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Shell’s final lifeline

Once an exploration permit is granted, the holder of the permit is able to apply for up to three renewals, after which they must start the costly and time-consuming process from scratch.

Shell and Impact made their final application to renew the exploration right in 2023. While the SCA and the High Court both agreed that the exploration right had been granted unlawfully, Wilmien Wicomb a lawyer at the Legal Resources Centre, a human rights organisation representing the Wild Coast communities, explained that the SCA found it too harsh to force Shell to start their application process from scratch. Thus, the court allowed the minister of mineral resources and energy to grant Shell’s renewal application at his discretion.

In response, the communities approached the Constitutional Court to appeal the SCA decision. In her founding affidavit to the court on behalf of the applicants, Wicomb argued the SCA order “had the potential to undermine the right to meaningful consultation” and could allow a seismic survey to take place despite the fact that the initial exploration right was granted after a “fatally flawed consultation process”.

The applicants also asked the Constitutional Court to clarify whether the SCA was able to suspend the High Court’s order or not. “When they applied in 2014 you only needed an environmental management programme … then the law changed,” Wiccomb explained. “You now need an environmental authorisation. But what the law also says is you cannot commence any activity, like seismic activity, without an environmental authorisation.”

At the same time, Shell and Impact also approached the Constitutional Court with their own appeal against the SCA findings that their exploration permit was granted unlawfully.

While the Constitutional Court dismissed Shell and Impact’s appeal, the appeal brought forward by the Wild Coast communities and their supporters was granted, with a court date likely to be set for early next year.

If the Constitutional Court upholds the appeal brought by the communities, Shell will have to start the entire application process from scratch if they still wish to extract oil and gas in the waters offshore from the Wild Coast and Dwesa-Cwebe.

For its part, Shell sees the potential exploration as a good thing. “South Africa is currently reliant on energy imports for many of its energy needs. Should viable resources be found offshore, this could significantly contribute to South Africa’s energy security and the government’s economic development programmes,” Shell’s spokesperson, Pam Ntaka, told Al Jazeera when asked about the court processes.

Gwede Mantashe, South Africa’s minister of mineral resources and energy, is unhappy about the obstacles to exploring for oil and gas. In his speech at the Africa Oil Week: Investing in African Energy Conference this month, he said a “main hindrance or risk to these projects being realised” was “the unabated and frivolous litigation against the exploration and production of oil and gas”.

He dismissed the legitimacy of the concerns of the communities, instead attributing them to “foreign-funded lobby groups and non-governmental organisations (NGOs)”.