MyPE

Community Business Directory, Event Listings, News and Views from Gqeberha, Nelson Mandela Bay

Constitutional Court Dismisses Shell’s Cross-Appeals

By

Constitutional Court will hear appeal of Wild Coast communites, Environmental Justice organisatons against SCA order; dismisses Shell and Impact Africa’s cross-appeals.

On 27 August 2024, the Constitutional Court handed down an order dismissing the applicatons for appeal of Shell and Impact Africa against the judgment of the Supreme Court of Appeal (SCA), which upheld the High Court’s decision that their exploraton right to do seismic surveys off the Wild Coast was granted unlawfully. Wild Coast communites, Sustaining the Wild Coast, All Rise Attorneys, Natural Justice and Greenpeace Africa also filed applicatons to the Constitutional Court to appeal against the order of the SCA. While the SCA upheld the High Court’s judgment, it held that it would be “just and equitable” to allow the Minister of Mineral Resources and Energy to stll decide Shell’s third applicaton to renew the problematc exploraton permit.

The Makhanda High Court found that the right was granted unlawfully because of the failure to notfy and consult affected communites, and that relevant consideratons, such as the communites’ right to food and livelihoods from the ocean and their spiritual and cultural rights, as well as the climate change impacts, were ignored. In additon, the Court found that the Minister failed to consider and comply with the requirements of the Integrated Coastal Management Act. It set aside the exploraton right entrely. The SCA agreed, and the Constitutional Court has now put an end to the queston dismissing Shell and Impact’s attempt to appeal those findings.

The only queston that remains, and that the Constitutional Court will hear at a date to be determined, is whether the SCA was enttled to order that, despite the exploraton right being unlawful, that the Minister could stll decide to grant a renewal of that right. In their papers filed in the Constitutional Court, the Wild Coast communites and environmental justice organisatons argue that the SCA’s order is not “just and equitable” as is required by the Consttuton. The communites say that the order is an attempt to give Shell the chance to make up for their failed consultaton process when it applied for the right over a decade ago. They argue that the law does not allow such a late redempton.

The environmental justice organisatons further argue that the SCA order is constitutonally impermissible and legally incompetent, and should be set aside by the Constitutional Court. The Wild Coast communites and environmental justice organisatons argue that the SCA’s order does not effectvely protect the rights of the communites and other partes to fair administratve acton, nor the communites’ consttutonally protected rights to their livelihoods and their cultural and spiritual rights. In additon, the order fails to provide any clarity on what Shell and the Minister must do to remedy the defects of the earlier processes, which means that, inevitably, more litgaton will follow. To be just and equitable, an order must at least be clear.

The SCA found that a complete se?ng aside of the exploraton right was “too harsh” and has hence provided Shell with this new opportunity to have the right granted through its renewal process. However, the organisatons argue that there is no need for the SCA to “ameliorate the harshness” of an order se?ng aside the impugned decisions.

This case raises important consttutonal questons about the appropriateness of the “just and equitable relief” granted by the SCA in the exercise of its remedial powers in terms of secton 172(1)(b) of the Consttuton. This has implicatons for the broader public, as it may determine how courts provide remedies in court cases when a decision has been declared unlawful.

The following two tabs change content below.

Port Elizabethan

This author is a 'catch-all' for occasional articles and letters written to MyPE. The Author of each article can be found in the signature at the bottom of each individual article.