Shell Exploration and Production South Africa BV and associated entities obtained an exploration right in 2014 to explore for oil and gas off the Eastern Cape coast. The environmental management programme (EMP) was approved in 2013 following a consultation process. In December 2021, Shell commenced a seismic survey off the Wild Coast using airgun arrays to generate sound waves. The applicants - comprising NPCs, traditional communities, communal property associations, individual fishers and traditional healers from coastal communities (including Amadiba, Dwesa-Cwebe, Sicambeni, and Kei Mouth) - sought an interim interdict to halt the survey. The applicant communities are customary fishers who depend on the sea for sustenance, livelihood, and cultural/spiritual practices. They alleged they were not meaningfully consulted about the survey. The consultation process relied on newspaper advertisements in English and Afrikaans, meetings with traditional "Kings," and meetings held in distant urban centres (Port Elizabeth, East London, Port St Johns), not in the affected communities themselves. The applicants only learned of the survey through media in November 2021, eight years after the exploration right was granted.
The third, fourth and fifth respondents (Shell entities) were interdicted from undertaking seismic survey operations under Exploration Right 12/3/252 pending the finalisation of Part B of the application. The first respondent (Minister of Mineral Resources and Energy) and the fifth respondent were ordered to pay the costs of the interim interdict application jointly and severally, including costs of three counsel where employed. The application was postponed sine die for determination of the relief sought under Part B (which would address whether Shell requires a NEMA environmental authorisation).
The binding legal principles established are: (1) Meaningful consultation under the Mineral and Petroleum Resources Development Act requires: (a) informing affected communities in languages they understand and through accessible media; (b) holding consultations in the affected communities themselves, not distant urban centres; (c) engaging with community members directly rather than assuming traditional leaders can speak for all; (d) respecting customary law consultation processes including consensus-seeking; (e) providing sufficient detail about proposed activities to enable informed representations; and (f) genuine engagement in good faith to reach accommodation regarding impacts. (2) An exploration right granted on the basis of a substantially flawed consultation process is unlawful and invalid. (3) Where constitutional rights (particularly environmental and cultural rights under ss24, 30, 31) are at stake, the balance of convenience in an interim interdict application favours protection of those rights over financial considerations. (4) The precautionary principle applies in environmental matters where there is scientific uncertainty about harm, and the burden lies on the party arguing against its application. (5) Customary fishing rights and the cultural/spiritual relationship between indigenous communities and marine environments constitute prima facie constitutional rights worthy of interim interdict protection. (6) Expert evidence on environmental harm will be accepted where not adequately rebutted by equivalent expert evidence. (7) Mitigation measures must be current and adequate in light of the best available scientific knowledge, not outdated assessments.
Bloem J made several important non-binding observations: (1) The Minister's public statement characterising objections to the seismic survey as "apartheid and colonialism of a special type" raised concerns about his impartiality and suggested he had prejudged the matter, making the alternative remedy of seeking cancellation under s47 of the MPRDA illusory. (2) Shell's approach of consulting only with "Kings" derives from colonial and apartheid-era attitudes and is inconsistent with modern constitutional values and customary law. (3) The question of whether the EMP constitutes a NEMA environmental authorisation (as argued by the Minister) involves difficult legal issues that should be determined at the final hearing rather than the interim stage. (4) The court noted that courts have a duty to investigate allegations of unlawfulness and constitutional rights infringement as soon as reasonably possible, as allowing continuation of unlawful conduct would offend the rule of law. (5) The judgment implicitly criticises Shell for conducting inadequate "stakeholder analysis" and failing to identify numerous small-scale and subsistence fishing communities along the affected coastline. (6) The court acknowledged that customary practices and spiritual beliefs about ancestors residing in the sea may be difficult for some to comprehend, but emphasised that courts must accept and respect these practices and beliefs without requiring them to be justified or explained.
This judgment is highly significant for South African environmental and constitutional law. It affirms that: (1) Meaningful consultation with affected communities, particularly indigenous and customary communities, is a constitutional imperative that cannot be satisfied through tokenistic engagement with traditional leaders or inaccessible consultation processes. (2) Consultation processes must respect customary law principles, including consensus-seeking traditions. (3) Constitutional environmental rights (s24) and cultural rights (ss30-31) can override significant economic interests and financial losses. (4) The precautionary principle is a key tool in environmental protection where scientific uncertainty exists. (5) Courts will scrutinise the adequacy of environmental management programmes and mitigation measures, particularly where expert evidence demonstrates they are outdated or inadequate. (6) Customary fishing rights and the cultural/spiritual relationship between indigenous communities and the environment warrant strong legal protection. (7) The failure to consult in accordance with constitutional and statutory requirements can render an exploration right unlawful and invalid. The case represents a significant victory for community rights, environmental protection, and the recognition of indigenous knowledge systems in South Africa's legal framework. It establishes important precedent for how consultation must be conducted in environmental and resource extraction projects affecting customary communities.