Once upon a time, South Africa had four oil refineries capable of refining 508 000 barrels of oil a day. This, along with the 150 000 barrels produced by SASOL and the 45 000 produced by Mossgas, was sufficient to provide South Africa with most of its fossil fuel-based needs.

That was when South Africa had four crude oil refineries. These also provided the feedstock that supported a thriving petrochemical industry in South Africa.

The closure of the Shell & BP SA Petroleum Refineries (Sapref) reduces the number of oil-based refineries to two. The country’s refining capacity is at best 41%,  and that’s assuming that Chevron’s refinery in Cape Town and Natref in Sasolburg remain open and fully operational. This is looking increasingly unlikely, which means that South Africa is well on its way to becoming an importer of oil products rather than a refiner of oil.

My hometown, Durban, which has gone from South Africa’s largest refinery city to having no refineries at all, will be particularly hard-hit by this. There have already been significant job losses in Durban, and this is likely to get worse as the impacts of the loss of refining capacity reverberate through the economy. This will get much worse if its large petrochemical industry moves away from Durban. I shudder to think what this will mean to Durban’s already tiny rates base.

There are many reasons for this decline. Part of the problem is what is called the middle-income trap. Another big one is the ANC government’s policy of looting the economy rather than growing it. But the straw that broke Sapref’s back is the decision taken by Judge Bloem in the second Shell case to interdict Shell from continuing its exploration for gas 20 to 70 km off the Wild Coast.

Economist Dawie Roodt confirmed this in an interview with the Sunday Tribune, which quoted him as saying that South Africa’s largest oil refinery ‘wanted to make use of possible gas or oil finds in the Eastern Cape so they can use the impress stock and now that they have been prevented from doing so, they have decided not to continue’.

Judge Bloem justified his decision on the basis that the protection of rights was more important than the economy, and that the communities of small-scale fishers living along the Wild Coast would agree with him.

But I question the correctness of the decision in law.

Case is unusual

This case is unusual in that the lawfulness of Shell’s exploration 20 to 70 km offshore of the Wild Coast is the subject of two judgments, Judge Govindjee’s first Shell case and the second Shell case that resulted in Shell being prevented from continuing its Wild Coast exploration.

Moreover, Judge Govindjee refused the application for an interim interdict in the first Shell case.

So this is also a matter of two judges arriving at different results in respect of what is essentially the same matter.

Lawyers will quickly discern the difference in quality between the two judgments. The judgment of Judge Govindjee sets out the applicable law with admirable lucidity as well as drawing the legal distinction that must be made between evidence-based proof of a reasonable apprehension of irreparable harm from the speculative opinions of scientists that there might be harm they do not yet know about.

The judgment of Judge Bloem did not even get the test for an interim interdict right, despite this being part of our law for over 100 years.

Judge Bloem also erred in assuming that he was bound to apply the National Environmental Management Act (NEMA) environmental principles when deciding whether or not to grant an interim interdict (the test is correctly stated in the judgment of Judge Govindjee).

This is not the case. Courts must decide whether or not to grant interim interdicts in terms of the ordinary law that applies to such matters. They are not bound by the rules set out in NEMA that bind organs of state in their environmental decision-making. This is because our Constitution explicitly states that our courts are not organs of state.

The NEMA principles are only relevant when a court reviews a decision of an organ of state. They do not apply to the grant or refusal of interim interdicts.

Applications for interim interdicts must be granted having regard to proven facts rather than speculation about what the facts might possibly be. As I pointed out in an earlier article, expert opinion is only admissible when it speaks to proven facts. Judge Bloem appears to have forgotten this when writing his judgment.


Judge Bloem also erred in suggesting that the second application was more fully supported by expert evidence. The so-called expert evidence that Judge Bloem relied on was not expert evidence as the term is understood in law. It amounted to speculative opinion unsupported by facts, and should have been ignored, as Judge Govindjee did in the first Shell judgment.

The difference between the two cases is that Greenpeace Africa and the ski boat communities that were the applicants in the first case were not able to blackwash their desire to stop South Africa’s exploitation of fossil fuels by appealing to cultural rights.

But Judge Bloem erred both in his interpretation of these rights and in his interpretation of the right to be consulted.

South Africa is a secular state. Our Constitution does not protect culture or religion per se. It protects a community’s right to practise that culture or religion. This does not mean that a culture or religion can impose itself on other South Africans.

Judge Bloem found that the applicant communities had a clear right to be consulted because Shell’s prospecting offended their spiritual attachment to the sea. But the fact that something is offensive to a religious group is not the test. If it were, nothing would get done in South Africa.

One has to show that Shell’s activities prevented the applicant communities from practising their religion or enjoying their culture. There was no evidence that this was the case, which is doubtless why Shell did not address representations made about the applicant communities’ culture and religion in any detail. Apart from the fact that the urgency of the application prevented such an issue from being traversed in any meaningful way, it simply was not relevant.

There is no evidence that Shell’s exploration affected the practice of the applicant communities’ culture or religion. It is as Ivo Vegter said. The law is not there to protect dead people living in the sea.

Reasonably soon

Judge Bloem ignored this, as he did the decision of the Constitutional Court in Doctors for Life to the effect that consultation-based challenges have to be brought reasonably soon after a decision is made. This challenge was brought eight years after Shell was given its exploration rights and after Shell had commenced the very expensive business that is marine seismic exploration.

The result was what in my opinion was a thoroughly bad judgment that would have been challenged and overturned by a higher court if this was possible. But it is not possible because an order granting an interim interdict can only be appealed where it is in the interests of justice to do so.

This means in practice that new facts have to emerge that persuade the judge to change his or her mind. It is unlikely that in the absence of those new facts, a judge will make what amounts to a concession that the original order was wrongly granted, no matter how incorrect it may be.

This did not discourage the Minister of Mineral and Energy Affairs as well as two of the other respondents from making the attempt. Shell wisely declined to do so given that Judge Bloem dismissed the application in a judgment handed down on 17 February 2022.

The Applicants in the first Shell case have applied to appeal against the judgment of Judge Govindjee. Different rules apply to the refusal of an application for an interim interdict, so it is likely that Judge Govindjee will grant leave to appeal his decision. 

Predicting the outcome of an appeal has always been a high-risk endeavour. This is especially so in this modern age of increasing judicial activism. However, I think that the quality of Judge Govindjee’s judgment is so manifest that it should be upheld on appeal.

Confused and unworkable

This will hopefully bring much-needed clarity to what is presently a confused and unworkable aspect of our law.

In the meantime, South Africa is going to have to live with the consequences of the fact that the fossil fuel industry no longer considers the country an investment proposition. This is not only going to make most South Africans poorer, it will also make it much more difficult to solve our current energy crisis.

The views of the writer are not necessarily the views of the Daily Friend or the IRR

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Ian Cox is an attorney in Durban, specialising in commercial law. In recent years he has become increasingly involved in the constitutional and administrative law aspects of environmental law-making. His particular area of interest is conflict between the ‘nature first’ or biocentric perspective adopted by conservationists and the ‘people first’ or anthropocentric sustainable development approach required in terms of the Constitution. In this capacity, he has taken on both an activist and advisory role in the fight to prevent trout from being declared an invasive species, and has helped the freshwater aquaculture industry challenge attempts to unreasonably regulate its industry. He has also advised elements in the game ranching industry. In his personal capacity, he made submissions to the High Level Panel on game breeding, hunting and trade.