Two seismic survey rulings, one day apart, two opposite outcomes

Read side by side, the two rulings may seem contradictory, but read closely, they are not.

SOUTH AFRICA: A West Coast survey was cleared to proceed and a Wild Coast right was killed off for good. The gap between the two rulings comes down to process, timing and how far each case had already travelled through the courts

On 13 and 14 August 2026, South African courts handed down two judgments dealing with the same basic subject, an offshore seismic survey for oil and gas, and reached what look like opposite conclusions. The Western Cape High Court upheld the environmental authorisation for a survey planned off the West Coast. A day later, the Constitutional Court permanently set aside the exploration right behind a long-planned survey off the Wild Coast, refusing even to send the matter back for a fresh decision.

The two cases in brief

The West Coast case concerned a reconnaissance survey planned in the Orange Basin. A fishing co-operative and two environmental organisations challenged the environmental authorisation on review, arguing that the decision makers had not properly considered the required information and had unlawfully relied on outside input.

The High Court dismissed the challenge, finding that the underlying assessment report was thorough, that the decision makers had genuinely engaged with it, and that the applicants' criticisms amounted to disagreement with the outcome rather than evidence of an unlawful process.

The Wild Coast case concerned an exploration right granted in 2014 and renewed twice since, most recently in the hands of Shell and Impact Africa. Unlike the West Coast matter, the lawfulness of the decision was not really in dispute by the time it reached the Constitutional Court.

The High Court had already found, and the Supreme Court of Appeal had already agreed, that affected communities were never meaningfully consulted and that decision makers had failed to weigh up matters such as harm to marine life, climate change and the special legal status of the coastline.

The only real question left for the Constitutional Court was what should happen as a result: whether the process could be sent back for the missing steps to be completed, or whether the right had to be set aside for good.

Why the outcomes differ

The first and most important difference is that the two courts were answering different questions. The West Coast judgment was about whether a decision was lawful in the first place. The Wild Coast judgment, by the time it reached the Constitutional Court, was about the appropriate remedy for a decision that had already been found unlawful by two lower courts.

A finding that a process was lawful and a finding about what to do once a process has been found unlawful are not directly comparable, even though both cases involve seismic surveys.

The second difference is the quality and age of the underlying process. The West Coast survey's environmental authorisation followed a public participation process run in 2022, informed by more than 300 pages of assessment and five specialist studies, with input from the applicants themselves built into the final report.

The Wild Coast exploration right traced back to an application accepted in 2013 and a grant made in 2014, a decade earlier, under a regulatory framework that has since changed substantially. The Constitutional Court found that consultants had been told directly by community leaders that engagement with the wider community was needed, and had not done so. That is a materially weaker starting point than the West Coast process.

The third difference is timing and consequence. Because the West Coast case was decided at first review, deference to the original decision makers was appropriate unless a clear legal flaw was shown, and none was. Because the Wild Coast case had already established serious, longstanding rights violations, the Constitutional Court was exercising a different and much wider power, the discretion under section 172 of the Constitution to grant whatever remedy is just and equitable.

It concluded that consulting affected communities more than a decade late would not undo the harm already done; that the change in the legal and factual landscape since 2013 meant a fresh look would amount to assessing an entirely new application in any event, and that a moratorium on new offshore applications in place since 2018 meant sending the matter back would hand the companies an advantage denied to everyone else affected by that moratorium. Even the roughly R1.1 billion the companies say they have spent could not outweigh those factors.

That split shows that the wide, fact-specific discretion involved in shaping a remedy leaves more room for genuine disagreement among judges than an ordinary review of whether a process was properly followed.

Lessons for the industry

Taken together, the two rulings are less a sign of judicial inconsistency than a fairly consistent message about what the courts expect.

A survey backed by a recent, thorough and genuinely two way public participation process, in which specialist studies address the concerns raised and mitigation measures are built into the authorisation, stands a reasonable chance of surviving a legal challenge even where objectors disagree with the outcome.

A right resting on an old, thin consultation record, particularly one where affected communities were never properly engaged despite being told this was necessary, is vulnerable to being unwound entirely, regardless of how much has since been invested.

The Wild Coast judgment also carries a warning for company transactions in the sector. Shell argued that it should not be held responsible for consultation failures that occurred before it acquired its interest in the project.

The Constitutional Court rejected that argument, at least for the purposes of weighing up a fair remedy, finding that a company taking on a stake in an existing right also takes on the legal vulnerabilities attached to it. That places a premium on scrutinising the adequacy of the original authorisation process during due diligence, not simply confirming that a right remains formally valid.

Finally, the decisive role played by the offshore moratorium in place since June 2018 is a reminder that litigation risk in this sector does not exist in isolation from policy. A remedy that might otherwise have been available to the Wild Coast companies was closed off because it would have let them bypass a restriction applied to everyone else.

Companies weighing new offshore projects, and the lenders and investors backing them, will need to read court rulings and standing government policy together, rather than assuming that success in one review signals how the next will be decided.

Winding up Cape Town’s wind woes Scientists raise alarm on early fisheries closure