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Government to fight AgriSA challenge to fracking.

16 May 2019

The Mercury

LYSE COMINS

AGRI SOUTH AFRICA’S legal bid to challenge the government’s decision to turn down appeals regarding fracking applications on farms in KwaZulu-Natal, Free State, Eastern Cape and North West will be opposed by government departments.

AgriSA has launched an application in the North Gauteng High Court to challenge the government’s decision to dismiss 39 appeals against the authorisation of environmental right applications for the exploration of petroleum products on the farms.

It applied to the court for a judicial review and the setting aside of the decision of acting minister of environmental affairs Derek Hanekom in November, to dismiss appeals against the decision by the Petroleum Agency of SA to grant four environmental authorisations to Rhino Oil and Gas Exploration South Africa.

The farmers’ union also asked the court to review the granting of the environmental authorisations by the deputy director-general.

AgriSA and 38 other organisations, including the World Wildlife Fund SA, Dargle Conservancy, Amahlubi Traditional Council, Groundwork Trust and the Bakoena Traditional Council appealed against the decision on the grounds that the landowners had allegedly not been properly notified, objections had been ignored and there was no adequate assessment of extraction methods such as hydraulic fracking, on water sources, biodiversity and smalltown communities.

AgriSA attorney Omri van Zyl argued in his founding affidavit about the technical legalities of the granting of the environmental authorisations.

He argued that the authorisations had been sought for exploration operations, however the scope of the work appeared to be “reconnaissance operations, not exploration operations” in terms of the Mineral and Petroleum Resources Development Act.

He added that there was no listing notice made under the National Environmental Management Act or any other legislative provision which authorised the minerals minister or the environment minister to grant environmental authorisations for reconnaissance operations.

Therefore the environmental authorisations were “ultra vires or incompatible” with the legislation.

Van Zyl argued that the decisions to grant the environmental authorisations and the decision to dismiss the appeals should be reviewed in terms of the Promotion of Administrative Justice Act because they were “materially influenced by errors of law”, or “they contravene a law or are not authorised by the empowering provision” and alternatively “because they infringe the principle of legality in the Constitution”.

The Department of Mineral Resources said yesterday that it “intends filing opposing papers”.

Department of Environmental Affairs spokesperson Albie Modise said the minister was “still weighing her options with respect to the matter”.

Rhino Oil and Gas South Africa chief operating officer Phillip Steyn declined to comment.