The Constitutional Court has set aside an exploration right held by Shell and Impact Africa off South Africa’s Wild Coast after finding that affected communities were not meaningfully consulted.
The ruling overturns a Supreme Court of Appeal remedy that would have allowed further consultation during a renewal process. The Constitutional Court found that consultation more than a decade later could not fix the flaws in the original process.
Communities excluded from consultation
The exploration right was granted to Impact Africa in 2014 and was later renewed. Shell acquired a 50% participating interest in the right in 2021.
The court found serious problems with how affected communities were consulted. Notices were published in newspapers that many residents could not access and were only in English and Afrikaans, despite communities in the area being predominantly isiXhosa-speaking.
Impact Africa’s consultants had also been told by traditional leaders that the broader affected communities needed to be engaged directly. The court found that this did not happen.
Justice Jody Kollapen said thousands of people were excluded from decisions that could affect their livelihoods, culture and relationship with the ocean. He said consultation was linked to the dignity and agency of communities affected by development.
Fresh application needed for future exploration
The Constitutional Court rejected the idea that the existing application could simply continue through another renewal process.
The original application and environmental management programme dated back to 2013. The court said conditions had changed since then, including the proposed operations, environmental impacts, scientific knowledge and the applicants’ financial and technical capacity.
It found that any new decision would require a fresh application, a new consultation process and a new environmental management programme.
The ruling does not permanently stop Shell or Impact Africa from applying for exploration rights off the Wild Coast in future. Any new application would have to be considered under the legal and factual circumstances in place at that time.
Court weighs community rights and financial interests
Shell and Impact Africa told the court they had invested about R1.1 billion in the project. The Constitutional Court said that spending was relevant but should not be given more weight than other factors when deciding what was just and equitable.
Shell said it had noted the judgment and remained committed to responsible offshore exploration, stakeholder engagement and environmental stewardship.
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