On August 27, the Constitutional Court (ConCourt) of South Africa dismissed the appeals by Shell and Impact Africa against a ruling by the Supreme Court of Appeal (SCA), which had upheld a prior High Court decision that declared their exploration rights for seismic surveys off the Wild Coast were unlawfully granted.
However, the Court has agreed to hear an appeal by Wild Coast communities and environmental justice organisations who argue that the SCA’s decision to allow the Minister of Mineral Resources and Energy, Gwede Mantashe, to consider renewing the exploration permit is not “just and equitable”.
The Makhanda High Court previously found that Shell’s exploration right was unlawfully granted due to a lack of consultation with affected communities and the neglect of significant considerations such as the right to food, livelihoods from the ocean, cultural rights, and climate change impacts.
The court ruled that the Minister failed to comply with the Integrated Coastal Management Act (ICMA), resulting in the setting aside of Shell’s exploration rights entirely.
Despite this, the SCA upheld the High Court’s judgment but suspended the order to set aside the exploration right pending a decision on Shell’s third application to renew it.
The Court further highlighted the failure to comply with the ICMA, leading to the complete setting aside of the exploration right.
While the SCA upheld this judgment, it controversially allowed the Minister the discretion to decide on the renewal of Shell’s exploration permit, a decision now being challenged in the Constitutional Court.
The Wild Coast communities, along with organisations like Sustaining the Wild Coast, All Rise Attorneys, Natural Justice, and Greenpeace Africa, argue that the SCA’s order effectively gives Shell an opportunity to rectify its flawed consultation process from over a decade ago – an action they believe the law does not permit.
In their legal submissions, the communities and environmental groups argue that the SCA’s decision does not adequately protect their rights to fair administrative action, as enshrined in the Constitution.
They contend that the ruling is constitutionally impermissible, legally flawed, and fails to provide clear guidance on how Shell or the minister should address the earlier procedural defects.
This ambiguity, they argue, will likely lead to further legal battles, creating ongoing uncertainty for the affected communities.
The SCA had reasoned that completely overturning the exploration right was “too harsh”, offering Shell a second chance through the renewal process.
However, the appellants maintain that there was no need for the SCA to soften the impact of its decision, as the original judgment had correctly set aside the unlawful exploration right in its entirety.
This case raises significant constitutional questions about the appropriateness of “just and equitable relief” in instances where a decision has been declared unlawful.
In a nutshell, the ConCourt dismissed Shell and Impact Africa’s appeal with costs. “They were appealing the High Court and the SCAs findings that the exploration right was granted unlawfully,” explained attorney Rick Stone of Cullinan and Associates.
“The ConCourt accepted our appeal on the SCAs suspension order, which afforded Shell and Impact Africa a lifeline by allowing the minister to consider the third and final renewal application provided it was preceded by a consultation process.”
Could Shell and Co reapply for an exploration permit and be granted the permit if they manage to adhere to ICMA guidelines? “No. It’s the decision maker, the DMRE, that needed to consider the ICMA at the stage that the initial decision was made,” Stone answered.
But, they did not and as a result “made a fatal concession to that effect in their affidavits”.
“It’s called an error of law and there is no way around it except for deciding the application afresh and considering the ICMA.”
Right, can that happen? Can a fresh application be submitted and considered? “That can’t happen,” Stone assured me.
“Currently there is a ministerial gazetted moratorium on offshore exploration rights, which is one of the reasons why the SCA made the suspension order.”
The Constitutional Court’s forthcoming judgment could set a precedent for how South African courts balance the need for justice with the principles of fairness in cases involving environmental and community rights.
The date for the Constitutional Court hearing has yet to be determined.
IOL