TotalEnergies in Court Over Offshore Oil and Gas Drilling

Small-scale fishers from the West Coast picketed outside the Cape High Court on Monday.

• Small-scale fishers and environmental organisations are challenging authorisations granted to TotalEnergies to drill oil and gas exploration wells off the West Coast between Port Nolloth and Saldanha Bay.
• The applicants argue that TotalEnergies’s environmental impact assessment is flawed.
• They say it did not consider potential long-term impacts of production or the detrimental socio-economic impact on small-scale fishers.
• Fishers are already experiencing fish stock declines and changes in migration habits.
• The respondents argue that exploration and production rights are separate under the Mineral and Petroleum Resources Development Act.

Small-scale fishers and environmental organisations were in the Cape High Court on Monday in a bid to halt oil and gas exploration by TotalEnergies along the West Coast.

The case was brought by the Aukotowa small-scale fishing cooperative from Port Nolloth, The Green Connection and Natural Justice. They have taken the Department of Mineral and Petroleum Resources (DMPR), the Minister of Forestry, Fisheries, and the Environment (DFFE), and TotalEnergies EP South Africa to court to challenge environmental authorisations granted by the DMPR director-general and environment minister.

TotalEnergies applied for environmental authorisations to drill exploration wells off the West Coast between Port Nolloth and Saldanha Bay in the Deep Western Oil Basin, an area covering 30,000km².

Environmental authorisations were granted in October 2023 and upheld on appeal in April 2024.

In August last year, the Western Cape High Court set aside the environmental authorisation for TotalEnergies’ offshore oil and gas exploration project to drill ten wells on the south coast between Cape Town and Cape Agulhas.

Small-scale fishers and environmentalists picketed outside the court on Monday morning to voice their concerns about the impacts of climate change and the impact of exploratory drilling on fisher communities.

Video by Jacques Malherbe

“The importance of this [court case] is about responsible decision-making and that our government takes decisions that do not exclude community voices,” said Neville van Rooy, from The Green Connection’s community outreach programme.

The matter was heard by a full bench of judges including Judge Mark Sher, Judge Babalwa Mantame and Judge Ncumisa Mayosi.

In court, advocate Peter Hathorn, representing the applicants, said fishing is part of the culture of the Port Nolloth fishers, and they are already experiencing fish stock declines and changes in fish migration habits.

The applicants’ case rests on four main arguments. They say TotalEnergies’s environmental impact assessment (EIA) is flawed because it considered the exploratory phase in isolation from the potential long-term negative impacts of production, which they argue is required by the National Environmental Management Act (NEMA).

They also argue that the risk of an oil spill is underestimated in the impact assessment and cite evidence that the “ultra-deep” wells planned increase the risk of an oil spill.

They argue that the detrimental socio-economic impact on small-scale fishers in Port Nolloth, a poor West Coast town where fishing is a “predominant economic activity”, was not adequately addressed.

They contend that neither the DMPR nor the DFFE minister properly considered the Integrated Coastal Management Act, which is meant to “conserve and protect coastal public property for the benefit of present and future generations”.

Government response

In their court papers, the respondents argue that the Mineral and Petroleum Resources Development Act (MPRDA) distinguishes between exploration rights and production rights and “treats them as separate and distinct rights with different obligations and requirements”.

TotalEnergies proposes to drill one exploration well and if it is successful, nine additional wells.

“The question of whether production will be commercially viable would only be determined after various further studies have been completed,” they say.

They argue the exploration phase itself will not result in the production of oil or gas, and will have no direct influence on South Africa’s reliance on fossil fuels, greenhouse gas emissions or climate change effects.

They argue that the risk of an oil spill is very small, at about 0.0143% of “global likelihood”.

In the event of an oil spill, they say, TotalEnergies’s EIA report gave “proper consideration” to mitigation measures, such as an oil spill contingency plan, an emergency response plan, and a blowout contingency plan, among others.

On Tuesday, the matter continued in court and the third respondent, TotalEnergies, made its submissions, represented by advocate Chris Loxton.

TotalEnergies argued that South Africa could not simply “look the other way” while other countries explored for oil and gas.

Loxton said the applicants wished for the public and government to remain ignorant of whether South Africa has new sources of energy. “Ignorance has no advantage,” he said.

Judgment was reserved.

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