‘Court deals blow to Shell, sets aside Wild Coast exploration right’ 1 September 2022

A high court has set aside a decision by Mineral Resources and Energy Minister Gwede Mantashe to grant Shell an exploration right, which would have allowed it to conduct a seismic survey off the Wild Coast. The ruling was handed down in the Makhanda High Court on Thursday, following a two-day hearing in May. Wild Coast communities and non-profit organisations asked the court to block the proposed seismic survey, which they believe would cause irreparable harm to the environment, as well as to livelihoods and cultural and spiritual practices of communities. They also raised concerns about oil and gas exploration contributing to climate change, which they believe the minister did not consider.

…The court found issues with the efforts taken to consult with communities, which it believes fell short. It also noted areas which the minister did not properly consider. "It is demonstrably clear that the decisions were not preceded by a fair procedure; the decision-maker failed to take relevant considerations into account and to comply with the relevant legal prescripts," the judgment read. The ruling unpacks several procedural issues. Firstly, not all of the affected communities were included in a stakeholder database, to allow them to receive relevant background information. Advertisements about the proposed exploration were shared in newspapers, but only in English and Afrikaans languages. The court noted that these languages were "barely understood" by communities who are Xhosa-speaking.

"Had the consultants and those who mandated them been serious about reaching out to the applicant communities, they would have seen their way clear to utilising a newspaper that is in a language spoken by the majority of people in the area concerned," the judgment read. The court also found that no effort was made to deal directly with members of communities. "… It is evident that the traditional leaders concerned urged the consultants to deal directly with members of the affected communities, to no avail. In any event, the top-down approach whereby kings or monarchs were consulted on the basis that they spoke for all their subjects is a thing of the past which finds no space in a constitutional democracy," the judgment read. The project information had been made available online. But the court noted that a "great number" of the population, especially those in rural communities lack access to computers and similar devices. "The applicant communities are part of those who are still disadvantaged," it said.