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

In 2013, Impact Africa Limited applied for an exploration right to search for oil and gas in the Transkei and Algoa exploration areas off South Africa’s Eastern Cape coast. The Minister of Mineral Resources and Energy granted exploration right 12/3/252 on April 29, 2014. The right was renewed in 2017 and again in 2021. Shell Exploration and Production South Africa B.V. and BG International Limited subsequently acquired interests in the project. In October 2021, Shell’s consultants announced an intended 3D seismic survey along the south-eastern coast.

On December 2, 2021, Sustaining the Wild Coast NPC, residents and fishers from affected communities, the Dwesa-Cwebe Communal Property Association and All Rise Attorneys for Climate and Environmental Justice instituted proceedings in the Eastern Cape High Court. Natural Justice and Greenpeace Environmental Organisation subsequently joined the proceedings. The applicants sought an interim interdict preventing the seismic survey pending judicial review of the exploration right and its renewals.

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). On December 28, 2021, the High Court granted the interim interdict. It found that the applicants had established a prima facie right based on the alleged failure to conduct meaningful consultation. It also found a reasonable apprehension of irreparable harm to the affected communities’ cultural and spiritual practices, livelihoods and use of marine resources. The Court held that the balance of convenience favored the applicants and that the statutory process proposed by the respondents did not provide an adequate alternative remedy. 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. Shell and Impact Africa appealed the judgment of the High Court. On February 17, 2022, the judge dismissed the application.

The main review application was heard on May 30-31, 2022. On September 1, 2022, the High Court reviewed and set aside the original exploration right and its two renewals.

The High Court found that the consultation process had been procedurally unfair. Notices were published in newspapers that did not circulate within some affected communities and were written in English and Afrikaans, although the communities were predominantly isiXhosa-speaking. The consultation process had principally involved traditional leaders and other identified stakeholders rather than direct engagement with the broader affected communities. The High Court also found that the decision-maker had failed to consider relevant matters, including possible harm to marine and bird life; the precautionary principle; the communities’ livelihoods and cultural and spiritual relationships with the sea; climate-change considerations; and the requirements of the National Environmental Management: Integrated Coastal Management Act 24 of 2008. It further found that the environmental management programme did not substantiate its statements concerning employment, government revenue and socioeconomic benefits. The Court concluded that the decisions were reviewable under the Promotion of Administrative Justice Act 3 of 2000 and the principle of legality. 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 Minister, Shell, Impact Africa and BG International appealed to the Supreme Court of Appeal. On June 3, 2024, the Supreme Court of Appeal upheld the High Court’s findings concerning the inadequacy of the consultation process and the failure to consider relevant matters. It did not endorse the High Court’s broader statement that authorizing new oil and gas exploration was inconsistent with South Africa’s international climate-change commitments. The Supreme Court of Appeal held that the High Court had failed to consider a just and equitable remedy under section 172(1)(b) of the Constitution after finding the decisions unlawful. In reconsidering the remedy, it took account of the period between the grant of the right and the review proceedings, expenditure of approximately R1.1 billion, asserted economic and social benefits, the companies’ remaining opportunity to seek a renewal and the moratorium on new offshore exploration applications.

Impact Africa and BG International had submitted an application for a third renewal on July 21, 2023. The Supreme Court of Appeal dismissed the appeal against the findings of unlawfulness but suspended the High Court’s orders setting aside the right and its renewals pending determination of that third-renewal application. Its reasons contemplated a further public-participation process as part of the renewal proceedings.

On July 2, 2024, the applicants appealed the suspension order to the Constitutional Court. They also sought to pursue their argument that a separate environmental authorization was required under the National Environmental Management Act 107 of 1998. Shell, Impact Africa and BG International filed conditional cross-appeals challenging the setting-aside of the right and its renewals.

On August 27, 2024, the Constitutional Court dismissed the companies’ conditional cross-appeals. It also declined to hear the environmental-authorization issue because neither the High Court nor the Supreme Court of Appeal had adjudicated it and the Constitutional Court would therefore have been considering it as a court of first instance.

The remaining appeals were heard on September 16, 2025. On August 14, 2026, the Constitutional Court delivered judgment. Kollapen J wrote the majority judgment, with Maya CJ, Mathopo J, Mhlantla J, Musi AJ, Theron J and Tshiqi J concurring. Rogers J wrote a dissenting judgment, in which Savage J concurred. The majority agreed with the Supreme Court of Appeal that the High Court had been required to consider a just and equitable remedy and that its failure to do so permitted appellate reconsideration. However, it held that the Supreme Court of Appeal had misdirected itself in suspending the setting-aside order. The majority identified three problems with the Supreme Court of Appeal’s remedy. First, it treated the defects as if they could be cured principally through further consultation, although the High Court’s findings also included failure to consider climate change, the Integrated Coastal Management Act, the precautionary principle and applicable statutory requirements. Second, it contemplated addressing consultation required at the initial application stage under section 79 of the Mineral and Petroleum Resources Development Act through a renewal proceeding under section 81, which does not provide for consultation of that kind. Third, it did not specify who would conduct the consultation, how it would be conducted or how its results would be incorporated into the renewal decision. The majority held that consultation was part of the affected communities’ right to participate in decisions concerning their land, culture and livelihoods. It found that consultation conducted more than a decade after the original decision would not remedy the failure to consult the communities at the initial application stage.

The majority also considered whether the matter should be remitted for reconsideration under section 79. It held that remittal commonly follows the setting-aside of administrative action but is not automatic. Whether to remit depends on what is just and equitable in the circumstances. The original application and environmental management programme dated from 2013. The majority found that the factual, scientific and legal circumstances had since changed, including through the introduction of the One Environmental System. It held that reconsideration would require updated environmental information, a new environmental management programme and fresh consultation. In its view, this would amount in substance to a new application rather than reconsideration of the existing one.

The majority also considered the companies’ expenditure. It found that Impact Africa had contributed to the inadequate consultation process and that Shell had acquired its interest subject to the legal vulnerabilities associated with that process. It held that the expenditure did not outweigh the other factors relevant to the remedy. The majority further found that remittal would permit the companies to proceed with what was substantively a new application without being subject to the moratorium applicable to new offshore applications. It therefore declined to suspend the invalidity or remit the original application.

The Constitutional Court upheld the appeals, set aside the Supreme Court of Appeal’s order and replaced it with an order dismissing the appeals from the High Court. The effect was to restore the High Court’s setting-aside of the 2014 exploration right and its two renewals. The opposing state and corporate respondents were ordered to pay the applicants’ costs, subject to separate costs orders concerning the environmental-authorization and procedural-record issues.

The majority stated that setting aside the decisions did not amount to a substituted decision refusing exploration on its merits. If the offshore moratorium is lifted or successfully challenged, the companies may submit a new application under the legal and environmental requirements then applicable. The original right, its renewals and the pending third-renewal process cannot provide the basis for future exploration.

In dissent, Rogers J would not have interfered with the Supreme Court of Appeal’s remedial discretion. Alternatively, he would have allowed the responsible decision-maker to determine whether the companies should receive a final three-year exploration period. This could have occurred through a modified third-renewal process or through reconsideration of the original application following fresh consultation, subject to a prohibition on any further renewals. The dissent considered the majority’s remedy equivalent in substance to a substituted refusal and would have required reconsideration of the application after consultation and consideration of all relevant environmental, cultural, social and economic matters.