On 14 August 2026, the South African Constitutional Court (CC) delivered its decision in The Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others case, bringing an end to the long-running litigation on oil and gas exploration and extraction along South Africa’s Wild Coast. Initially, the dominant concerns in the case were procedural justice and due process principle in the context of meaningful engagement and consultation with the local communities who were going to be directly impacted by the proposed activities. However, as the litigation progressed, climate change also became a prominent and distinct legal concern. In this blog post, I examine how the South African CC brings these two strands together, while paying particular attention to its interpretation of climate obligations and the broader implications of the decision for climate justice and environmental decision-making.

The Wild Coast Litigation: From High Court to the Constitutional Court

The case concerns an exploration right granted to Impact Africa in 2014 for oil and gas exploration along South Africa’s Wild Coast, in which Shell subsequently acquired an interest. This exploration activity includes a seismic survey which enables the detection of the location of possible energy reserves below sea level. However, this survey involves the discharge of pressurised air from its air gun arrays, generating sound waves that may interfere with the rights of local communities which have strong spiritual connections to the ocean and depend on it for their livelihoods and subsistence. As such, according to the Mineral and Petroleum Resources Development Act of South Africa (MPRDA) and its relevant regulations, affected communities have the right to be consulted and to participate in the grant of mining, exploration and production rights that have an impact on them (section 79, MPRDA).

In 2022, the High Court found the administrative decisions granting Impact Africa the exploration right unlawful on three main grounds: (i) there had been no meaningful consultation with the affected communities, (ii) relevant factors such as potential harm to marine and bird life, the communities’ spiritual, cultural and livelihood rights and climate change implications had not been taken into due consideration and (iii) the statutory requirements under the MPRDA had not been properly met. As a result, the High Court set aside the original 2014 exploration right and the renewals. Thus, the legal basis for conducting the seismic survey was removed.

Later, the decision of the High Court was appealed by the Minister of Mineral Resources and Energy, Shell and Impact Africa to the Supreme Court of Appeal (SCA). In its 2024 decision, the SCA largely concurred with the High Court in its findings of the unlawfulness of the grant and renewal of the exploration rights but, at the same time, it also held that the High Court had not properly considered what would constitute a just and equitable remedy under section 172(1)(b) of the South African Constitution. According to the SCA, the failure to take into account relevant considerations such as the detrimental impact of the seismic survey on the affected communities’ spiritual and cultural practices, their livelihood and dependence on the sea for food and income, was the logical corollary of the inadequacy of the consultation process (para 25). 

In such a situation, the just and equitable remedy, according to the SCA, would not be to set aside the exploration right immediately and completely. Instead, a just and equitable remedy would be to suspend the High Court’s setting aside orders while waiting for a decision by the Department of Mineral Resources and Energy on Impact Africa and Shell’s third application to renew the right. The SCA considered that a further public participation process, in the context of the third renewal application, could be conducted to cure the identified defects (para 31).

The decision of the SCA was then appealed to the CC. On 14 August 2026, the South African CC delivered a landmark decision for the Wild Coast communities, ocean justice and environmental rights by reinstating the High Court’s order setting aside the exploration right granted to Impact Africa, as well as its subsequent renewals. As a result, the CC permanently terminated the exploration rights and closed the door for renewals.

From Climate Considerations to Climate Accountability

Already back in 2022, the High Court had held that climate change considerations were relevant to the assessment of whether the exploration right should be granted. Referencing the Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others, the High Court emphasised that the absence of an express statutory requirement to conduct a formal climate change assessment did not preclude a legal duty to consider climate change as a relevant factor in administrative decision-making (paras 124-125). The CC, on the other hand, went considerably further than the High Court in its climate framing, even though the primary legal issue before the CC was the appropriate remedy, as the unlawfulness of the grant of the right had already been established. Nevertheless, the CC took this chance to make important broader observations on climate change and environmental decision-making.

The CC started its analysis by foregrounding the transboundary nature of climate change, which required an engagement with the broader framework of international law, to determine the content and scope of the state’s obligations with respect to the right to a healthy environment, enshrined in section 24 of the South African Constitution (para 21). Then, the CC referred to the three recent advisory opinions from the three major international tribunals, namely, the International Court of Justice (2025), the International Tribunal for the Law of the Sea (2024) and the Inter-American Court of Human Rights (2025), as being authoritative sources in interpreting treaties and customary international law (para 22). The CC further described the three advisory opinions as forming an emerging and coherent body of jurisprudence reflecting a global reckoning with the legal and anthropological implications of climate change (para 22).

Then, explicitly drawing on the advisory opinion of the International Court of Justice, the CC stated that states have obligations under international law to: (i) prevent significant environmental harm, (ii) act with due diligence, (iii) ensure that activities within their jurisdiction or control do not cause significant harm to the global climate system and (iv) make decisions with regard to scientific knowledge, international commitments and foreseeable effects on present and future generations (para 23). According to the CC, where a state authorises activities that materially contribute to greenhouse gas emissions without exercising the requisite level of care, the resulting omission or conduct may be attributable to that state for international responsibility (para 23). The CC concluded that climate change has shifted from being at the margins of environmental diplomacy to the centre of legal accountability, with concrete implications for legal decision-making (para 24).

In my view, paras 20-24 may have three broader implications. First, the CC potentially increases the standard expected of administrative decision-makers by stating that there must be a requisite level of care exercised by the state authorities when authorising an activity that materially contributes to greenhouse gas emissions. Second, the CC makes an explicit link between the domestic constitutional framework and international climate obligations when interpreting the right to a healthy environment. This means that, in future climate change litigation, communities and other rights holders may have stronger constitutional grounds for demanding that climate change, participation, culture, dignity and inequality are taken seriously. Moreover, domestic courts can draw on international climate obligations when assessing the cases before them. Third, the decision also opens the door to arguments that the grant of new fossil fuel exploration rights may itself engage climate accountability. This does not mean an absolute constitutional prohibition on fossil fuel development, but it may require that development decisions be made within a lawful framework that properly considers environmental and climate consequences.

Consideration of Climate Change as an Independent Ground of Unlawfulness

In paras 91-94, the CC assessed the SCA’s finding that the High Court’s remedy was not just and equitable. While the CC agreed with the SCA that the High Court failed to properly undertake the just and equitable remedy inquiry, it disagreed that the defects in the original decision-making process could be adequately cured through further public participation during the renewal process, as they extended beyond mere procedural shortcomings (para 92).

The CC highlighted that, in its analysis, the SCA failed to consider all the review grounds that the High Court found to have existed, which rendered the grant of the exploration right unlawful (para 93(b)). In particular, the SCA failed to consider the failure of the decision-maker to take into account climate change considerations and the Integrated Coastal Management Act, the failure of the decision-maker to apply the precautionary principle and the failure to comply with applicable legal prescripts (para 93(b)). The CC characterised these grounds as not consultation-linked and therefore concluded that further consultation could not remedy them (paras 93(b)-94).

This finding is significant because it confirms that the failure to consider the climate change implications is an independent ground of unlawfulness in the authorisation process. This means that the climate change implications had to be addressed by the decision-maker in their own right and could not be retrospectively cured through renewed public participation. This conclusion reinforces the CC’s broader observations in paras 20-24 where it makes the explicit link between the domestic environmental decision-making and the framework of developing international climate obligations. Read together, these parts of the decision suggest that climate change considerations form an autonomous component of lawful administrative decision-making in the context of fossil fuel exploration.

In addition to its observations on climate change, the CC made broader remarks in relation to the people, the environment and socio-economic development. It also explained why remittal would not constitute a just and equitable remedy or adequately cure the defects in the original decision-making process, including those arising from the inadequate public consultation process. The CC explained that, in the context of the extractive sector, the required balancing exercise cannot be reduced to a simple weighing of cultural, religious, spiritual and environmental concerns against the interests of economic development. Extractive activities take place against the backdrop of a long history of dispossession and marginalisation, in which the rights and interests of affected communities have often been subordinated to the interests of capital. Thus, meaningful consultation must be understood as more than formal compliance with the legal requirements and means placing affected people at the heart of environmental decision-making (para 132).

The CC further rejected the remittal because: (i) the legal landscape (para 134) and the factual circumstances (para 135) had substantially changed since the original application and therefore, reconsideration would effectively allow the companies to construct a fresh case ex post facto (para 138), (ii) treating such a substantively new application as a continuation of the original 2013 application would allow the companies to benefit from the exception to the 2018 moratorium on new applications for offshore oil and gas exploration and production rights which exempted applications lodged before its introduction (paras 139-140) and (iii) Impact Africa had itself contributed significantly to the unlawfulness of the grant of the exploration right through its conduct in the public participation process and Shell could not be considered as an entirely innocent party merely because it acquired its interest at a later stage (paras 141-144).

Bringing Procedural Justice and Climate Accountability Together

The broader significance of Sustaining the Wild Coast decision can be found in the way it synthesises procedural justice and climate accountability in environmental decision-making. While the High Court gave effect to the affected communities’ right to be meaningfully consulted, the CC situated the meaningful consultation requirement alongside an independent obligation on public authorities to consider the climate and environmental consequences when authorising extractive activities. Thus, the decision suggests that legitimate decision-making in the extractive sector requires both the meaningful inclusion of those who are directly affected by these activities and a diligent and legally informed assessment of the environmental and climate implications of the proposed activities.