Signage for TotalEnergies at the company's headquarters in the La Defense business district in Paris, France. (Photo: Benjamin Girette / Bloomberg via Getty Images) 
The recent high court decision to overturn government approval for offshore oil and gas drilling by TotalEnergies in Blocks 5, 6, and 7 along South Africa’s south-west coast is a landmark victory for both The Green Connection and Natural Justice, who brought this case on behalf of small-scale fishing communities and the public at large.
Shell and the State have since filed applications for leave to appeal against the judgment, but until that is decided, the judgment is binding law. It centres around the national debate on fossil fuels. South Africa must invest in renewable energy, or risk being left behind.
The argument of economic prosperity is often pushed to support fossil fuel development, but looking at the economic aspect, it could be many years before any oil is produced. In the interim, the risks to coastal communities could be detrimental as spills can occur during the exploration phase. Also, by the time production begins, the world may have already moved on to cleaner sources of energy. The result could be stranded assets and unnecessary risks to marginalised communities like small-scale fishers.
Engaging in developments like these could be an extremely risky gamble for South Africans as well as our environment. The Deepwater Horizon spill, which occurred in 2010, is a clear example of how bad things could become, with indications that clean-up efforts may continue as far as 2030. Other industries could also be affected. These include, among others, the tourism and commercial fishing industries, which are worth billions of rand and provide tens of thousands of jobs. This is notwithstanding the possibility of irreparable damage to our environment and marine life.
The Constitution is clear. Section 24 provides that everyone has the right to an environment that is not harmful to their health or wellbeing, and that the State must take reasonable measures to protect the environment for present and future generations. This right is given life through laws such as the National Environmental Management Act and the National Environmental Management: Integrated Coastal Management Act. These are not optional guidelines. They are binding obligations on decision-makers. The court examined how the government applied these laws, and it found the process to be legally flawed in five important respects:
Failure to assess the socioeconomic impacts of a spill
The court found that the environmental studies did not properly assess the socioeconomic consequences of a major oil spill or well blowout. The reports acknowledged that such a disaster could occur and would cause serious environmental harm, but stopped short of quantifying its effects.
Small-scale fishers, coastal communities, and tourism operators rely on a healthy ocean for survival. The National Environmental Management Act requires that the environmental authorisation process include not only the ecological impacts of a project, but also the social and economic consequences. It also contains what is known as the “precautionary principle”. This principle means that if there is a risk of serious or irreversible damage, the government cannot say: “We do not have all the data, so we will do nothing.” On the contrary, the law requires a cautious and risk-averse approach in the face of uncertainty.
Here, instead of insisting on a careful study of how a spill would affect people’s livelihoods, the government accepted vague assurances. The court made it clear that this was unlawful. Uncertainty is not a justification for weaker protections; it is a reason for stronger safeguards.
Ignoring duties under the Coastal Management Law
The second failure was the government’s disregard for the National Environmental Management: Integrated Coastal Management Act. This law recognises certain areas within South Africa’s exclusive economic zone as “coastal public property”. Section 8 of the act states that such property is held in trust by the State for the benefit of all South Africans. Section 13 requires the State to manage it in the interests of all South Africans, with particular regard for present and future generations.
Despite these clear instructions, the decision-makers did not consider what impact drilling might have on coastal public property. They also failed to address the effect on public access to the coast. The court described this as a serious omission because the law gives coastal areas a special legal status that demands extra care. Ignoring those obligations meant the authorisation was fundamentally flawed.
Climate change was sidelined
The third ground was the government’s failure to take climate change seriously in its assessment. Under the environmental authorisation regulations, decision-makers must consider the “need and desirability” of a project. That means weighing its benefits against its risks and asking whether it is genuinely in the public interest.
In this case, the government highlighted potential economic benefits, but ignored the harmful climate consequences of those same activities. This is irrational. Exploration cannot be separated from production, because they are part of the same chain of events. South Africa has also committed internationally, through the Paris Agreement and other frameworks, to reduce its greenhouse gas emissions. Section 2(4)(n) of the National Environmental Management Act requires the government to take those obligations into account. By failing to do so, the decision-makers fell short of the legal duty to act in a rational and balanced way. The court confirmed that climate impacts are not optional considerations. They are central to lawful decision-making.
No assessment of harm beyond our borders
The fourth ground was the failure to assess “transboundary” impacts, which refers to how such a project could affect nations beyond our borders. Scientific modelling showed that an oil spill from this project could drift into the waters of Namibia. International law has long recognised the principle of “no harm”, which means that a country must not allow activities within its territory to cause significant harm to another state. Section 2(4)(n) of the National Environmental Management Act reflects this principle in domestic law.
Yet, the government completely ignored the possibility of harm to Namibia. The court ruled that this omission was inconsistent with both South Africa’s domestic and international obligations. When projects have potential cross-border consequences, these consequences must be assessed.
Public was excluded from critical information
The fifth ground was the withholding of the Oil Spill Contingency Plan and the Blowout Contingency Plan until after the authorisation was granted. These set out exactly how TotalEnergies would prevent, control and respond to a major disaster such as an oil spill or blowout. Without them, the public could not meaningfully assess the adequacy of the safeguards being proposed.
The National Environmental Management Act is clear: environmental governance must be participatory. Section 2(4)(f) requires that interested and affected parties be given an opportunity to be informed and to contribute to decisions. Public participation without access to crucial information is no participation at all. The court therefore held that the process was unlawful because it denied communities the right to engage meaningfully on the risks that would affect them most directly.
What the judgment means
The minister must now reconsider the application. That means publishing the spill plans for comment, properly assessing socioeconomic, climate, coastal and cross-border impacts, and ensuring that public participation is genuine. For the government, this is an opportunity to correct course and demonstrate respect for the law. For companies, it is a reminder that projects will not succeed unless they meet the highest standards of transparency and accountability. For communities, it is reassurance that the law can be a shield against neglect and exploitation.
This case is not about rejecting development. It is about insisting that development must be lawful, responsible and fair. It is about recognising that the environment is a shared resource held in trust for all South Africans. We cannot be placed at risk through incomplete studies, ignored laws, or withheld information.
As Legal Advisor and Strategic Lead at The Green Connection, we see this judgment as a turning point. It confirms that when communities stand together, when civil society uses the law effectively, and when courts apply constitutional and environmental principles with care, justice is possible.
Our coastlines and our oceans are not bargaining chips. They are rights, livelihoods and legacies, and the law demands that they be protected. DM
Shahil Singh is a Legal Advisor at The Green Connection, and Liziwe McDaid is a Strategic Lead at The Green Connection.