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The Supreme Court of Appeal has dismissed an appeal by Shell, Impact Africa and the Department of Mineral Resources and Energy against a high court ruling setting aside the exploration right for the Wild Coast.
The organisation, Natural Justice, said the Court on Monday agreed and upheld the decision of the Makhanda High Court which found that the exploration right was granted unlawfully due to the failure to notify and consult affected communities.
The Makhanda High Court also found that the relevant government Minister failed to consider and comply with the requirements of the Integrated Coastal Management Act.
However, the organisation said there was a disappointing aspect of the ruling by Appeals Court judge, Visvanathan Ponnan who “suspended the setting aside of the exploration right until Shell's final renewal application on the right is finalised.”
Melissa Groenink-Groves, the programme manager at Natural Justice, said the right was renewed twice before, saying “a third renewal application was quietly brought by Shell on 21 July 2023 with no notice to affected communities.”
She said this was a disappointing outcome for the communities and supporting organisations that brought the case to the High Court in December 2021.
Groenink-Groves said these included Wild Coast communities and small-scale fishers, who joined the case and who argued for the outright setting aside of the exploration right based on numerous deficiencies in the consultation and decision-making process.
The organisations included Sustaining the Wild Coast NPC, and All Rise Attorneys for Climate and the Environment NPC, represented by the Legal Resources Centre (LRC) and Richard Spoor Incorporated.
Natural Justice and Greenpeace Africa, were represented by environmental law firm, Cullinan & Associates.
Groenink-Groves said the communities and supporting organisations are considering an appeal to the Constitutional Court.
"It is a peculiar decision of the Supreme Court of Appeal. Firstly, it reaffirms that the decisions to grant the Exploration Right and the renewals were procedurally unfair and failed to take into account numerous important factors.
“These decisions were taken in the absence of input from people most affected by the decisions. Yet, it finds that these deficiencies can be cured through a new renewal decision, a decade later, by a Department whose Minister has already "nailed his colours to Shell's mast," she said.
Groenik-Groves said this strikes at the heart of the Constitutional imperative that the original decision should have been lawful, reasonable and procedurally fair.
“Profits continue to trump people."
One of the organisation's involved in the court action, Sustaining the Wild Coast, said the judgment trumps the constitutional environmental rights of people to a safe and healthy environment.
"It disregards the rights of current and future generations to a climate crisis-free life. It pushes the profiteering by the few over the majority. It overlooks the rights of marine life. Cutting down fossil fuels emissions is urgent for all countries, said Sinegugu Zukulu, a recent Goldman Environmental Award Prize winner.
