- On Tuesday, judgment was reserved in the Constitutional Court case brought by communities along the Wild Coast and environmental organisations against oil companies, Shell and Impact Africa.
- Both planned to explore for oil and gas off the coastline of the Wild Coast based on an exploration right received in 2014.
Wild Coast communities and environmental organisations approached the Constitutional Court arguing that an order of the Supreme Court of Appeal (SCA) allowing Shell to renew its exploration right was incorrect and should not stand. In 2022, the High Court found the right to be unlawful and halted the seismic exploration. Shell, Impact Africa and the Minister of Mineral Resources and Energy appealed this judgment, and Shell and Impact Africa applied to renew the exploration right for the third and final time.
In May last year, the SCA agreed with the High Court judgment, but the SCA took the unusual step of providing Shell an opportunity to keep its unlawful right alive through the renewal process – and suspended the High Court’s order setting aside the right, until such time as the a decision is made on the renewal application.
A full day of hearings ended with an air of optimism, as arguments on just and equitable remedy took centre stage. Wild Coast communities and environmental organisations argued that the SCA judgment was not “just and equitable.” An important aspect of the case centred on the issue of the lack of meaningful public participation before the right was granted.
In the Constitutional Court, an important argument was raised about when public participation can happen – at the stage when the right is being renewed, or should it have happened already when the right was first applied for. If Shell and Impact Africa are allowed to continue with their renewal of their exploration right, would public participation at this late stage effectively remedy the original deficit?
South Africa’s Wild Coast is South Africa’s is home to an incredible diversity of marine life, including many threatened fishes. It is also home to a high percentage of endemic species found nowhere else in the world. The offshore reefs are also known to be important spawning grounds for migratory fish species such as geelbek and seventy-four, which have been heavily depleted by intensive fishing effort. Research in the MPA has shown that many important linefish species are more abundant and larger in the no-take zones than in the controlled fishing areas. The research has also proved the benefits of the MPA to nearby fisheries. Large numbers of marine mammals such as dolphins and whales are found in this area, especially during the annual winter sardine run. Juvenile hammerhead sharks also aggregate in this area. Image credit: Danielle Zondagh
Counsel for the communities argued vigorously that suspension of the High Court order constituted an unjustifiable dismissal of the gravity of the rights violated, and that the order setting aside the right should be upheld. Adv Nick Ferreira, representing the environmental organisations, argued that the appropriate remedy by the SCA would have been to dismiss the appeal and uphold the High Court’s ruling, saying that we cannot allow this Court to be “a platform for unpleaded submissions and for turning back the hands of time”. The community objections were based on the defense of their heritage and ancestral lands, with Adv Tembeka Ngcukaitobi SC emphasising that dignity requires that communities have a platform to express these concerns.
If the Court was inclined to make provision for a new consultation process, Ferreira and Ncgukaitobi argued =a proper restoration of these rights can only be achieved through compelling Shell and Impact to commence their application from the beginning.
Shell, Impact Africa, and the Minister of Mineral Resources argued that allowing public participation during the renewal process, by interpreting the legal requirements read together with the SCA judgment, should suffice in curing the initial inadequacies of their exploration right application, and be sufficient to remedy the infringement of Constitutional rights and environmental laws.
Shell’s Counsel, Adv Adrian Friedman, argued that the Constitutional Court has the power to change the terms of the SCA remedy, and “panelbeat the SCA order” to ensure proper consultation in the renewal process.
Adv Ngcukaitobi said regarding Shell’s failed consultation process, “How can they avoid consulting with my clients? Everyone in the industry accepts that the renewal is not the place for consultation.” He went on to emphasise that corners were cut during Impact Africa’s consultation process at the expense of communities.
Adv Nick Ferreira concluded by asking the rhetorical question: Why are Impact and Shell so keen for this Court to “panelbeat” the SCA ruling? He said that the answer is obvious – they don’t want to have to go through the onerous process of consultation required by the law. “They want the easy way out.”
Author: Bryan Groenendaal
