The Supreme Court of Appeal’s assessment of procedurally fair administrative action under PAJA: Minister of Mineral Resources and Energy and Others v Sustaining the Wild Coast NPC and Others (Case no 58/2023; 71/2023; 351/2023) [2024] ZASCA 84 (3 June 2024)

Introduction

In June 2024, the Supreme Court of Appeal (“SCA“) addressed issues of procedurally fair administrative action under section 3 of PAJA [1]. In this case the Minister of Energy and Resources granted an exploration right under the MPRDA [2] to Impact Africa Limited (“Impact“), which would be used by Shell Exploration and Production South Africa B.V and BG International Limited (“Shell“) for seismic surveys for oil and gas exploration off South Africa’s Wild Coast.

The Minister granted the initial exploration right in 2014, with renewals in 2017 and 2021. In 2023, affected and interested parties (the “respondents“) [3] approached the High Court with a two-part application: first, to interdict Impact and Shell from conducting seismic surveys, and second, to review and set aside the Minister’s decisions on the renewals. The High Court ruled in favour of the respondents on both parts. The Minister, Shell, and Impact (the “appellants“) then appealed this decision at the SCA.

Issues in the appeal

The appellants argued that the respondents:

• unreasonably delayed their application and that public awareness of the initial right grant in 2014 and public notifications prior to 2014 constituted sufficient notice.
• failed to exhaust internal appeal remedies under the MPRDA.

Conclusion:

The SCA clarified that notifications prior to 2014 pertained to Impact’s application for the exploration right, not its actual grant or renewals. Although the respondents said they did not pursue internal remedies as they initially sought an interdict against seismic surveys and alleged bias from the Minister, the SCA said the respondents could not rely on conduct or statements by the Minister.

The court affirmed that granting the exploration right constituted administrative action triggering the right to procedural fairness under section 3 of PAJA. It emphasised that affected parties must receive adequate notice and a reasonable opportunity to make representations on proposed actions. The SCA criticised the use of newspapers as notice, noting that they were inaccessible to certain communities and not in their language, rendering the consultation process inadequate.

The SCA found the Minister’s decision reviewable under PAJA and declared it unlawful. Despite dismissing the appeal, it allowed the exploration right to remain in force pending the latest renewal application’s outcome. Acting Judge Ponnan ordered a further public participation process to address identified defects and ensure procedural fairness.

Commentary

The Minister should have given clear notice of his decisions to grant and renew the exploration right. Although the exploration right remains valid, it is subject to further public consultation and the latest renewal application. This leaves the door open for Shell and Impact to proceed with exercising the 2021 renewal. 

The judgment shows the importance of recognising and respecting the right to adequate notice for interested and directly affected parties under PAJA. There must always be a meaningful consultation process to ensure procedural fairness.

Article prepared by Mbalenhle Simelane

[1] The Promotion of Administrative Justice Act 3 of 2000.
[2]  The Mineral and Petroleum Resources Development Act 28 of 2002.
[3]  Sustaining the Wild Coast NPC, Mashona Wetu Dlamini, Dwesa-Cwebe Communal Property Association, Ntshindiso Nongcavu, Sazise Maxwell Pekayo, Cameron Thorpe, All Rise Attorneys for Climate and the Environment NPC, Natural Justice and the Greenpeace Environmental Organisation NPC.