The Shell Case: A Victory for Social and Ecological Justice in South Africa

Editor’s note: This post was originally published on the Verfassungsblog on 12 September 2022. We are proud to partner with the Verfassungsblog in giving global voice to issues of importance to the African continent.

In 2022, a South African High Court set aside an exploration right, part-held by Shell, which would have enabled Shell to undertake a seismic survey off South Africa’s coastline, to explore for oil and gas reserves. Although the case (Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others) was decided more narrowly on administrative law principles, the judgment holds greater significance as it highlights the importance of civil society activism and the crucial role of the judiciary in upholding constitutionally protected social and environmental rights.

Background to the litigation

In 2014, following a public consultation process and the submission of an environmental management programme, an exploration right was granted to Impact Africa in terms of South Africa’s mineral and petroleum resources legislation. The exploration right was renewed twice and, in 2021, 50% of the participating interest in the exploration right was transferred to Shell. Shell subsequently gave notice of its intention to undertake a 3D seismic survey along the south-eastern coast.

Following a public outcry, representatives of local traditional healers and fishing communities, a communal property association, and non-profit companies approached the High Court for an urgent interdict to prevent Shell from proceeding with the seismic survey (Part A), pending the outcome in the present case (Part B). The applicants were successful in Part A, and an interim interdict to halt the seismic survey was granted in December 2021. The present case was heard in May 2022 and judgment was handed down in September 2022.

The judgment

Relying on the Promotion of Administrative Justice Act 3 of 2000, the applicants successfully argued that the decision to grant the exploration right should be set aside on the basis of: (1) procedural unfairness; (2) the failure to take into account relevant considerations; and (3) the failure to comply with applicable legal prescripts.

In regard to the first ground of review, the applicants argued that Impact Africa had failed to adequately consult with interested and affected communities. The Court had regard to the relevant regulations and the consultation process followed. The Court criticised the top-down approach that had been employed, whereby traditional authorities were consulted to the exclusion of their communities.

The Court also took issue with the fact that notice of the exploration right was only provided in the English and Afrikaans languages, going so far as to suggest that the notice could have been published in I'solezwe lesiXhosa – a Xhosa language newspaper – or broadcast on Umhlobo Wenene – a Xhosa language radio station. The Court emphasised that “meaningful consultations consist … in engaging in a genuine, bona fide substantive two-way process aimed at achieving, as far as possible, consensus” (par. 95). Thus, the consultation process was procedurally unfair and, on this ground alone, the Court held that the exploration right should be set aside.

“…Significant attention has been brought to the importance of meaningfully consulting with affected communities and respecting constitutional rights in cases of proposed fossil fuel extraction.”

On the second ground, the applicants argued that relevant considerations – namely, the anticipated harm to marine and bird life; the spiritual and cultural rights of the communities and their rights to livelihood; and the climate change impacts of the proposed seismic surveys – were not taken into account. In the first place, the Court held that the decision-maker ought to have invoked the precautionary principle (i.e., where there is a risk of environmental harm, incomplete scientific knowledge should not be used as a reason to delay taking action to avoid the harm).

With reference to the applicant communities’ contentions that they are bound to protect natural resources, like the ocean, for present and future generations, and that “the ocean is a sacred site where their ancestors live” (par. 115), the Court held that the remedial measures proposed by Impact Africa and Shell did not address the potential harm to the applicants and their religious or ancestral beliefs and practices.

The Court also 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, and held that: “…had the decision-maker had the benefit of considering a comprehensive assessment of the need and desirability of exploring for new oil and gas reserves for climate change and the right to food perspective, the decision-maker may very well have concluded that the proposed exploration is neither needed nor desirable” (par. 125).

On this ground too, the decision to grant the exploration right fell to be set aside.

Regarding the third ground of review, the Court found that the respondents had failed to comply with the mineral and petroleum resources legislation, because insufficient detail had been provided regarding how the grant of the exploration right would contribute to social upliftment. The decision was thus also liable to be set aside on this ground.

Thus, Shell has been prevented – for now – from undertaking seismic surveys off South Africa’s coastline.

Significance of the judgment

Although it remains open to companies, like Shell, to apply for exploration rights in the future, the case is nevertheless significant. In the first place, significant attention has been brought to the importance of meaningfully consulting with affected communities and respecting constitutional rights in cases of proposed fossil fuel extraction. The litigation also highlights the tension between the imperative of socio-economic development in South Africa – one of the most unequal societies in the world – and the pressing need to halt further ecological degradation.

In this regard, South Africa’s Constitution provides for the right to the protection of the environment, for present and future generations, through reasonable legislative and other measures that promote ecologically sustainable development and use of natural resources alongside economic and social development. The case can also be understood against the background of rising climate litigation, including against carbon majors, such as Shell. Following worldwide trends, climate litigation has recently started to emerge in South Africa.  

In conclusion, despite the more limited application of the Shell judgment, it has been celebrated as a monumental victory for people and the environment. Significantly, the case highlights the importance of civil society activism and the crucial role of the judiciary in upholding the rule of law and ensuring that constitutionally enshrined social and environmental rights are respected and promoted.