Sustaining the Wild Coast NPC and Others v. Minister of Mineral Resources and Energy and Others

On November 29, 2021, four environmental and human rights organizations (Sustaining the Wild Coast NPC, Mashona Dlamini, Dwesa-Cwebe Communal Property Association and four others) filed an application in the High Court of South Africa (Eastern Cape Division, Grahamstown) against respondents Minister of Mineral Resources and Energy, Minister of Environment, Forestry and Fisheries, Shell and Impact Africa. The application sought an interdict prohibiting the respondents from proceeding with the seismic survey off the eastern coast of South Africa from 2021-2022. The seismic survey pursued by Shell and Impact Africa followed an exploration right granted on April 29, 2014. It aimed at providing imaging of the subsurface to determine whether there might be energy reserves below the sea floor. To succeed in their application, the applicants must establish: (i) at least a prima facie right (ii) a reasonable apprehension of irreparable and imminent harm of the right if the interim interdict is not granted; (iii) balance of convenience; and (iv) lack of an alternative satisfactory remedy. In October 2021, Shell’s consultants gave notice of Shell’s intention to undertake a 3D seismic survey along the south-eastern coast. Following a public outcry, activists and affected communities approached the Eastern Cape High Court for an urgent interdict preventing Shell from proceeding with the seismic survey (Part A), pending the outcome in the present application (Part B). On December 17, 2021, the South African High Court held a hearing on Part A (an application for an interdict where the Applicants sought an order interdicting the 3rd, 4th and 5th Respondents from proceeding with a seismic survey pending the finalization of the relief). The Court delivered the judgement on December 28, 2021. The Court found that these requirements for an interdict were satisfactorily met by the applicants. It ruled that the exploration right which was awarded without regard to the applicants’ right to meaningful consultation constitutes a prima facie violation of their right which deserves to be protected by way of an interim interdict. The Court agreed that there is reasonable apprehension of irreparable harm and imminent harm of the right as the seismic survey will promote extraction of fossil fuels and adversely impact climate change, the applicant communities’ cultural practices, ocean conservation, and the spiritual and sustainable use of ocean for healing and fishing purposes. It acknowledged the concern of the communities that seismic survey will lead to exploration without climate impact assessment, a development that is inconsistent with South Africa’s agreement at the 2021 COP26 to move away from hydrocarbon-based energy towards climate friendly renewables. While finding the balance of convenience to be in favor of the applicants, the Court reasoned that the financial loss that respondents, especially Shell and Impact Africa, are likely to suffer cannot compare with the adverse effects of infringement of the constitutional rights of the communities. Finally, the Court reasoned that the procedure contemplated under section 47 of the MPRDA and argued by the respondents as a remedy is unacceptable in that it is a time-consuming procedure. If followed, it would allow the continuous threat of infringement of the applicants’ rights. A hearing on the main application is scheduled for May 2022. Shell and Impact Africa appealed the judgment of the High Court. On February 17, 2022, the judge dismissed the application. A hearing regarding Part B of the case was held on May 30-31, 2022. The High Court of South Africa (Eastern Cape Division, Makhanda) delivered the judgment on September 1, 2022. The principal question was whether the grant of an exploration right for oil and gas, resulting in the need to conduct a seismic survey along the South Coast of South Africa was lawful. The court was satisfied that the grounds for review in terms of the Promotion of Administrative Justice Act 3 of 2000 with regards to the granting of the exploration right were met and it was thus set aside, together with the right to renew. The judgment had the effect of setting aside an exploration right that would have enabled Shell to conduct seismic surveys off South Africa’s coastline, in its search for oil and gas reserves. In regard to the climate change impacts of the proposed seismic surveys, the Court referred to the applicants’ submissions regarding observed climate change impacts – including more unpredictable weather patterns and more extreme weather events – as well as expert testimony relating to unburnable fossil fuel reserves (i.e., most fossil fuel reserves should remain unextracted in order to limit the global temperature increase to 1.5 degrees Celsius) and the inconsistency of further oil and gas exploitation with South Africa’s international climate change commitments. The Court also found that the decision-maker had failed to take into account the considerations referred to in the Integrated Coastal Management Act 24 of 2008, which obliges the State, as the public trustee of coastal public property, to ensure that coastal public property is managed and conserved on behalf of all South Africans, including future generations. Shell and Impact Africa appealed this ruling to the Supreme Court of Appeal, which issued its judgment on June 3, 2024. The Supreme Court of Appeal upheld the High Court’s judgment that the granting of the exploration right was unlawful, but suspended the order setting aside the right. In this decision, the Supreme Court of Appeal permitted Shell to pursue a third renewal application for the right. Specifically, the Supreme Court of Appeal ruled that the High Court failed to consider just and equitable relief under section 172 of the Constitution and ruled under a “far-reaching finding” establishing oil and gas exploration as inconsistent with “South Africa complying with its international climate change commitments.” On July 2, 2024, the plaintiffs filed an appeal to the Constitutional Court, challenging the Supreme Court of Appeal’s decision to suspend the invalidation of the exploration right. The plaintiff contended that the ruling failed to uphold the right to just administrative action while allowing Shell to mend a consultation process that was already deemed constitutionally unlawful. On August 27, 2024, the Constitutional Court granted leave to the plaintiffs while refusing Shell and Impact Africa’s application for leave. The Constitutional Court has now issued directions for further proceedings to determine if the Supreme Court of Appeal’s ruling can be considered just and equitable under the Constitution and administrative laws.