CAPE TOWN – The Western Cape High Court has dismissed an application by Aukotowa Fisheries Primary Co-operative Limited and two environmental groups seeking to overturn government approval for offshore seismic testing.

Justice Judy Cloete delivered judgement on Thursday 13 August, ruling against Aukotowa Fisheries, The Green Connection and Natural Justice. The respondents were the Director-General of the Department of Mineral and Petroleum Resources; the Minister of Forestry, Fisheries and the Environment; TGS Geophysical Company (UK) Limited and the Minister of Mineral and Petroleum Resources. The case was heard on 1-2 June in the Western Cape Division, Cape Town.

The applicants sought to review and set aside the environmental authorisation granted to TGS Geophysical Company under the National Environmental Management Act (NEMA). They challenged both the Director-General’s decision to grant the authorisation and the Environment Minister’s dismissal of appeals against that authorisation.

According to court papers, the applicants argued that decision-makers unlawfully relied on input from the Petroleum Agency of South Africa (PASA) during the authorisation process. They further contended that acoustic studies, biodiversity assessments, and the Basic Assessment Report were flawed and failed to consider marine and cumulative environmental impacts adequately.

The fishing co-operative and environmental organisations also claimed that the environmental review process had not properly assessed the potential impact of seismic testing on fishing operations and marine ecosystems.

The court examined whether the proper statutory procedures had been followed and whether all relevant information was before decision-makers when they granted the authorisation. Justice Cloete noted difficulties in relating the grounds advanced in the applicants’ heads of argument to those set out in their affidavits.

The judgement stated there were inconsistencies in how the review grounds were formulated. The court observed that it struggled to decipher whether the grounds in the legal arguments corresponded to the affidavit material.

The court emphasised that in judicial review proceedings, courts must avoid taking over the statutory powers of the original decision-maker. Justice Cloete stated that the exercise of judgement on facts by decision-makers, including the weight given to particular facts, is generally not subject to review.

The judgement outlined that an applicant must make out its case in its founding papers and may not raise a new ground for the first time in replying affidavits.

A key legal question was whether the appeal should result in a de novo consideration of the environmental authorisation application, meaning a complete rehearing with fresh determination of the merits. The court rejected this approach.

Justice Cloete found that none of the applicants’ complaints succeeded. The court dismissed the application and ordered that each party pay their own costs, meaning neither side will recover legal expenses from the other.

The judgement allows the seismic survey to proceed as authorised. Seismic testing uses sound waves to map underwater geological formations for potential oil and gas exploration.

Aukotowa Fisheries Primary Co-operative represents small-scale fishing communities along the Western Cape coast, The Green Connection NPC is a non-profit environmental advocacy organisation, and Natural Justice is a non-profit organisation focusing on environmental and human rights law. These organisations have previously raised concerns about offshore exploration activities along the South African coastline.

TGS Geophysical Company (UK) is a seismic data company that provides geological surveys for the energy industry.

The case is one of several legal challenges to offshore exploration activities along South Africa’s coastline in recent years. The National Environmental Management Act requires environmental authorisation for activities that may affect the environment.