5 May 2017
IN WHAT has been described by KwaZulu-Natal agricultural union (Kwanalu) as a “massive victory” for farmers, a Western Cape High Court judge this week set aside a decision taken to accept a company’s application to search for oil and gas in northern KwaZulu-Natal.
In his ruling on Wednesday, Judge Daniel Dlodlo said proper procedures had been flouted in how the SA Agency for Promotion of Petroleum and Exploitation (Pasa) had accepted an application for an exploration right made by Rhino Oil and Gas Exploration SA.
Exploration can lead to hydraulic fracturing (fracking) which has faced resistance from communities, particularly in the Karoo.
Judge Dlodlo set aside Pasa’s acceptance of Rhino’s application and interdicted the company from forging ahead.
The judge was dealing with a court case brought by Normandien Farms against Pasa, a state-owned company which controls the granting of exploration rights, Rhino Oil and Gas and the Minister of Mineral Resources.
Normandien owns various farms in and around northern KwaZulu-Natal and recently established a water bottling plant.
“The founding papers reveal that (Normandien) incurred a capital investment in the region of R40 million to set up a water bottling plant on the farm Albany,” said the judge. “It is feared that if the exploration right is granted, it could well affect such operation and the water extracted from the earth”.
Rhino lodged its application for an exploration in mid-2016.
But Normandien maintained in its case before the court that the processes followed to notify the public about the acceptance of the application had not been done properly.
During proceedings, Rhino’s legal team contended that what Normandien was complaining about constituted “administrative actions” or “preliminary steps en route to administrative act”.
Their lawyers maintained the company had complied with what was required of it.
Judge Dlodlo said that in accordance with the MPRDA (Mineral Resources Development Act), “within 14 days after accepting an application lodged… Pasa must make known and publish this fact in the prescribed manner”.
He said the notices sent out were defective as they did not refer to specific properties that were affected by the application.
Judge Dlodlo emphasised that the Act allowed for “serious inroads upon the rights of a surface owner” and therefore consultation processes had to be carried out in the prescribed manner to ensure that decisions taken were fair.
Kwanalu said Rhino Oil and Gas submitted notices of applications for exploration in the Midlands and in northern KwaZulu Natal, in late 2015 and early 2016 respectively.
“Both applications covered a total area of more than 1.6 million hectares and in excess of 15 000 farms,” the union said.
Union chief executive Sandy la Marque said the ruling was “a huge relief for farmers.
Normandien’s Rob Hoatson said he was pleased with the outcome.
Rhino was not immediately available for comment.