High Court Upholds TGS Orange Basin Seismic Survey Authorisation

On 13 August 2026, the Western Cape High Court (Court) dismissed a review application challenging the environmental authorisation (EA) granted to TGS Geophysical Company (UK)

At a glance

• On 13 August 2026, the Western Cape High Court dismissed a review application challenging the environmental authorisation granted to TGS Geophysical Company (UK) Limited for a seismic reconnaissance survey in the Orange Basin.
• The Court found that the applicants had not established a reviewable failure by the decision-makers to consider material information or relevant statutory considerations.
• It also found that the post-authorisation submission of emergency plans did not render the environmental authorisation unlawful because the underlying risks, mitigation measures and required plan content had been addressed.

The judgment addressed issues concerning the application of the National Environmental Management: Integrated Coastal Management Act 24 of 2008 (ICMA), the assessment of possible future oil and gas activities, and the distinction between judicial review and an appeal on the merits.

Background

On 6 September 2022, TGS applied for an EA in terms of the National Environmental Management Act 107 of 1998 (NEMA) and the Environmental Impact Assessment Regulations for a seismic reconnaissance survey in the Orange Basin off South Africa’s West Coast. To support the application, TGS appointed an independent Environmental Assessment Practitioner, who prepared a basic assessment report (BAR) of more than 300 pages informed by specialist studies addressing, among other matters, underwater acoustics, marine biodiversity, fisheries, social impacts and heritage impacts.

Following a public participation process, the Director-General granted the EA on 17 April 2023, subject to extensive conditions, including compliance with the Environmental Management Programme (EMPr) and various mitigation measures. The decision was subsequently upheld on appeal by the Minister of Forestry, Fisheries and the Environment (DFFE Minister).

Several fishing, environmental and civil society organisations thereafter instituted review proceedings under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), seeking to set aside both the EA and the DFFE Minister’s appeal decision. Although numerous grounds of review were initially advanced, the Court’s judgment ultimately focused on a narrower set of challenges concerning the adequacy of the information before the decision-makers, the Minister’s reliance on input from the Petroleum Agency South Africa (PASA), the consideration of environmental and coastal-management factors, the assessment of future oil and gas activities, and the treatment of emergency-response plans required after authorisation.

The Court’s findings on the key review challenges

Ground 1: Whether the EA was granted without the Director-General having considered all prescribed documentation

• The applicants alleged that the Director-General granted the EA without having the BAR, specialist studies, EMPr and public participation documentation before him. They relied principally on the apparent contents of the Rule 53 record.
• The Court accepted that, while the Rule 53 record might initially have raised legitimate concerns, the EA expressly referred to the BAR and EMPr. The respondents’ affidavits also confirmed that the supporting environmental information had been considered.
• The Court found that the respondents had satisfactorily addressed the applicants’ concerns and accordingly dismissed this ground of review.

Ground 2: Whether the DFFE Minister unlawfully relied on PASA’s input in dismissing the appeals and confirming the EA

• The applicants contended that the DFFE Minister unlawfully relied on input from PASA as though PASA were an independent expert, despite its involvement in the environmental authorisation process.
• The Court found that PASA’s input had been considered in its capacity as an organ of state under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) and the National Appeal Regulations, 2014, rather than as independent expert advice. PASA’s technical submissions were consistent with its statutory mandate under the MPRDA.
• The Court accordingly found no irregularity in the DFFE Minister’s consideration of PASA’s submissions and dismissed this ground.

Ground 3: Whether the decision-makers failed to consider material environmental and statutory considerations

• The applicants argued that the BAR did not adequately address section 63 of ICMA. They also contended that the EA did not refer expressly to ICMA and that the appeal decision stated only in general terms that ICMA had been considered.
• The Court rejected the argument that every factor listed in section 63(1) of ICMA had to be separately identified and discussed. The relevant question was whether the substantive statutory considerations had been addressed.
• In The Green Connection NPC and Another v Minister of Forestry, Fisheries and the Environment and Others (5676/2024) [2025] WCHC (Block 567), the Court held that ICMA introduces concepts that are not present in NEMA or other areas of environmental law and that the decision-makers therefore ought to have set out their ICMA considerations. In the present case, the Court held that the relevant section 63(1) considerations had been addressed in substance.
• The Court also considered it significant that the applicants had not identified a particular environmental impact, conservation threat, adverse effect or prejudice that should have been addressed in the BAR but had been omitted. This ground of review was dismissed.

Ground 4: Whether the decision-makers failed to consider the risks of future oil and gas activities and other material environmental information

• The applicants contended that the need-and-desirability assessment considered the benefits of natural gas production without adequately addressing the risks associated with possible future oil and gas activities.
• The Court distinguished the present case from Block 567 because Block 567 concerned an exploration right, whereas the present application related to a seismic reconnaissance survey. The scope of the assessment had to be determined by reference to the activity proposed and the information reasonably available at that stage.
• The Court also dismissed the alleged deficiencies in the EMPr. Regarding marine and cumulative impacts, it held that administrative decision-makers could not be criticised for failing to consider expert material that did not exist or had not been placed before them when the decisions were made. The applicants’ complaints therefore did not establish a reviewable failure to consider material information, and this ground of review was dismissed.

Ground 5: Whether the post-authorisation submission of emergency plans without public participation rendered the
EA unlawful

• The EA required TGS to submit a shipboard oil pollution emergency plan and an emergency response and medical evacuation plan for approval after authorisation. The applicants argued that this was unlawful because the plans themselves had not been subject to public participation.
• The Court found that the underlying risks, mitigation measures and required content of the plans had already been addressed in the BAR and EMPr and considered during public participation. Their later finalisation therefore did not invalidate the EA, and this ground of review was dismissed.

Key takeaways

The Court dismissed the application and ordered each party to pay its own costs. The judgment records the court’s approach to the review grounds advanced against the EA and the Minister’s appeal decision.

The Court found that the applicants had not established a reviewable failure by the decision-makers to consider material information or relevant statutory considerations. It also found that the post-authorisation submission of emergency plans did not render the EA unlawful because the underlying risks, mitigation measures and required plan content had been addressed in the BAR and EMPr.

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