consideration of the ICMA Factors.103

96.2. a contention that the DG’s Decision considered the Final EIR and,

therefore, considered the ICMA Factors.104

96.3. a contention that the Minister’s Decision took the ICMA Factors into

account.105

97. The highwater mark of Total’s case is that the Final EIR referred to some of

the effects which the Proposed Project will have on various components of the

marine environment.

98. On that basis it contends that the Final EIR, the DG’s Decision, and the

Minister’s Decision considered the ICMA Factors. However, this contention is

patently unsustainable because none of those documents make any attempt

to explain their findings relating to:

98.1. whether coastal public property would be affected by the Proposed

Project;

98.2. whether the Proposed Project is inconsistent with the objective of

conserving and enhancing coastal public property for the benefit of

current and future generations; or,

103 Total AA pp. 2966 to 2971.

104 Total AA p. 2971 para. 89 to 90.
105 Total AA p. 2972 pp. 93 to 96.
 Page 37 of 74

98.3. whether the Proposed Project would be contrary to the interests of the

whole community.

99. Furthermore, ICMA confers a special legal status on coastal public property,

which afforded that environment a particularly high level of protection.106 As

such, ICMA’s requirements cannot be satisfied by generic consideration of

NEMA.

100. That the ICMA’s approach to coastal public property is unique is self-evident.

100.1. It expressly provides that the State holds the coastal public property

in trust for current and future generations.

100.2. It creates the concept of the interests of the whole community, which

specifically recognises the need to take into account the interests of

other living organisms which are dependent on the coastal

environment.

101. These concepts are not present in NEMA or other aspects of environmental

law.

102. Accordingly, it cannot be held that the Decisions under Review considered the

ICMA Factors incidentally without providing any reasoning relating to these

factors. Such an approach would fundamentally circumvent ICMA.

106 Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy 2022 (6) SA 589
(ECMk), paras. 128 to 132. This finding was not disturbed on appeal (see: Minister of Mineral
Resources and Energy v Sustaining the Wild Coast NPC 2024 (5) SA 38 (SCA), para. 35).
 Page 38 of 74

103. Therefore, Total’s response to the second review ground has no merit.

The State’s response

104. The State’s response to the second ground of review is notable for two

reasons. First, it is manifestly unsound. Second, it directly contradicts Total’s

response.

105. The State contends that there is no merit to this ground of review because:107

105.1. the areas of interest or drilling do not overlap with any marine

protected area.

105.2. the Final EIR reviewed the critical biodiversity areas and ecologically

or biologically significant marine areas.

105.3. the EA conditions mandate Total to conduct a pre-drilling survey to

gather information on seabed habitats and if sensitive habitats are

detected this will be addressed.

106. None of these contentions amount to an allegation that the Director General

or the Minister considered the ICMA Factors. In fact, these contentions have

nothing to do with the ICMA Factors.

107. Therefore, the State’s response to the second review ground has no merit.

108. However, it is notable that the State has not alleged that the DG or the Minister

took into account the ICMA Factors in the manner which Total contends (i.e.

107 State AA p. 2486 para. 122

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through the various passage of the Final EIR identified by Total). This directly

contradicts Total’s response and is destructive of that response.

Conclusion regarding the second review ground

109. We submit that the Applicants have established that DG and the Minister failed

to consider the ICMA Factors.

110. Therefore, the Decisions under Review stand to be reviewed and set aside in

terms of sections 6(2)(b), 6(2)(e)(iii) and 6(2)(f)(ii)(cc) of PAJA.

3RD REVIEW GROUND: THE FAILURE TO CONSIDER CLIMATE CHANGE AS

PART OF NEED AND DESIRABLITY

111. The Applicant’s third review ground is that the Final EIR’s assessment of need

and desirability was fatally flawed because it failed to take into account the

climate change impacts which will be caused by burning any fossil fuels

discovered by the Proposed Project108

112. In essence, the entire approach adopted by the Final EIR is flawed because it

acknowledges that the need for the Proposed Project stems from the objective

of locating gas to be burnt to create electricity.109 However, it fails to consider

the climate change impacts that combustion will cause. In other words, its

assessment of need and desirability relies on the positive impact of burning

gas but excludes the negative impacts which that would cause.

108 FA p. 55 para. 122 and 123.

109 FA Annexure FA6, p. 240 para 2.39; FA p. 55 para. 123.2.
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The obligation to consider need and desirability

113. In Fuel Retailers, the Constitutional Court held that a decision to grant an

environmental authorisation would be reviewable where the decision makers

did not consider the need and desirability of the proposed project.110 The

consideration of need and desirability is also specifically required by the EIA

Regulations.111

114. The consideration of need and desirability is a key factor in a decision to grant

an environmental authorisation.112

115. Fuel Retailers indicates that the following considerations ought to inform the

inquiry into need and desirability.

115.1. Environmental decisions must balance environmental and socio-

economic developmental considerations through the concept of

sustainable development.113

115.2. The need for development must be determined by: its impact on the

environment; sustainable development; and, social and economic

interests. Environmental authorities must integrate these factors into

their decision-making.114

110 2007 (6) SA 4 (CC).

111 EIR Regulations Appendix 3, item 3(1)(j).
112 Pine Glow Investments (Pty) Ltd v Brick-On Brick Property Investments 23 (Pty) Ltd 2019 JDR 1681

(MN) para. 49.

113 Fuel Retailers, para. 61.
114 Fuel Retailers, para. 79.
 Page 41 of 74

115.3. The objectives of integrated environmental management.115 This

includes that the effects of activities on the environment must be

considered before actions are taken in connection with them.116

115.4. Unsustainable developments are inherently detrimental to the

environment especially if they entail potential threats to the

environment.117

116. Put simply, the evaluation of need and desirability is concerned with whether

the broader public need that the activity in question proposes to address

justifies the environmental risks or impacts that would accompany it, and

whether authorising the activity concerned represents an appropriate

balancing of developmental and environmental considerations.

The deficient consideration of need and desirability

117. The Final EIR’s assessment of need and desirability is deficient in that it fails

consider the climate change impacts which will be caused by burning any

fossil fuels discovered by the Proposed Project

118. In Sustaining the Wild Coast the Makhanda High Court accepted that a need

and desirability assessment for a fossil exploration project ought to consider

the consequence of burning any fossil fuels discovered.118 The Supreme

115 Fuel Retailers, para. 63 to 69.

116 NEMA, section 23(2)(c).
117 Fuel Retailers para. 74.
118 Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others

2022 (6) SA 589 (ECMk), paras. 120 to 125.

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Court of Appeal did not disturb the finding that it was necessary to assess the

climate change impacts of burning any fossil fuels discovered. 119

119. The Final EIR does not consider the greenhouse gas emissions which will be

caused by burning any gas discovered by the Proposed Project and by any

fugitive emissions.120

120. As the Supreme Court of the United Kingdom accepted in Surrey County

Council:121

The whole purpose of extracting fossil fuels is to make

hydrocarbons available for combustion. It can therefore be said
with virtual certainty that, once oil has been extracted from the
ground, the carbon contained within it will sooner or later be
released into the atmosphere as carbon dioxide and so will
contribute to global warming.

121. The need and desirability inquiry undertaken by both the EAP and the

decision-makers treated the exploration activities as an end in and of

themselves and an activity directed at the “generation of information on

possible indigenous resources”.122 Adverse consequences related to the

production stage were postponed to a future environmental impact

assessment process.

119 We note that the SCA indicated that it could not endorse a finding that the suggestion that authorizing
new oil and gas exploration is not consistent with South Africa complying with its international climate
changes commitments.
120 FA p. 54 para. 122; Total AA p. 2975 para. 106, para. 112.2 p. 2981.
121 R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council [2024]

UKSC 20, para. 2

122 Total AA para 110.2.1, p. 2976 to 2977.
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122. The respondents contend that this was the appropriate and correct scope for

the assessment. They rely on a purported distinction between exploration and

production123 and contend that “large uncertainties” regarding “the type of

hydrocarbons, size of the discover, quality of the reservoirs, the spatial

extension of the area to be developed and the way to develop and

economically produce the targeted discovery in a success case” mean that it

is unreasonable to consider factors relating to the production phase in this

context.124

123. Notwithstanding this stance, the decision-makers determined that the

exploration activities were “needed” and “desirable” by reference to the

benefits that would be realised at production phase.

124. The particular need that the exploration activities were said to cater to was the

need for gas to generate electricity in South Africa.125

125. As a result, the Final EIR’s assessment of need and desirability is

fundamentally flawed. The need it seeks to address is the discovery of gas,

for the purpose of burning that gas to generate electricity. However, it fails to

balance need against the associated climate change impacts. In other words

the Final EIR includes the benefits of burning the gas but not the negative

environmental impacts of doing so.

123 FA Annexure FA6 para 2.4 to 2.7; p 179 to 180; Total AA para 106 to 107 p. 2975.
124 Total AA, para 110.2.1 p. 2976 to 2977.
125 FA Annexure FA6, para 2.39 p. 240; FA para. 123.2 p. 55.
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126. In consequence of this incomplete and asymmetric assessment of need and

desirability, the Decision Makers approved the exploration activities (with all

of the attendant environmental risks and impacts) without giving any

consideration to the following highly material considerations:

126.1. Any gas field developed on the project area would produce gas far in

excess of what is “needed” to satisfy the gas requirements of the IRP.

Mr. Hilton Trollip, an engineer and energy systems expert with over

40 years of relevant experience, has calculated that, to be

commercially feasible, a gas field on the project area would need to

be capable of producing 50 to 100 petajoules of gas per annum.126

On the other hand, the new gas utilisation envisaged by the IRP 2019

represents demand of approximately 6 petajoules per annum from

2024 and thereafter 19 petajoules per annum from 2027.127 The

production phase would accordingly produce 5 to 10 times what is

required for domestic electricity generation.

126.2. The gas, once produced, would inevitably be consumed generating

greenhouse gasses. If the consumption occurs in South Africa, it

would have significant implications for compliance with the country’s

emissions reduction targets. It would also be calculated to worsen

the global climate crisis with ramifications for environmental conditions

in South Africa. This consideration was omitted from consideration

126 Hilton Trollip Affidavit p. 2345 para 21.

127 Hilton Trollip Affidavit p. 2346 para 24.
 Page 45 of 74

entirely on the basis that it would only become relevant when Total

applies for environmental authorisation of the production phase.128

126.3. The ecological impact associated with predictable aspects of a

production operation, namely, the establishment of infrastructure, the

drilling of wells, and the operation of transportation facilities.

127. Total disputes Mr. Trollip’s evidence and asserts that it is not possible to

predict the volumes of gas that could in future be extracted from a field on the

project area. According to Total, this exercise amounts to speculation and

cannot produce an accurate result due to unknown variables relating to the

scale of the development,129 the type of resource,130 the costs of extracting

and processing the gas.131 These contentions are implausible in light of Mr.

Trollip’s detailed evidence to the effect that the economics of oil and gas

production demand that feasibility assessments are conducted at every

juncture of the project based on cost elements and revenue elements, which

in turn requires projections as to volume.132

128. In the circumstances, the Final EIR plainly premised the need and desirability

of the Proposed Project on the assumption that any gas discovered will, in due

course, be combusted to produce energy. As such, the climate change

impacts are plainly relevant to need and desirability. Any other conclusion

would, effectively, permit consideration of applications for environmental

128 FA Annexure FA 6, pp. 179 to 180 para 2.4 to 2.7.

129 Total’s AA p. 2988 para 125.1.
130 Total’s AA p. 2988 para 125.2.
131 Total’s AA p. 2988 para 125.3.
132 Trollip RA p. 3185 para 21.
 Page 46 of 74

authorisation to take into account the positives of a proposed project while

excluding the negatives. That is not permissible in law.

129. Therefore, the Decisions under Review stand to be reviewed and set aside in

terms of sections 6(2)(b), 6(2)(e)(iii) and 6(2)(f)(ii)(cc) of PAJA.

4TH REVIEW GROUND: FAILURE TO ASSESS TRANSBOUNDARY IMPACTS

130. The Applicants’ fourth review ground is that the Final EIR failed to consider

the transboundary impacts of an oil spill caused by the Proposed Project.133

131. Total134 and the State135 do not dispute that these impacts were not

considered. Rather they contend that there was no obligation to consider

transboundary impacts.136

132. In what follows we:

132.1. set out the transboundary impacts which were predicted, but not

assessed, in the Final EIR; and,

132.2. set out the basis of the obligation to assess transboundary impacts.

133. As will become apparent, the critical question is whether NEMA should be

interpreted to require the assessment of transboundary impacts. We show,

unequivocally, that it does.

133 FA p. 57 para. 129.

134 Total AA p. 2991 para. 140.
135 State AA p. 2490 para. 130.
136 Total AA p. 2992 para. 140; State AA p. 2490 para. 130.
 Page 47 of 74

The predicted transboundary impacts

134. A well blowout and consequent oil spill caused by the Proposed Project would

pose a risk of oil reaching international waters, Namibian waters and the

Namibian shoreline.

135. The Final EIR records the following regarding the potential impacts of an oil

spill caused by the Proposed Project:

135.1. Modelling results show that, depending on the time of year, the coast

from southern Namibia to Gqeberha could be at risk in the event of an

oil spill.137

135.2. In the event of a blow out at the postulated Release Point 1, there

would be a probability of shoreline oiling from Plettenberg Bay to north

of the Namibian border.138

135.3. In the event of blowout in June to August the strong currents and

winds would result in oil from Release Point 1 entering Namibian

waters and oil from Release Point 2 would enter international waters

beyond South Africa’s exclusive economic zone.139

136. The Oil Spill Report also records that:

136.1. where the response to a blow out at Release Point 1 was limited to

capping only, there would be:

137 FA p. 57 para. 130.

138 FA p. 59 para. 137.1.
139 FA p. 59 para. 137.2
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136.1.1. a risk of oil reaching the surface of Namibian or international

waters in seasons 1, 2, 3, and 4.140

136.1.2. a risk of shoreline oiling in Namibia in seasons 3 and 4.

136.2. Where the response to a blow out at Release Point 1 was capping,

surface response and SSD, there would be a risk of oil reaching the

surface of Namibian or international waters in seasons 1, 2, 3, and

4.141

137. The Socio-Economic Impact Reports records that both pre and post mitigation

socio-economic effects of a well blowout would have an international extent.142

138. None of this is disputed by Total or the State.

The obligation to assess transboundary impacts

139. Neither NEMA nor the EIA Regulations expressly address whether or not an

environmental impact assessment must assess the transboundary impacts of

a proposed project.

140. Accordingly, this Court must interpret NEMA to determine whether this is

nonetheless required in the absence of an explicit requirement.

140 FA p. 60 para. 140.

141 FA p. 60 para. 140.
142 FA p. 62 para. 142.
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141. In Capitec the Supreme Court of Appeal provided the following summary the

process of statutory interpretation.143

The much-cited passages from Natal Joint Municipal Pension

Fund v Endumeni Municipality (Endumeni) offer guidance as to
how to approach the interpretation of the words used in a
document. It is the language used, understood in the context in
which it is used, and having regard to the purpose of the
provision that constitutes the unitary exercise of interpretation. I
would only add that the triad of text, context and purpose should
not be used in a mechanical fashion. It is the relationship
between the words used, the concepts expressed by those
words and the place of the contested provision within the
scheme of the agreement (or instrument) as a whole that
constitute the enterprise by recourse to which a coherent and
salient interpretation is determined. As Endumeni emphasised,
citing well-known cases, '(t)he inevitable point of departure is the
language of the provision itself'.

142. When NEMA is interpreted in the light of its context and purpose it is clear that

an assessment of transboundary impacts is required.

143. As set out above, NEMA and the EIA Regulations create the legal obligation

to conduct an environmental impact assessment for the Proposed Project.

This obligation originates in the concept of integrated environmental

management created by Chapter 5 of NEMA.

144. The objectives of integrated environmental management indicate

transboundary impacts must be assessed. NEMA defines the object of

integrated environmental management to include the following.

143 Capitec Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others 2022
(1) SA 100 (SCA), para. 25.
 Page 50 of 74

144.1. The identification, prediction, and evaluation of the actual and

potential impact of an activity on the environment, socio-economic

conditions, and cultural heritage.144

144.2. Ensuring that the effects of activities on the environment receive

adequate consideration before actions are taken in connection with

them.145

145. Section 2(1) of NEMA provides that the NEMA principles apply throughout the

Republic to the actions of all organs of state that may significantly affect the

environment. These principles also indicate that transboundary impacts must

be assessed. Specifically, the NEMA principles provide inter alia that:

145.1. pollution and degradation of the environment should be avoided or,

where this cannot be avoided, minimised and remedied.146

145.2. that the negative impacts on the environment (and on people’s

environmental rights) should be anticipated and prevented or, where

they cannot be prevented, minimised and remedied.147

145.3. global and international responsibilities to the environment must be

discharged in the national interest.148

144 NEMA section 23(2)(b).

145 NEMA section 23(2)(e).
146 NEMA section 2(4)(a)(ii).
147 NEMA section 2(4)(a)(viii).
148 NEMA section 2(4)(n).
 Page 51 of 74

146. Accordingly, both the objectives of integrated environmental management and

the NEMA principles place emphasis on anticipating, considering, and

preventing (or minimising) harmful effects on the environment.

147. Notably, the definition does not limit the “environment” which is protected by

NEMA as the environment within the borders of South Africa. NEMA’s

definition of the environment reads:

the surroundings within which humans exist and that are made
up of:

(i) the land, water and atmosphere of the earth.

(ii) micro-organisms, plant and animal life.

(iii) any part or combination of (i) and (ii) and the

interrelationships among and between them; and

(iv) the physical, chemical, aesthetic and cultural

properties and conditions of the foregoing that
influence human health and well-being.

148. Accordingly, the text of NEMA, read in context, clearly supports an

interpretation which requires the assessment of transboundary impacts.

149. This is reinforced by the decision of the Mpumalanga High Court in Mining and

Environmental Community of South Africa149 which found an environmental

decision to be reviewable on the basis of a failure to consider South Africa’s

international responsibilities.

149 Mining and Environmental Community of South Africa v MEC for Agriculture, Rural Developments
and Environmental Affairs 2024 JDR 3051 (MN), para. 8
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150. Even if there were any ambiguity in this regard, it is removed when regard is

had to the role South Africa’s international obligations have on the

interpretation of NEMA. This is addressed below.

International obligations and the interpretation of NEMA

151. Section 2(1) of NEMA provides that the NEMA principles must guide the

interpretation of NEMA. Therefore, section 2(4)(n) of NEMA indicates that

South Africa’s international obligations have an important role to play in

interpreting NEMA.

152. This is also reinforced by the Constitution. Section 232 of the Constitution

provides that customary international law is law in South Africa unless it is

inconsistent with the Constitution or an Act of Parliament.

153. Section 233 of the Constitution provides that when interpreting legislation

every court must prefer any reasonable interpretation of legislation that is

consistent with international law over any alternative interpretation which is

inconsistent with international law.

154. South Africa is subject to numerous international obligations which require the

assessment of transboundary impacts of projects which take place in South

Africa.
 Page 53 of 74

155. The Trail Smelter Arbitration,150 is one of the foundation cases on international

environmental law, dating back to 1941.151 It concerned a claim for damages

for environmental harm caused in the United States by a zinc and lead smelter

in Canada.152 It accepted that international law provided that no state could

use, or permit its territory to be used in a manner which causes injury in or to

the territory of another state.153

156. This is a recognition of a substantive international law obligation on a state not

to allow its territory to be used in a manner which causes transboundary harm.

157. In the Pulp Mills Case, the International Court of Justice accepted that

international law requires an environmental impact assessment to be

conducted where an activity poses a risk of transboundary harm. 154

Specifically it held:

[…] In this sense, the obligation to protect and preserve, under

article 41(a) of the Statute, has to be interpreted in accordance
with a practice, which in recent years has gained so much
acceptance among States that it may now be considered a
requirement under general international law to undertake an
environment impact assessment where there is a risk that the
proposed industrial activity may have a significant adverse
impact in a transboundary context, in particular, on a shared
resource. Moreover, the duty of due diligence, and the duty of
vigilance and prevention which it implies, would not be
considered to have been exercised, if a party planning work
liable to affect the regime of the river or the quality of its waters

150 Trail Smelter Case (United States, Canada) Reports of International Arbitral Awards Vol. 3 (1905 –
1982) p. 1907.
151 Glazewski (Ed) Environmental Law in South Africa October 2023 SI 11, p. 2-12.
152 Trail Smelter Case (United States, Canada) Reports of International Arbitral Awards Vol. 3 (1905 –
1982) p. 1907, at pp. 1938 and 1941.
153 Trail Smelter Case (United States, Canada) Reports of International Arbitral Awards Vol. 3 (1905 –
1982) p. 1907, at p. 1965.
154 Pulp Mills on the River Uruguay (Argentine v Uruguay) Judgment I.C.J. Reports 2010 p. 14, at para
204.
 Page 54 of 74

did not undertake an environmental impact assessment on the

potential effects of such works.

158. This is a well-established rule of customary international law. The Pulp Mills

Case also held that:155

The Court points out that that the principle of prevention, as a

customary rule, has its origins in the due diligence that is
required of a State in its territory. It is “every State’s obligation
not to allow knowingly its territory to be used for acts contrary to
the rights of other States” [...]. A State is thus obliged to use all
the means at its disposal in order to avoid activities which take
place in its territory, or in any area under its jurisdiction, causing
damage to the environment of another State. This Court has
established that this obligation “is now part of the of the corpus
of international law relating to the environment”.

159. The need to address transboundary impacts is also addressed in the United

Nations Rio Declaration on Environment and Development.156 Article 2 of this

Declaration reads:

States have, in accordance with the Charter of the United

Nations and the principles of international law, the sovereign
right to exploit their own resources pursuant to their own
environmental and development policies, and the responsibility
to ensure that activities within their jurisdiction or control do not
cause damage to the environment of other states or to areas
beyond the limits of national jurisdiction.

155 Pulp Mills on the River Uruguay (Argentine v Uruguay) Judgment I.C.J. Reports 2010 p. 14, at para
101.
156 Rio Declaration on Environment and Development A.CONF/151.26 (Vol. 1).
 Page 55 of 74

160. South African courts have frequently cited the Rio Declaration.157 In Fuel

Retailers the Constitutional Court held that:158

[…] The Rio Declaration is especially important because it

reflects a real consensus in the international community on
some core principles of environmental protection and
sustainable development. […]

161. The Rio Declaration is the most generally accepted formulation of the main

principles of international environmental law.159

162. South Africa is also subject to a number of specific international agreements

which require the assessment of transboundary impacts.

163. Most notably, South Africa is a party to the Abidjan Convention for Co-

Operation in the Protection and Development of the Marine and Coastal

Environment of the West and Central Africa Region.160 Article 13(2) of this

Convention obliges South Africa to endeavour to include an assessment of

the potential environmental effects of an activity within South Africa on the

Convention Area. The Convention Area includes the marine environment off

the coast of Namibia.

157 See e.g. Fuel Retailers Association of Southern Africa v Director-General: Environmental
Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province
2007 (6) SA 4 (CC), para. 49; African Centre for Biodiversity NPC v Minister of Agriculture, Forestry
and Fisheries 2024 JDR 4540 (SCA), para. 11; Forestry South Africa v Minister of Human
Settlements, Water & Sanitation 2021 JDR 1905 (WCC), para. 185.
158 Fuel Retailers Association of Southern Africa v Director-General: Environmental Management,
Department of Agriculture, Conservation and Environment, Mpumalanga Province 2007 (6) SA 4
(CC), para. 49
159 Dupuy & Vinuales International Environmental Law Second Edition Cambridge University Press, p.
15
160 FA p. 65 para. 158.
 Page 56 of 74

164. Accordingly, international law clearly recognises that:

164.1. States have a duty not to allow activities in their territory to cause

transboundary harm.

164.2. States have a duty to ensure that where activities in their territory may

cause transboundary harm, this harm is assessed as part of an

environmental impact assessment.

165. Interpreting NEMA and the EIA not to require environmental impact

assessment to assess and predict transboundary harm would clearly be

inconsistent with international law. An interpretation requiring such an

assessment would not be unreasonable, particularly given that the NEMA

principles themselves recognises the need to discharge global and

international responsibilities. Therefore, section 233 of the Constitution

obliges this Court to prefer an interpretation of NEMA which requires an

assessment of Proposed Project’s transboundary impacts.

166. In any event, these international obligations are part of customary international

law and, therefore, are South African law in terms of section 232 of the

Constitution. Lastly, common sense dictates that the state in which a project

will take place must ensure that transboundary impacts are assessed. The

Proposed Project is located in South Africa. Namibia has no jurisdiction to

exercise any control over the Proposed Project and, accordingly, it powerless

to force Total to assess the impacts which the Proposed Project would have
 Page 57 of 74

on Namibia. To hold otherwise would create a dangerous, and easily

exploitable, lacuna.

Subsidiarity is not relevant

167. Total contends that the fourth review ground falls foul of the principle of

subsidiarity.161

168. The principle of constitutional subsidiarity provides that where legislation has

been enacted to give effect to a constitutional right, then a litigant must rely on

the legislation to enforce that right or challenge the constitutionality of the

legislation.162

169. In New Clicks the operation of the subsidiarity principle as follows:163

Where, as here, the Constitution requires Parliament to enact

legislation to give effect to the constitutional rights guaranteed
in the Constitution, and Parliament enacts such legislation, it will
ordinarily be impermissible for a litigant to found a cause of
action directly on the Constitution without alleging that the
statute in question is deficient in the remedies that
it provides. Legislation enacted by Parliament to give effect to a
constitutional right ought not to be ignored. And where a litigant
founds a cause of action on such legislation, it is equally
impermissible for a court to bypass the legislation and to decide
the matter on the basis of the constitutional provision that
is being given effect to by the legislation in question. Thus
in Bato Star this Court held that '(t)o the extent, therefore, that
neither the High Court nor the SCA considered the claims made
by the applicant in the context of PAJA, they erred'. A
fortiori here where the cause of action is expressly founded on
PAJA.

161 Total AA p. 2993 para. 144.

162 Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC), para. 73.
163 Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd) 2006 (2) SA 311 (CC), para.

437; My Vote Counts NPC v Speaker of the National Assembly 2016 (1) SA 132 (CC), para. 165.
 Page 58 of 74

170. The Applicants do not rely directly on section 24 of the Constitution. The

Applicants’ case is advanced on the basis that NEMA, properly interpreted,

requires that transboundary impact of projects located in South Africa to be

assessed.

171. There is nothing in the Applicants’ case which triggers the principle of

subsidiarity.

172. That sections 24, 232 and 233 of the Constitution are relevant to the

interpretation of NEMA does not implicate subsidiarity.

172.1. Section 232 imports customary international law into South Africa.

172.2. The wording of section 233 clearly indicates that it is intended to be

used to interpret South African legislation.

172.3. Section 39(2) of the Constitution provides that when courts interpret

South Africa legislation they must promote the spirit, purport, and

objects of the Bills of Rights. Accordingly, the relevance of section 24

of the Constitution to the interpretation of NEMA is consistent with the

Constitution.

173. In any event the ICMA expressly requires the State Respondent to give effect

to international law. One of the objects of ICMA is to give effect to the

Republic’s obligations in terms of international law regarding coastal

management and the marine environment (section 2(e)) and section 21

 Page 59 of 74

requires the State to control and manage activities within coastal waters in

accordance with the Republic’s obligations under international law.164

Subsidiarity is simply not relevant because the Applicant’s do not rely directly on the

Constitutional Rights but rather refer to these provisions in the context of interpretation

of NEMA.

Conclusion on the fourth review ground

174. Therefore, NEMA required the Final EIR to assess the environment impact of

the transboundary impacts it predicted may be caused by the Proposed

Project.

175. The Final EIR failed to assess those transboundary impacts and the DG’s

Decision and the Minister’s Decision failed to take those impacts into account.

176. Therefore, the Decisions under Review stand to be reviewed and set aside in

terms of sections 6(2)(b), 6(2)(d), 6(2)(e)(iii) and 6(2)(f)(ii)(cc) of PAJA.

5TH REVIEW GROUND: BLOW OUT AND OIL SPILL CONTINGENCY PLANS

177. The Applicant’s fifth review ground relates to the failure to include the Blow

Out Contingency Plan (“BOCP”) or the Oil Spill Contingency Plan (“OSCP”)

for the Proposed Project in the Final EIR.

164“21. Control and management of coastal waters.—An organ of state that is legally responsible for
controlling or managing any activity on or in coastal waters, must control and manage that activity—
(a) in the interests of the whole community; and
(b) in accordance with the Republic’s obligations under international law.”
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178. The Final EIR describes the OSCP as specifying:165

178.1. how best to control an oil spill.

178.2. how to prevent certain sensitive environments from exposure to oil.

178.3. what can be done to minimise the damage done by an oil spill.

179. The Final EIR provides that the BOCP will set out the detailed response plan

to be implemented in the event of a well blowout.166

180. Together the OSCP and BOCP set out Total’s plans for how it will respond to

a well blowout and oil spill.

181. The Oil Spill Report notes that because the OSCP has not been prepared, the

Oil Spill Report is prepared on the assumption that the OSCP will accord with

the oil spill contingency plan prepared for a different project.167

182. Both the OSCP and the BOCP are listed in the Final EIR as “Project Control /

Key Mitigation”.168

183. However, the OSCP and BOCP were:169

183.1. not prepared for the Final EIR and were not available to the Decision

Makers;

165 FA p. 70 para. 176.

166 FA p. 70 para. 179.
167 FA p. 70 para. 180.
168 FA p. 70 para. 177.
169 FA p. 71 para. 181.
 Page 61 of 74

183.2. not available as part of the public participation process for the

Proposed Project;

183.3. not available to the Decision Makers when the Decisions under

Review were taken; and

183.4. not included in the environmental management program (“EMPR”) for

the Proposed Project.

184. The DG’s Decision does not give any consideration to the OSCP, the BOCP,

or their absence, save for a vague references to Total having strategies in

place to deal with a well blow out.170

185. The Minister’s Decision records that she is satisfied that the OSCP and BOCP

will be put in place and will adequately mitigate the severity of an unplanned

oil spill.171

186. Condition 5.5.5 of the EA required Total to prepare OSCP and BOCP 60 days

prior to commencing drilling operations.172 It obliges Total to submit these

plans. Although, the condition is silent on who these plans should be submitted

to (presumably it is the DG) or what powers the recipient has in relation to

those plans.

170 FA p. 71 para. 182.

171 FA p. 72 para. 187.
172 FA p. 71 paras. 183 to 185.
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187. The manner in which the OSCP and BOCP have been handled has two

significant flaws. These are addressed below.

No public participation regarding the OSCP and BOCP

188. One of the foundational principles of NEMA is that the participation of all

interested and affected parties must be promoted and the participation of

disadvantaged people must be ensured.173

189. Public participation must provide interested and affected parties with a

reasonable opportunity to influence the outcome of the decision at hand.174

190. Section 24(4)(a)(v) of NEMA provides that interested and affected parties must

be given a reasonable opportunity to participate in the environmental impact

assessment process.

191. As set out above, the OSCP and BOCP are the documents which will define

Total’s plans manage and mitigate a well blowout and oil spill caused by the

Proposed Project.

192. Section 24(4)(b)(ii) of NEMA provides that the environmental impact

assessment process must include an investigation of the mitigation measures

to keep adverse impact to a minimum.

193. Accordingly, the environmental impact assessment process for the Proposed

Project ought to have included public participation in respect of the BOCP and

OSCP.

173 NEMA, section 2(4)(f). See also: Regulation 41(6) of the EIA Regulations.
174 Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC), para. 171.
 Page 63 of 74

194. In this instance, the failure to provide for such public participation has been

compounded. The Oil Spill Report expressly records that it has been prepared

on the assumption that the OSCP will be consistent with the oil spill contingency

plan for another project.

195. Accordingly, the Oil Spill Report is only a relevant assessment of the impacts of

an oil spill if the OSCP eventually adopted accords with the oil spill plan which

underlies Oil Spill Report. However:

195.1. the public participation process for the Final EIR and the Oil Spill

Report did not, and could, include the OSCP.

195.2. condition 5.5.5 of the EA (which mandates the preparation and

submission of the OSCP) does not cater for any public participation in

respect of the OSCP.

196. Accordingly interested and affected parties were not afforded a reasonable

opportunity to participate in the assessment of the impacts (and mitigation

measures) in respect of an oil spill caused by the Proposed Project. Therefore,

there has not been a proper public participation process.

The OSCP and BOCP ought to have been part of the EMPR

197. Section 24N(2)(g) of NEMA provides that an EMPR must include a description

of the manner in which it intends to control, stop or remedy any activity or

process which cause pollution.

 Page 64 of 74

198. Item 1(1)(f) of Appendix 4 to the EIA Regulation provides that an EMPR must

include a description of the proposed impact management actions relating to

activities or process which causes pollution.

199. The OSCP and the BOCP are Total’s plans to control pollution caused by the

Proposed Project and they ought to have formed part of the EMPR. Their

absence is yet another indication of a flawed process.

The defences regarding public participation.

200. The State contends that the EA conditions mandate that OSCP and BOCP be

subject to a public participation process before the commencement of drilling

operations.175 Tellingly, it does not refer to where this requirement is located

in the EA. That is because the EA does not contain such a requirement.

201. Total does not appear to respond directly to the question of public

participation. However it does allege that its generic Oil Spill Contingency Plan

was made available to interested and affected parties.176

202. This allegation does not refute the fifth review ground. The central tenet of

Total’s answer to this review ground is that its oil spill contingency plan could

not be prepared at the same time as the Final EIR as a site specific plan was

required.177 Accordingly Total contemplates filing an OSCP which differs (or

at least may differ) from its generic plan. Therefore, in the absence of

mechanism to cater for public participation in the OSCP the fact that a generic

175 State AA p. 2492 para. 136.

176 Total AA p. 3002 para. 175.
177 See e.g. Total AA p. 3002 para. 176.
 Page 65 of 74

plan was made available does not establish that a reasonable public

participation process has been followed.

203. Furthermore, Total’s response to the internal appeal indicates that it has no

intention of allowing public participation in respect of the OSCP and BOCP.

That response denies there is a legal obligation to provide for such public

participation and alleges, without evidence, that the OSCP and BOCP will

contain proprietary information.178 These documents relate to how Total will

respond to an oil spill caused by the Proposed Project. There is no basis for

them to be secret, much less for such a contention to be accepted without

evidence.

The defences relating to practicality

204. The main thrust of Total’s response regarding the fifth review ground is that

the OSCP and BOCP are significantly influenced by the location of the wells

to be drilled and it would be impractical and overly burdensome to prepare

these plans based on preliminary locations and then revise them for the final

location.179

205. There is no merit to this argument for three reasons.

205.1. First, inconvenience or expense to Total does not warrant failing to

comply with the prescripts of NEMA and the EIA Regulations.

178 RA p. 3159 para. 75.

179 See e.g. Total AA p. 2999 para. 164.
 Page 66 of 74

205.2. Second, even if this were not the case, Total would need to put up

evidence as to the time and cost involved in preparing preliminary and

the final plans and contextualise this to the overall cost of the

Proposed Project. It has not done so.

205.3. Third, even if it was necessary to delay preparing the OSCP and

BOCP this could only be done reasonably and lawfully if some

mechanism was created to allow for public participation in respect of

those documents. This was not done.

Conclusion on the fifth review ground

206. Therefore the Decisions under Review were procedurally unfair and did not

comply with sections 24(4)(a)(v) and 24N(2)(g) of NEMA and the relevant

provisions of the EIA Regulations. They therefore stand to be reviewed and

set aside in terms of sections 6(2)(b), 6(2)(c), 6(2)(d), 6(2)(e)(iii) and

6(2)(f)(ii)(cc) of PAJA.

6TH REVIEW GROUND: THE INVOLVEMENT OF PASA

207. The Applicant’s sixth review ground is that the Petroleum Agency of South

Africa delivered an appeal response report which, at face value, was

submitted on behalf of the Second Respondent 180

208. The appeal to the Minister was governed by the National Appeal Regulations

(“the Appeal Regulations”) published under NEMA.181

180 SFA p. 1622 para. 8.

181 GNR.993 of 8 December 2014
 Page 67 of 74

209. The Appeal Regulations provide for a process in which interested and affected

parties and organs of state are entitled to respond to an appeal.

210. Regulation 5 of the Appeal Regulations provides:

The applicant, the decision-maker, interested and affected

parties and organ of state must submit their responding
statement, if any, to the appeal authority and the appellant within
20 days from the date of receipt of the appeal submission.

211. The Minster’s Decision relies on information which it describes as having been

provided by the competent authority.182

212. It appears from the Rule 53 Record that PASA filed a response to the

Applicant’s appeal and the DG did not.183

213. A comparison of the responding statements submitted by PASA with the

material presented under the heading “CA’s Response” in the Appeal Decision

reveals that the source of the purported input from the DG was PASA’s

responding statements.

214. For example, at page 15 of PASA’s responding statement in respect of the

Applicants’ joint appeal it is recorded:184

The Agency is not able to comment on the suggested rating of

the likelihood of a blow-out occurrence, because the WildTrust
report does not provide the methodology used to generate the
rating. Therefore, it is not clear if it considered all components
considered in the Oil Spill Drift Report submitted with ESIA.

182 SFA p. 1623 to 1625 paras. 10 to 12.

183 Record Items 34.1 to 34.5.
184 Record Item 34.1 p. 8992
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215. This is in response to material put up by the Applicants in a document titled

“WildTrust Report” disputing the calculation in the Final EIR of the likelihood

of a blowout.

216. The Minister’s Decision, in dealing with the corresponding ground of appeal,

records at paragraph 2.17.11 under the heading “CA’s response”, “the

Competent Authority states that it is unable to comment on the suggested

rating of the likelihood of a blow-out occurrence in the WildTrust report

because the appellants did not provide the methodology used to generate the

rating”.185

217. Self-evidently, this passage was taken from PASA’s appeal response report,

and was treated by the Minister as originating from the DG.

218. The Minister’s reliance on PASA’s responding statement as if it was that of the

DG taints her decision in two respects.

219. Firstly, this means that there was no proper compliance with regulation 5.

Where an administrative decision is impugned on the basis of a procedural

defect, the proper inquiry is whether the non-compliance had the effect of

undermining the purpose of the provision. This is not the same as asking

whether compliance with the provisions would have led to a different result.186

185 FA Annexure FA6 p. 210 para. 2.17.11.

186 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South
African Social Security Agency, and Others 2014 (1) SA 604 (CC), para 30.
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220. In the present context, the purpose of regulation 5 was to place the DG’s

comments on the Applicants’ appeal before the Minister. The Minister took

her decision in ignorance of the DG’s comments and instead relied on the

those of PASA. This fundamentally undermines the purpose of regulation 5.

221. PASA’s function in terms of section 71(a) of the MPRDA is to “promote

onshore and offshore exploration for and production of petroleum”. By its

institutional nature, PASA is manifestly unsuited to defending what is meant

to be an impartial decision regarding the environmental impacts of a petroleum

exploration project.

222. Secondly, to the extent that the Minister took account of PASA’s responses in

formulating his decision, which she plainly did based on the structure of the

Minister’s Decision, she took account of irrelevant considerations.

223. In the premises, the Minster’s Decision falls to be set aside in terms of section

6(2)(b) of PAJA and section 6(2)(e)(iii) of PAJA.

THE RELIEF SOUGHT

224. The Applicants have established that the Decisions under Review do not comply

with the standards required by PAJA.

225. Section 8(1)(c) of PAJA caters for the setting aside of administrative decision

which do not comply with provision of PAJA.

226. Furthermore, PAJA is the legislation through which the constitutional right to just

administrative action is implemented. Accordingly, failures to comply with PAJA

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involve the impairment of a Constitutional right. Similarly, NEMA is the

legislation enacted to protect the Constitutional environmental rights.

227. As such, section 172(1)(a) of the Constitution requires that the Decisions under

Review be declared to be unlawful and invalid. The mandatory nature of this

section was confirmed by the Constitutional Court in All Pay.187

228. Therefore, the Decisions under Review fall to be set aside.

CONDONATION

229. Although the founding affidavit (excluding 8 of 12 annexures) was issued and

served electronically on the respondents within the 180-day time limit in terms

of section 7(1) of the PAJA, formal service of the complete application

occurred outside of this period. Service on Total was effected on 10 April

2024 (10 days late); service on the DG and the Second Respondent (the

Minister of Mineral Resources) was effected on 9 May 2024 (29 days late);

service on the Minister was effected on 21 May 2024 (51 days late).

230. On 25 October 2024, the Applicants brought an application for the

condonation of the late service of the complete founding affidavit. This

application is not opposed.

187 All Pay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social
Security Agency 2014 (1) SA (1) 604 (CC), para. 25
 Page 71 of 74

231. The reasons for the delay in serving the complete founding affidavit are fully

explained in the supporting affidavit.188 In brief, a sequence of clerical errors

resulted in a situation in which the annexures to the founding papers (running

to some 1500 pages), already signed by a commissioner of oaths, were

completely out of order and required a significant period of time to re-order.

The problem was thereafter compounded by the refusal of the State Attorney’s

office in Pretoria to accept service of the complete founding papers on 25 April

2024, notwithstanding that the State respondents’ notice of intention to oppose

indicated that this was the office that would be handling the application.

232. In terms of section 9(2) of PAJA, a court may extend the period allowed for

instituting a review if it is in the interests of justice to do so. Considerations

that are germane to this inquiry are the prospects of success the length of the

delay, the explanation for the delay, the importance of the issues raised by the

matter, prejudice to the other parties and the effect of the delay on the

administration of justice.189

233. We submit that these factors militate strongly (if not decisively) in favour of

extending the 180-day period to 231 days as required in this case. A full

explanation has been given for the delay. None of the respondents was

prejudiced because in each case they were in receipt of an electronic copy of

the founding affidavit and were able to access all missing annexures (which

either emanated from the respondents themselves or were readily accessible

188 Condonation FA, p. 2383 to 2390, paras 21 to 54.

189 Grootboom v National Prosecuting Authority and Another [2013] ZACC 37; 2014 (2) SA 68; 2014 (1)
BCLR 65 (CC) at para 50.
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on the internet).190 There was ultimately no delay occasioned to the

administration of justice because the State respondents had to be compelled

to produce the rule 53 record and did so significantly out of time on 2

September 2024 (almost four months after the complete founding affidavit

was served on the last respondent).

234. In the circumstances we submit that condonation for the delay should be

granted by this Court.

COSTS

235. Both Total and the State request that this application be dismissed with

costs.191

236. The Applicants’ founding affidavit squarely explains that they are public

interest organisations whose activities include protecting, preserving, and

conserving the environment. The Applicants’ founding affidavit alleges that in

addition to bringing this application in their own interest they do so in the public

interest and in the interest of preserving the environment.192 This is admitted

by the State193 and not denied by Total.194

190 See “CC9”, p. 2406.

191 Total AA p. 3025 para. 281; State AA p. 2498.
192 FA p. 14 para. 18.
193 State AA p. 2493 para. 142;
194 Total AA p. 3012 para. 212.
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237. The Biowatch195 principle provides that where a private party pursues litigation

to vindicate constitutional rights, even if it is not successful no costs should be

awarded against it.

238. Section 32(2) of NEMA provides a similar rule in respect of litigation brought

in the public interest or in the interest of protecting the environment.

239. This application clearly seeks to vindicate the right to have the environmental

rights contained in section 24 of the Constitution and the right to just

administrative action contained in section 33 of the Constitution.

240. According, this is litigation to vindicate Constitutional rights and it brought in

the public interest. Therefore, even if the Applicants do not succeed, each

party should bear their own costs.

CONCLUSION

241. In the circumstances the Applicants have established that:

241.1. the Final EIR did not comply with requirements of NEMA, ICMA, and

the EIA Regulations; and,

241.2. therefore that the Decisions under Review are irrational, unlawful, and

procedurally and stand to reviewed and set aside in terms of PAJA.

195 Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC), para. 22.
 Page 74 of 74

242. Accordingly the Applicants are entitled to the relief sought in their amended

notice of motion.

N Rajab-Budlender SC
I Learmonth
J Blomkamp
Counsel for the Applicant
Chambers
March 2025