Authored By: Bronwyn van Neel
Abstract:
For a few years now, oil & gas companies have been targeting the coastline of South Africa, it has become the focal point of constitutional and environmental litigation. While oil & gas exploration has been framed as necessary for energy security and economic development, it raises serious concern for environmental degradation and the protection of coastal communities’ constitutional rights. Under the sections 9, 10, 24, 32 and 33 of the Constitution of the Republic of South Africa, 1996, this article will examine the impacts of oil & gas explorations.
Background:
Oil & Gas exploration on the South African coastline has become a major site of offshore oil & gas exploration driven by multinational corporations and state energy priorities. It has been proposed as necessary development for energy security and basis of economic growth, which violates constitutional rights.
Offshore exploration activities pose a risk to marine biodiversity, fisheries and coastal ecosystems. These risks affect Small-Scale Fishers who rely on marine resources for livelihoods, food security and cultural identity. Fishing is a generational legacy in small fishing communities and has significant value for these communities.
Thesis Statement:
This article argues that under sections 9,10,24,32 and 33 of the Constitution, that offshore oil & gas exploration in South Africa, when conducted without meaningful consultation, adequate environmental assessment and proper consideration of socio-economic and climate impacts, may violate coastal communities’ constitutional rights. It further argues that civil society activism, together with South African courts are developing an environmental consultation framework that prioritize ecological integrity and environmental justice for coastal communities.
3. Constitutional Framework
3.1 Section 24: Environmental Right
Section 24 states that everyone has the right to an environment that is not harmful to their health and well-being, this requires sustainable development. In the Fuel Retailers Association of Southern Africa v Director General: Environmental Management, the Constitutional Court ruled that sustainable development requires balancing environmental protection with socio-economic development.
3.2 Section 10: Dignity
In the Khumalo v Holomisa case the Constitutional Court affirmed dignity as a foundational value of the Constitution. Livelihoods and cultural practices may be affected by environmental degradation, that indirectly affects dignity.
3.3 Section 9: Equality
Marginalized communities are often affected by environmental degradation that raises the issue of substantive inequality.
3.4 Section 32 and 33
Access to information and just administrative action require meaningful public participation in environmental decision-making processes. Promotion of Administrative Justice Act 3 of 2000, reinforces these rights.
4.Case Law Analysis
4.1 Earthlife Africa Johannesburg v Minister of Environmental Affairs
The High Court set aside approval for of a coal-fired power station for failing to consider climate change impacts. The judgement confirmed that considering climate change is mandatory consideration in environmental decision-making.
4.2 Hichange Investments (Pty) ltd v Cape Produce Company (Pty) Ltd
“In this case the court recognized that environmental harm may justify interdictory relief where irreparable damage is reasonably apprehended.”
4.3 Fuel Retailers Association
“The Constitutional Court emphasized that sustainable development requires integration of environmental and economic considerations.”
4.4 Sustaining the Wild Coast NPC v Minister of Mineral of Resources and Energy
“The Makhanda High Court set aside Shell’s seismic exploration authorization of the Wild Coast. The court found that consultation was inadequate and that socio-economic and cultural impacts were not properly assessed.”
4.5 Precautionary Principle
Precautionary principles were applied when the court granted an interim interdict against seismic explorations, recognizing that environmental harm does not need to be proven with certainty before protective measures are taken.
5.Case study: TEEPSA Block 5/6/7
5.1 Background
This project was proposed by TotalEnergies EP South Africa (TEEPSA) , block 5/6/7 involves deep-water oil & gas exploration on the West Coast coastline. The area includes sensitive marine areas and spans approximately 10 000km₂
5.2 Environmental Authorization
In 2023 the Minister granted Environmental Authorization under the National Environmental Management Act 107 of 1998. The process faced a lot of resistance from fishing communities and civil society due to concerns over consultation, environmental risks and socio-economic impacts on fishing communities.
5.3 Judicial Review
The Western Cape High Court set aside the environmental authorization, finding the that:
Consultation was inadequate
Socio-economic impacts were not properly assessed
Environmental risks were underestimated
NEMA principles were not properly applied
The judgment of the Western Cape High Court confirmed that environmental governance must reflect constitutional principles of accountability and public participation.
5.4 Constitutional implications
The case implies that sections 9, 10, 24, 32 and 33 of the Constitution and the reinforces that environmental authorization must be constitutionally compliant, not merely procedurally valid.
6. Civil Society Campaigns
6.1 Who Stole Our Oceans
The Who Stole Our Oceans Campaign driven by The Green Connections is an initiative to oppose oil & gas exploration of the coastline of South Africa, supporting fishing communities. The campaign emphasizes transparency, environmental justice, protection of marine ecosystems and preserving of livelihoods.
6.2 Oceans Not Oil
The Oceans Not Oil Movement, advocate for clean and health oceans, protection of marine biodiversity and a just transition away from fossil fuels. It states that offshore oil & gas drilling activities are incompatible with ecological sustainability and climate justice.
6.3 Constitutional Role of Activism
These campaigns contribute to environmental constitutionalism by:
Enhancing public participation
Supporting litigation
Raising awareness of Constitutional Rights
Amplifying marginalized coastal voices
7. Emerging Legal Principles
South African environmental jurisprudence increasingly recognizes that:
Meaningful participation is constitutionally required
Climate change is a mandatory legal consideration
Socio-economic and cultural impacts must be assessed
The precautionary principle applies to uncertain environmental rights
Coastal communities have protected environmental rights
8. Critical Evaluation
Despite strong constitutional protections and progressive jurisprudence, immense gaps remain between legal principles and environmental governance practice.
First, procedural compliance is often replaced with fair outcomes. Environmental Authorization processes emphasize formal consultation (such as notice and comment procedures) without ensuring that communities are part of the decision-making but as a tick box exercise. In the offshore exploration we saw that consultation occurs late in the decision-making process which limits meaningful participation.
Secondly, Environmental Impact Assessment is difficult for communities to access as documents are very technical, and communities can only understand it with the help of experts. This raise concerns under the sections 32 and 33 of the Constitution, as there is no meaningful access to information if it’s not understandable or usable for communities.
Thirdly, economic prioritization continues to dominate environmental decision-making despite the constitutional requirements for balance. Energy security often carries greater institutional weight than environmental and community rights. This creates a structural bias in favor of approval of extractive projects.
Fourth, judicial intervention remains reactive rather than preventative. Courts only intervene after the Environmental Authorization is granted, meaning environmental harm may be already imminent or partially irreversible. Although the precautionary principle has been applied, its enforcement remains inconsistent.
Fifth, climate change considerations are still unevenly integrated into administrative decision-making. It has been confirmed by Earthlife Africa that climate change impacts must be considered, environmental authorizations still treat climate change analysis as supplementary rather than determinative.
Finally, civil society campaigns such as Who Stole Our Oceans and Oceans Not Oil demonstrate a growing democratisation of environmental governance, but they also highlight the limitations of formal legal processes. These movements emerge partly because institutional consultation mechanisms are perceived as insufficiently responsive.
South African consists of a highly developed environmental constitutionalism in theory, while implementation reveals tension between law, governance capacity, and economic policy priorities.
9. Conclusion
Oil & gas exploration along South Africa’s coastline raises immense constitutional concerns. Coastal communities are rights-holders under the Constitution of South Africa, not passive stakeholders. “South Africa’s courts have confirmed that environmental authorizations must comply with constitutional requirements of fairness, sustainability and participation.
The combination of jurisprudence and civil society activism demonstrates the emergence of environmental constitutionalism in South Africa, where ecological protection and human rights are deeply interconnected.
Reference(S):
National Environmental Management Act 107 of 1998; Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province 2007
M Kidd Environmental Law (Juta 2011) 120–125.
L Glazewski Environmental Law in South Africa (2nd edn, Juta 2005) 45–50.
Constitution of the Republic of South Africa, 1996 ss 9, 10, 24, 32, 33.
Fuel Retailers Association
Khumalo v Holomisa 2002
M Kidd
Promotion of Administrative Justice Act 3 of 2000
Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017
Hichange Investments (Pty) Ltd v Cape Produce Company (Pty) Ltd 2004 (2) SA 393 (E).
Fuel Retailers Association (n 1).
Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy (Makhanda High Court, 2022).
National Environmental Management Act 107 of 1998
SLR Consulting, Environmental Impact Assessment Report: Block 5/6/7 Offshore
Exploration (2023).
Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy (Western Cape High Court, 2025).
Who Stole Our Oceans Campaign, available at: https://www.whostoleouroceans.org (accessed 18 June 2026).
Oceans Not Oil Campaign, available at: https://www.oceansnotoil.org (accessed 18 June 2026).
Table of Cases
Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 (2) SA 519 (GP)
Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province 2007 (6) SA 4 (CC)
Hichange Investments (Pty) Ltd v Cape Produce Company (Pty) Ltd 2004 (2) SA 393 (E)
Khumalo v Holomisa 2002 (5) SA 401 (CC)
Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy (Makhanda High Court, 2022)
Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy (Western Cape High Court, 2025)
Table of Legislation
Constitution of the Republic of South Africa, 1996
National Environmental Management Act 107 of 1998
Promotion of Administrative Justice Act 3 of 2000
Cases
Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 (2) SA 519 (GP)
Fuel Retailers Association of Southern Africa v Director-General: Environmental Management 2007 (6) SA 4 (CC)
Hichange Investments (Pty) Ltd v Cape Produce Company (Pty) Ltd 2004 (2) SA 393 (E)
Khumalo v Holomisa 2002 (5) SA 401 (CC)
Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy (Makhanda High Court, 2022)
Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy (Western Cape High Court, 2025)
Legislation
Constitution of the Republic of South Africa, 1996
National Environmental Management Act 107 of 1998
Promotion of Administrative Justice Act 3 of 2000
Books
Glazewski L, Environmental Law in South Africa (2nd edn, Juta 2005)
Kidd M, Environmental Law (Juta 2011)
Reports
SLR Consulting, Environmental Impact Assessment Report: Block 5/6/7 Offshore Exploration (2023)
Online Sources and Campaigns
Oceans Not Oil Campaign (2026) https://www.oceansnotoil.org accessed 18 June 2026
Who Stole Our Oceans Campaign (2026) https://www.whostoleouroceans.org accessed 18 June 2026
