ConCourt Ends Shell's Wild Coast Exploration; Benchmark Replacement Bill Signals JIBAR Transition

The Minister of Finance has published a pre-introduction notice and explanatory summary for the General Finance Laws Amendment Bill, 2026. The Bill proposes to amend the Financial Sector Regulation Act, 2017, by inserting a new chapter providing for the designation of replacement benchmarks, the effect of replacement benchmarks on legacy contracts, limitation of liability arising from the selection or utilisation of a replacement benchmark or designated adjustment spread, and a consultation process for designations or determinations made by the Reserve Bank. The Bill also proposes to amend the Public Procurement Act, 2024, to change the timeframe within which the Minister must review the Act's implementation and report to Parliament. The Bill has not yet been introduced; a copy will be available on the National Treasury website after introduction.

Shell and Impact Africa obtained an exploration right for seismic surveying off the Wild Coast. The High Court set aside the exploration right and its renewals on review. The SCA partially upheld the appeal by suspending the setting-aside order to allow a third renewal application, treating the defects as curable through consultation at the renewal stage under section 81 of the MPRDA.

The court held: The majority held that the SCA misdirected itself. The defects in the impugned decisions extended beyond procedural consultation failures to include the decision-maker's failure to consider climate change, the Integrated Coastal Management Act, the precautionary principle, and compliance with legal prescripts. Section 81 renewal could not cure defects that should have been addressed at the section 79/80 grant stage. The Court developed the law on remedies, holding that remittal is not an automatic consequence of setting aside and that a court may, where just and equitable, set aside without remittal or substitution. The SCA's suspension order was set aside and the High Court's order restoring the setting aside of the exploration right and renewals was reinstated. The appeal was dismissed with costs.

Legal impact: This judgment develops the administrative remedies doctrine in three significant ways: (1) it confirms that remittal is discretionary, not automatic, preventing errant applicants from obtaining a 'second bite at the cherry'; (2) it integrates international climate change jurisprudence (including the 2025 ICJ Advisory Opinion) into South African environmental law, reinforcing the duty to consider climate change in resource allocation decisions; and (3) it strengthens the requirement for meaningful, bona fide consultation with affected communities at the initial grant stage under the MPRDA. The judgment effectively ends Shell/Impact Africa's Wild Coast exploration and signals heightened scrutiny for all future MPRDA applications.