Johannesburg — South Africa’s Constitutional Court has permanently set aside the exploration right that allowed Shell and Impact Africa to pursue oil and gas activities off the Eastern Cape’s Wild Coast, finding the original authorisation was unlawfully granted and that subsequent renewals could not cure the defects.
Judgment and legal background
The judgment, handed down by Justice Jody Kollapen on 14 August 2026, upheld an earlier finding by the Makhanda High Court in the Eastern Cape in 2022 that the exploration right was granted without meaningful consultation with affected communities.
The Constitutional Court also set aside the original exploration right issued in 2014 and the two renewals that followed. As a result, Shell and Impact Africa no longer hold any right to conduct oil and gas exploration in the area.
| Court | Year / Date | Action |
|---|---|---|
| Makhanda High Court | 2022 | Found exploration right was granted without meaningful consultation |
| Supreme Court of Appeal | (Prior to 2026) | Agreed exploration right was unlawful but suspended order to allow renewal application |
| Constitutional Court | 14 August 2026 | Permanently set aside original right and two renewals |
Reasoning and emphasis
The court found that the defects in the original application could not be corrected retrospectively during a renewal process. It said allowing the project to proceed despite the failures would place commercial interests above constitutional rights.
“Any other remedy would allow financial investment to outweigh grave constitutional violations and would signal that the rights of affected parties are subordinate to commercial interests,” the court said.
The judgment highlighted the particular importance of the cultural, spiritual, environmental and economic interests of coastal communities along the Wild Coast. It found these concerns could not be treated as secondary to the pursuit of exploration activities.
History of the dispute
The decision follows sustained opposition from Wild Coast communities and environmental organisations to seismic surveys conducted in late 2021, linked to the exploration right granted in 2014 by the Department of Mineral Resources and Energy. The case progressed through the courts after affected communities challenged Shell’s plans.
- 2014: Exploration right originally granted by the Department of Mineral Resources and Energy.
- Late 2021: Seismic surveys linked to exploration plans met with community and environmental opposition.
- 2022: Makhanda High Court found consultations were not meaningful.
- 2026: Constitutional Court permanently set aside the right and renewals.
Implications
The ruling strengthens the legal position of coastal communities asserting rights over cultural, spiritual and environmental interests. It establishes a clear precedent that procedural defects in consultation cannot be cured by later administrative processes if constitutional rights have been compromised.
Legally, the judgment narrows the scope for companies to rely on administrative renewals to remedy foundational flaws in rights granted for exploration. Administratively, it places pressure on the Department of Mineral Resources and Energy to ensure that future authorisations comply fully with constitutional standards on public participation.
Environment and community groups that opposed the exploration secured a decisive legal victory. The full practical effect on future oil and gas investment in South Africa will depend on how government departments amend their processes and how other courts apply the ConCourt’s reasoning in subsequent cases.
Details on whether Shell or Impact Africa will seek further legal remedy were not included in the judgment summary. This matter is developing.
