Shell Review Appeal in South Africa. © Natanya Harrington / Greenpeace
© Natanya Harrington / Greenpeace

02 July 2024: Wild Coast communities, Sustaining the Wild Coast, All Rise Attorneys, Natural Justice and Greenpeace Africa have, last week, filed petitions in the Constitutional Court to appeal against the order of the Supreme Court of Appeal (SCA) in the legal battle over Shell’s exploration rights which allows them to conduct seismic testing on the Wild Coast of South Africa.

In the SCA, a successful High Court judgment was upheld, but the order to set aside the exploration right granted to Shell was suspended, pending a decision by the Department of Mineral Resources and Energy on Impact Africa and Shell’s third application to renew the right.

The Makhanda High Court found that the right was granted unlawfully because of the failure to notify and consult affected communities, and that relevant considerations, such as the communities’ right to food and livelihoods from the ocean and their spiritual and cultural rights, as well as the climate change impacts, were ignored. In addition, the Court found that the Minister failed to consider and comply with the requirements of the Integrated Coastal Management Act. It set aside the exploration right entirely.

In their papers filed in the Constitutional Court, the Wild Coast communities and environmental justice organisations argue that the SCA’s order that allows the Minister to adjudicate Shell’s latest renewal application of the disputed exploration right, is not “just and equitable”, as is required by the Constitution. The communities say that the order is an attempt to give Shell the chance to make up for their failed consultation process when it applied for the right over a decade ago. They argue that the law does not allow such a late redemption. 

The environmental justice organisations further argue that the SCA order is constitutionally impermissible and legally incompetent, and should be set aside by the Constitutional Court.

The Wild Coast communities and environmental justice organisations argue that the SCA’s order does not effectively protect the rights of the communities and other parties to fair administrative action, nor the communities’ constitutionally protected rights to their livelihoods and their cultural and spiritual rights. In addition, the order fails to provide any clarity on what Shell and the Minister must do to remedy the defects of the earlier processes, which means that, inevitably, more litigation will follow. To be just and equitable, an order must at least be clear. 

The SCA found that a complete setting aside of the exploration right was “too harsh” and has hence provided Shell with this new opportunity to have the right granted through its renewal process. However, the organisations argue that there is no need for the SCA to “ameliorate the harshness” of an order setting aside the impugned decisions.

The communities and organisations also noted an appeal against the failure of the SCA to deal with their cross-appeal which concerned the question as to whether Shell was required to obtain an environmental authorisation under the National Environmental Management Act before it could conduct its exploration activities. 

The SCA’s order appears intended to grant Shell an opportunity to conduct exploration activities – without the question of the need for an environmental authorisation having been answered.

This case raises important constitutional questions about the appropriateness of the “just and equitable relief” granted by the SCA in the exercise of its remedial powers in terms of section 172(1)(b) of the Constitution. This has implications for the broader public, as it may determine how courts provide remedies in court cases when a decision has been declared unlawful.

Says Sinegugu Zukulu from Sustaining the Wild Coast, “We hope the Constitutional Court will be able to hear our voices about how critical it is to protect marine ecosystems for both livelihoods and for the sake of marine living resources. We hope the Justices realise that the time for fossil fuels is over as is continually articulated year after year by the IPCC reports. We believe the Constitutional Court is the right court to uphold our rights to a safe and healthy environment protected for sustainable development.”

“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,” stated Wilmien Wicomb from the Legal Resources Centre.

Melissa Groenink-Groves from Natural Justice says “It is imperative in the public interest that the Constitutional Court makes a final ruling on the commercial repercussions of infringing Constitutional rights, in circumstances where communities are unable to meaningfully engage in decisions that will directly affect them.  What is just and equitable to those whose rights have been infringed should be the central consideration, and not the bottom-lines of multinational companies.”

Cynthia Moyo, Climate and Energy Campaigner, Greenpeace Africa, states that, “The Supreme Court of Appeal’s decision fails to deliver justice and uphold the constitutional rights of the Wild Coast communities. Shell’s seismic testing poses a significant threat to their livelihoods, cultural heritage, and the environment. Our appeal to the Constitutional Court seeks to ensure that the voices of the affected communities are heard, their rights are protected, and people are prioritised before profit.”

ENDS

Notes to editors

MEDIA ADVISORY: https://naturaljustice.org/media-advisory-shell-case-in-supreme-court-of-appeal/

COURT PAPERS: https://naturaljustice.org/saving-the-wild-coast/