Concourt to have final say on Shell’s Wild Coast oil drilling plans

Communities on the Eastern Cape's Wild Coast are heading to the Constitutional Court next month to fight Shell's drilling for oil on parts of the province's coastline.

Sustaining The Wild Coast, Mashona Dlamini, the Dwesa-Cwebe Communal Property Association, Ntsindiso Nongcavu, Sazise Pekayo, Cameron Thorpe and All Rise Attorneys for Justice and The Environment have hauled Mineral Resources and Energy Minister Gwede Mantashe and his forestry, fisheries and environment counterpart Dr. Dion George to the apex court.

The organisations and individuals are challenging part of the Supreme Court of Appeal (SCA) judgment overturning the Eastern Cape High Court ruling setting aside the decision taken by Mantashe’s predecessor, Ngoako Ramatlhodi, taken in April 2014, granting exploration rights initially to Impact Africa and later transferred to Shell for the exploration of oil and gas in the Transkei and Algoa exploration areas.

The SCA also reviewed and set aside the decision taken by the then Mineral Resources and Energy Minister in December 2021 to grant a renewal of the exploration right as well as an earlier August 2021 decision taken to grant a further renewal of the exploration right.

Mantashe and Shell challenged the high court ruling at the SCA but the country’s second highest court dismissed the application for leave to appeal and suspended some paragraphs pending determination of the application submitted on July 21, 2023 pursuant to the Mineral and Petroleum Resources Development Act for the renewal of exploration right.

In addition, Sustaining The Wild Coast, Dlamini, the Dwesa-Cwebe Communal Property Association, Nongcavu, Pekayo, Thorpe and All Rise are challenging the SCA’s reasoning in finding that the high court failed to consider the question of just and equitable relief under the Constitution.

It stated that the high court went so far as to hold that authorising new oil and gas exploration, with its goal of finding exploitable oil and/or gas reserves and consequently leading to production, was not consistent with South Africa complying with its international climate change commitments.

The SCA also found that on any reckoning such a far-reaching finding, which has a sterilising effect and for which there can be no warrant, cannot be endorsed.

It added that the high court erred in not weighing up the relevant factors, while the SCA is empowered to do so.

“There has been an almost eight-year delay between the granting of the exploration right and the review and, acting in reliance on the validity of the decisions, there has been significant financial expenditure in the region of R1.1 billion, dating back to 2012 when Impact applied for its technical co-operation permit (which preceded the exploration right),” the SCA ruled.

According to the court, Shell and Impact provided evidence of the economic and social benefits that will fail to materialise without the exploration being undertaken.

It explained that sight cannot also be lost of the public interest in the finality of administrative decision-making and the degree or materiality of the irregularity or that the long delay and lack of legal certainty may well have a chilling effect on foreign investment.

Arguments in the case are set down for next month.

Cape Times