16 September 2025, Johannesburg: 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.
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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?
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.”
Quotes:
“Our advocates did a great job of reminding everyone that this case is about the dignity of our people – the dignity that comes with participation in decisions that directly affect us. And furthermore, that this participation must come at the beginning of the process of a company applying for an exploration right. We have high hopes that the court will affirm our dignity by setting aside the application right, and not pander to the attempts of Shell and Impact Africa to assert economic gain over the dignity, livelihoods and human rights of our coastal fishing communities.” – Sinegugu Zukulu, Sustaining the Wild Coast.
“I’m hoping we win this case, and Shell withdraws. We need the government to hear the voices of the community. Our ocean is not for sale – it’s our sacred place, we live and eat from it.” – Fefekazi Nozaza, from the Port St Johns community.
“We are hopeful that the Constitutional Court will hear the plea for Justice from the communities on the Wild Coast. This coastline means so much to so many people in South Africa. It is a source of their livelihoods, and of a sacred, spiritual and cultural connection to their ancestors and their human dignity, and much more that is of intangible, incalculable value. For Shell, its only value lies in the profit they can extract from its rich waters. This should never be allowed to trump the human and environmental rights of our people.” – Delme Cupido, Director at Natural Justice.
” It is important for companies, in particular powerful multinational corporations, to carry the consequences of their actions. The SCA’s order potentially gives Shell a free pass despite dismally failing to comply with what the law requires for exploration rights. That is not the message we should be sending to corporations, in particular those in the business of fossil fuel extraction. Not only the future of the Wild Coast communities, but of the whole country, depends on it.” – Wilmien Wicomb from the Legal Resources Centre.
“Today, the Apex Court had the challenging opportunity of balancing people versus profit. We’ve seen this all before. But, this time, it feels different. Win or lose, lifeline remedy or not: this case has already had a catalytic impact on public participation processes for new mining related applications, and for that, these courageous communities will go down in history as the ultimate winners in the battle for the soul of South Africa’s oceans.” – Ricky Stone, Cullinans and Associates.
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“For too long, “big oil” has undertaken cursory public engagement, or side-stepped the process completely and deceptively, making the engagement anything but “meaningful”. Today the Constitutional Court heard from counsel that using “legal engineering” (words of Justice Mothopo) does not absolve exploration and prospecting companies from discharging the duty of full and proper meaningful engagement. This is the only way to give legitimacy and credibility to a permit or licence – a process that recognises and respects that the livelihoods, lifestyle, cultural observations and dignity of our people cannot be underplayed or dismissed.” – Eugene Perumal, Greenpeace Africa.
“The march and singing with different organisations outside the courtroom demonstrated the importance for coastal communities of being part of the Constitutional Court case today. People from fishing communities across the country had the chance to share their different struggles.” – Siyabonga Ndovela, Wild Coast resident
“Today was a pivotal day for Wild Coast communities, a day for their struggle against oil and gas giants to be heard by the highest court in the land. After rigorous legal argument in the court, and the voices of communities ringing loudest outside the court, we trust that the Constitutional Court will put human rights above corporate greed to uphold our Constitution.” – Melissa Groenink-Groves, Natural Justice
