When the Constitutional Court handed down its final judgment against Shell and Impact Africa’s Wild Coast exploration right in August, it brought an end to nearly five years of exhaustive litigation.
Across every stage of this matter, from urgent interdicts to reviews and appeals, a total of 19 judges across three separate courts scrutinised thousands of pages of evidence. Throughout this rigorous legal process, one single fact was never in doubt: the exploration right granted to Shell and Impact Africa was unlawful from the start.
It was unlawful because the applicant companies failed to meaningfully consult the local coastal communities whose lives, livelihoods, customary rights, and cultural heritage would be directly impacted. It was unlawful because the decision makers failed to properly consider relevant economic, cultural, and climate-related factors as required by South African law.
Three separate courts confirmed that public consultation under our Constitution is not an optional courtesy, nor is it an administrative box to be ticked after corporate plans are finalised. It is a mandatory legal prerequisite. The law requires that communities who have lived on and sustained themselves from these lands and seas for generations must be informed, engaged, and heard before rights are granted.
When multinational corporations choose to bypass these statutory requirements, they create their own legal exposure. Both the corporate applicants and the state had every opportunity over a decade to comply with the laws of South Africa. They failed to do so and that failure rests solely with them.
Rather than accepting legal accountability, proponents of these projects have repeatedly resorted to dangerous rhetoric. Following the judgment, groups like the African Energy Chamber denounced the court’s decision as part of a “pattern of lawfare.” This echoes comments by Minister Gwede Mantashe in 2021, who characterised community objections as “apartheid and colonialism of a special type.”
Both these accusations are dangerous, disingenuous and Orwellian. Framing rural communities and small-scale fishers as aggressors engaging in lawfare simply for exercising their constitutional rights is a sinister inversion of reality. It distorts the truth to shield multi-billion-dollar corporations from basic legal accountability, while placing environmental defenders, who often face real physical threats on the ground, in even greater danger. The people of the Wild Coast know about these dangers all too well. It is now just over 10 years since Bazooka Radebe, a local activist opposing a proposed titanium mine in Xolobeni was brutally murdered in front of his family. His killers are still at large.
Most recently, the term lawfare has been deployed by the Israeli government to characterise the efforts of the South African government to hold Israel accountable before the International Court of Justice for their actions in Gaza. Rather than face accountability, or accept that an adverse legal finding has been made, they chose instead to launch an attack on international law and the rules based system itself. The point in that instance, as is the case here, is to shield the powerful from legal accountability for their lawbreaking, and to delegitimize the entirely legitimate efforts of those communities who are using democratic, constitutional and entirely lawful avenues to obtain justice and accountability. The goal of deploying language in this fashion is to undermine the rule of law and to attack the institutions who uphold it. It is an assault on our hard won freedoms, and South Africans must guard against it.
The case was thoroughly litigated on Shell, Impact Africa and the government’s behalf, by an army of the most expensive legal talent that money can buy. No stone was left unturned and no argument remained unventilated.
The residents of the Wild Coast did not wage a war, they used our judicial system in precisely the way the framers of our Constitution intended: As a shield for the weak and vulnerable against the abuse of power and a tool to uphold justice.
Our Constitution was written to ensure that the rule of law applies equally to everyone: from rural coastal communities to global energy giants. The outcome of the Wild Coast case does not require complex spin. The exploration permit was granted unlawfully, the courts enforced the law, and the rule of law prevailed.
Delme Cupido is the hub director for the Southern Africa Hub of Natural Justice, with more than 20 years’ experience as a human rights and public interest lawyer, activist and grant maker in the non-profit sector.