Constitutional Court will hear appeal of Wild Coast communities, Environmental Justice organisations against SCA order; dismisses Shell and Impact Africa's cross-appeals
28 August 2024 : On 27 August 2024, the Constitutional Court handed down an order dismissing the applications for appeal of Shell and Impact Africa against the judgment of the Supreme Court of Appeal (SCA), which upheld the High Court's decision that their exploration right to do seismic surveys off the Wild Coast was granted unlawfully.
Wild Coast communities, Sustaining the Wild Coast, All Rise Attorneys, Natural Justice and Greenpeace Africa also filed applications to the Constitutional Court to appeal against the order of the SCA. While the SCA upheld the High Court's judgment, it held that it would be "just and equitable" to allow the Minister of Mineral Resources and Energy to still decide Shell's third application to renew the problematic exploration permit.
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. The SCA agreed, and the Constitutional Court has now put an end to the question dismissing Shell and Impact's attempt to appeal those findings.
The only question that remains, and that the Constitutional Court will hear at a date to be determined, is whether the SCA was entitled to order that, despite the exploration right being unlawful, that the Minister could still decide to grant a renewal of that right.
In their papers filed in the Constitutional Court, the Wild Coast communities and environmental justice organisations argue that the SCA's order 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.
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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.
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.
