11 September 2026
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Story Prof Narnia Bohler-Muller
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Photo Supplied
Prof Narnia Bohler-Muller, Research Theme Leader: Flourishing Life, Directorate Research Development, University of the Free State
Opinion article by Prof Narnia Bohler-Muller, Research Theme Leader: Flourishing Life, Directorate Research Development, University of the Free State
When the Constitutional Court handed down its judgment in the Wild Coast matter on 14 August 2026, the headlines understandably focused on the environment: seismic surveys silenced, marine life protected, and another fossil-fuel frontier closed. All of this matters, but it is not the whole story. At its heart, the judgment concerned a more intimate question about our constitutional democracy: can a community be governed, and its coastline disposed of, without ever being meaningfully asked?
The case arose from an exploration right granted in 2014 to Impact Africa, to be exercised by Shell, over approximately 6 000 sq km of ocean between Port St Johns and Morgan Bay on the Eastern Cape coast. The communities living along that coastline were not meaningfully consulted before the right was granted. In September 2022, the Makhanda High Court set the decision aside as unlawful. In June 2024, the Supreme Court of Appeal upheld the finding of unlawfulness but suspended the order, allowing the companies to cure the defect through a renewal application.
The significance of the judgment
The Constitutional Court was asked whether an unlawful consultation process could be repaired in this way. In Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others; Natural Justice and Another v Minister of Mineral Resources and Energy and Others (CCT 194/24; CCT 196/24) [2026] ZACC 33, the majority, per Kollapen J, held that it could not. The Court set aside the Supreme Court of Appeal’s remedy and reinstated the High Court’s order. The exploration right and its renewals therefore remain cancelled.
The significance of the judgment lies not only in its environmental consequences, but in what it tells us about the meaning of democratic participation. We tend to imagine democratic voice primarily as the vote: something exercised every few years and then, in effect, put away. But the Wild Coast communities were not asking to vote on the decision. They were asking to be present when the decision affecting their lives and futures was being made.
The Court’s insistence on meaningful consultation recognises that participation is not a courtesy extended after the important decisions have already been taken. Consultation is part of what makes the decision itself legitimate. And legitimacy cannot be manufactured retrospectively. You cannot consult a community into agreement after the fact.
This is why the question of remedy became so important. The Supreme Court of Appeal had offered the companies a way forward: cure the unlawful process through a further renewal application and a fresh round of consultation. The Constitutional Court rejected that approach.
Kollapen J’s reasoning goes to the heart of constitutional justice. A remedy cannot be just and equitable if it enables those who benefited from an unlawful process to return to the table with the advantage of what has already been acquired. Nor could the approximately $68 million already spent by the companies outweigh a constitutional violation of this magnitude.
Flourishing is relational, ecological and intergenerational
Here the judgment connects with a larger question I have been exploring through the idea of flourishing.
We often speak of flourishing as though it were a private achievement: an individual life going well. But flourishing is never only individual. It is relational, ecological and intergenerational. It becomes possible when people can live in right relationship with one another, with the natural world that sustains them, and with the institutions that govern their lives.
The fact that this was the first climate-related matter to reach South Africa’s highest court is historically significant. But perhaps its deeper significance lies in what the case reveals about the architecture of flourishing itself. Consider what the proposed seismic exploration would have involved. Air guns would have fired repeated blasts of compressed sound into the ocean floor for weeks at a time, noise that can disrupt marine life and interfere with migration, spawning and the ecological relationships on which coastal communities depend.
The coastline, therefore, cannot be reduced to a resource waiting to be surveyed, extracted and converted into economic value. It is a living system in which human and marine life are entangled. To sanction disruptive activity in that system without meaningfully hearing from the people whose lives, livelihoods and futures are bound to it is to deny flourishing twice: first to the marine world whose intricate relationships may be disrupted, and second to the human communities whose existence is inseparable from that world.
On the Wild Coast, the health of the people and the health of the sea are part of the same ecology of flourishing.
None of this means that South Africa can set aside the difficult questions of energy security, poverty and development. Those questions are real. A country with our history of inequality and load-shedding cannot wish them away, and litigation alone cannot resolve them.
This judgment concerns a particular exploration right, granted through a process that failed to meet constitutional requirements. Shell continues its pursuits elsewhere, including in the Orange Basin. What the Wild Coast judgment does establish is something more enduring. It reminds us that constitutional process is not an obstacle to development. It is a precondition for legitimate and sustainable development.
People have a voice in the conditions of their own lives
It reminds us that the right to participate matters most for those whose voices are easiest to silence. And it reminds us that the quality of a democracy cannot be measured only by the choices available to those with capital, expertise and legal clout. It must also be measured by whether the state is prepared to hear a fishing community on the Eastern Cape coast before it decides what happens to their world.
That is the deeper lesson of the Wild Coast judgment. Flourishing cannot be delivered to communities after decisions about their futures have already been made. It begins with recognition: that people have a voice in the conditions of their own lives, that the natural world is part of those conditions, and that future generations have a claim on the decisions we make today. In that sense, consent is not simply a procedural requirement. It is one of the conditions of flourishing.
Our democracy is still learning that lesson. On 14 August 2026, the Constitutional Court taught it exceptionally well.