The court case that could reshape South Africa’s energy and environmental future

In a case that pits environmental rights against economic promise, coastal communities along South Africa’s Wild Coast have taken Shell to the Constitutional Court.

The dispute centres on offshore seismic surveys and potential oil exploration, with the plaintiffs arguing that proper consultation and environmental safeguards were never satisfied.

Shell, supported by a renewed exploration permit issued by the government, asserts that the process is being lawfully followed. The outcome could reshape South Africa’s energy and environmental future.

The case dates back to 2022 when the Makhanda High Court ruled that Shell’s exploration permit was invalid because the public consultation process was procedurally defective.

However, the Supreme Court of Appeals granted Shell the right to apply for a renewal of the right while still acknowledging the right was unlawfully granted due to inadequate consultation. 

This meant Shell had permission to renew the exploration right, contingent on fulfilling consultation obligations.

Communities and environmental groups had none of it, arguing that this did not go far enough.

They brought the matter to the Constitutional Court to challenge the lawfulness of the exploration rights in light of constitutional protections for environment, public participation and the rights of coastal communities

Economic promises and risks

Proponents of the Shell exploration argue the project could bring substantial economic benefits for both national and local economies. Potential oil or gas reserves could generate substantial government revenue through royalties, corporate taxes, production sharing and spin-off industries.

In a country still grappling with energy imports, domestic fossil fuel development can improve energy security, reduce foreign exchange outflows and help meet demand, they argue.

At the local level, exploration (if successful) and extraction could bring employment, both directly in oil services, drilling and operations, as well as indirectly through suppliers, logistics and infrastructure.

Better roads, ports, and related services might emerge, Shell and its supporters insist.

Yet, many experts and community voices warn that these benefits often do not materialise in full, especially for coastal, rural, or historically marginalised communities.

Jobs in the oil sector tend to be specialised and temporary during exploration. Permanent positions during exploration often go to highly skilled outsiders.

Unless strong local content rules, training programmes, benefit-sharing agreements and oversight are in place, much of the profit may flow to large corporations and national government, leaving local communities with environmental risks but limited economic rewards.

There is also the argument that gains are outweighed by losses in other economic sectors, such as fisheries, small-scale tourism and cultural heritage.

For many residents of the Wild Coast, fishing is not only an income source but also a way of life.

Seismic surveys, drilling, and potential spills can harm fish stocks and degrade marine ecosystems, threatening long-term livelihoods.

Local ecosystems and marine life

Seismic surveys involve sending loud, intense pulses of sound beneath the ocean floor to map geology.

These can disturb marine mammals such as whales, dolphins, fish, benthic creatures and seabird feeding patterns.

Noise pollution can interfere with navigation, breeding, feeding and even result in physical harm to sensitive species.

Any oil extraction brings risk of spills through accidental leaks or blowouts, resulting in long-term contamination of water, sediments and coastal wetlands.

Such pollution can affect not only biodiversity, but food security, human health and tourism in a scenario where the Wild Coast already features sensitive ecological zones, reef systems, estuaries and culturally important coastal habitats.

Similar projects from other country provide hard lessons. The Niger Delta, in Nigeria, is arguably the most frequently cited example of environmental damage from oil extraction.

Decades of spills, gas flaring and pipeline leaks have led to severe pollution of rivers and wetlands, loss of fishery productivity, human health issues and persistent poverty in local communities.

Remediation has been slow and accountability has been lacking.

In Brazil, the Santos Basin/Pre-Salt advanced offshore drilling has generated major revenues, but ecological concerns persist. Sensitive marine habitats, coral reefs, migratory species and coastline zones are threatened.

Environmental impact assessments cases tend to be large and detailed, but enforcement and oversight remain key challenges.

Then there is Ghana’s TEN and related offshore blocks where environmental impact statements have, in some cases, promised mitigation measures and monitoring.

However, gaps remain in ensuring that these are implemented, and that local communities truly benefit.

These cases indicate that while national economies may benefit, local communities often suffer when oversight, regulations, or benefit-sharing are weak.

Constitutional and policy dimensions

South Africa’s legal framework provides for rights to a healthy environment, and for public participation in decisions affecting environment and community welfare.

The courts have repeatedly emphasised that permits issued without adequate engagement or informed consent can be invalidated.

The plaintiffs in the Wild Coast case argue that Shell’s renewed permit still does not satisfy these legal standards.

Further, constitutional protection for customary rights, fisheries, coastal access and traditional livelihoods are part of the broader landscape in which courts must assess risks.

The case is likely to test how South Africa balances its economic development priorities, such as securing energy, attracting investment, with environmental protection, social justice and climate change commitments.

In conclusion, as the Constitutional Court considers this case, the Wild Coast stands at a crossroads. The decision will reverberate well beyond oil and seismic surveys.

It will influence how South Africa reconciles its urgent development needs with environmental protection, community rights and global climate obligations.

For coastal communities, the stakes are existential. Whether the promises of economic growth can be made real without sacrificing environment and livelihoods remains to be seen.

If the Constitutional Court was to allow Shell to proceed, it should impose certain conditions such as that Shell should set aside funding for any potential damage from the exercise.

Such funding should be available even if Shell was to cease to exist through bankruptcy or other reasons.

Furthermore, the Constitutional Court should ascribed tasks to be strictly undertaken by the government to protect local communities and the environment.

There should be independent monitoring and evaluation of the project funded by Shell.

Such monitoring should happen concurrently and constantly with the implementation of the project, not after, and any findings should be submitted to peer-review to ensure that they are acceptable to an array of scientists.

This way, there could be a fair game between Shell, the government and the plaintiffs. Should be serious environmental problems be found the project should be stopped forthwith.

The monitoring could also ensure that promises of jobs to local communities and overall development are kept.

A complete ‘no’ to the project might send the wrong signal to investors and everyone might come out a potential loser.

• Dr. Enock Sithole is the executive director of the South Africa-based Institute for Climate Change Communication.