Court ruling halts fracking bid

About 800 000ha in KZN is now safe but the company has applications in three provinces

The Western Cape High Court has set aside a prospecting right application, which could have cleared the way for fracking in South Africa had it not been challenged.

The court’s decision can put the brakes on a number of similar prospecting applications.

Fracking has not yet been given the final go-ahead. Yet Rhino Oil and Gas Exploration South Africa, a company headquartered in the British Virgin Islands, has been applying for prospecting rights across millions of hectares of KwaZulu-Natal, the Free State and Eastern Cape. Most of these applications have been granted, including one for 1.6-million hectares in KwaZulu-Natal. This covers some 15 000 farms.

The applications, starting in 2015, fail to mention fracking. In addition, in media responses and public meetings Rhino has said fracking is “not envisaged”.

Fracking is a highly controversial extraction technique because of the environmental damage it does. Chemicals are injected underground under high pressure to crack open rock and release gas. It will only be allowed when government has finished its technical reports. These reports were initiated to work out the full effect of the fracking on the environment, particularly water, and on people. In theory, their findings will lead to debate in Parliament and then a final decision on fracking.

The first of these reports, by the strategic environmental assessment task team, warned that small municipalities would be unable to handle the sudden demand for services and an increase in income that could come with fracking. Other reports have warned about water pollution.

Those opposing Rhino’s application have argued in public consultation meetings, and in court, that the company’s prospecting applications are the first step towards getting fracking in through the back door. This sentiment has led to heated meetings between the company and affected people across KwaZulu-Natal.

The public has been unable to stop the process because the Mineral and Petroleum Resources Development Act gives power to the applicant.

But Normandien Farms, a conglomerate of several dozens farms in KwaZulu-Natal, has managed to stop this process for half of the 1.6-million hectares. Instead of objecting and facing the possibility of being ignored, they went to court over a procedural error by the state.

This came about in May last year, when Rhino put in an application for an exploration right for several properties owned by Normandien. Legally, the state owns any resources below the surface of a property, so it can give out rights to exploit them. Above ground, Normandien mostly has forestry plantations and is building a water bottling plant.

Rhino’s application was accepted by the South African Agency for Promotion of Petroleum Exploration a month after the application. Notice of that should have been sent to magistrates’ courts where Rhino planned to prospect, or placed in the provincial gazette or in regional newspapers — to publicise the decision and to allow for public consultation.

In the few cases where notices were placed outside a magistrate’s court, they did not contain information about affected properties.

Normandien argued in court that this meant they were unable to be part of any public consultation; the law gives interested and affected parties 30 days to lodge any objections to a prospecting right. That countdown starts the day the notices go up.

The petroleum exploration agency belatedly published a notice in the KwaZulu-Natal Government Gazette in late December. In its ruling on Wednesday the court said: “This publication, which is clearly an afterthought on the part of the agency, itself constitutes an illegality.”

The court noted Normandien had been prejudiced because it had to choose between not objecting to the new notice — allowing prospecting to go ahead — or objecting and then giving the whole process legitimacy.

And, said the court: “The longer it takes [to get an objection to court], the more difficult it obviously would be to stop the process.”

The court therefore stopped the entire prospecting process, setting aside Rhino’s initial application to the petroleum agency and everything subsequent to that.

Now 800 000 hectares in KwaZuluNatal is free from the imminent prospect of being opened up for gas extraction. A similar application is being brought against the remaining 800 000 hectares that Rhino has applied to prospect on.

“The prospecting right applications failed to mention fracking”