South Africa’s constitutional order makes public participation a substantive requirement of lawful decision-making, and the courts enforce it. Two recent judgments on offshore seismic surveys show what follows when that obligation is met, and when it is not. Both hold lessons for data centre developers.
In Sustaining the Wild Coast NPC v Minister of Mineral Resources & Energy [2026] ZACC 33, delivered on 14 August 2026, the constitutional court reinstated the high court order setting aside Shell and Impact Africa’s exploration right for the Wild Coast. The high court had found the consultation deficient on several counts. Affected communities were left off the stakeholder database. Notices were published in English and Afrikaans in newspapers that predominantly isiXhosa-speaking communities could not access. Consultants dealt with the monarchs even though traditional leaders had asked them to engage directly with community members.
The majority, per Kollapen J, held that consultation affirms human dignity by giving “a seat at the table” to those whose lives are affected, and that being consulted more than a decade later is not curative. It gave limited weight to the companies’ reported expenditure of about R1.1-billion. Rogers J (Savage J concurring) dissented on remedy, warning that the majority granted the applicants “everything and the oil companies nothing”. A project conceived in 2013 has now been halted for well over a decade.
Our constitution requires development and environmental protection to operate in tandem, with neither trumping the other.
Claire Tucker
The contrast with Aukotowa Fisheries Primary Co-operative v Director-General: Department of Mineral & Petroleum Resources (13 August 2026), in which a Bowmans team acted, is instructive. There the high court dismissed a review of TGS’s environmental authorisation for a seismic survey in the Orange Basin. An extensive participation process had fed into the draft basic assessment report, which then went out for a further round of comment, and the final report reflected that input. The applicants, who had taken part, abandoned their challenge to the participation process entirely, and Cloete J criticised their “scatter-shot” approach and 4 701-page record. The authorisation survived vocal opposition because the participation process was sound.
Why this matters for data centres
Data centres are the latest arena for this contest. At an October 2026 workshop on the South Africa Data Centre Investment and Enablement Roadmap, convened at the Industrial Development Corporation (IDC), participants said misinformation and lobbying during public participation create delays and holding costs that developers have to bear. They pointed to the Cape Town data centre rezoning under challenge, and to complaints the South African Human Rights Commission had received about the water, noise and other effects of data centres.
Offshore oil and gas shows how quickly a narrative can harden. Well-resourced international organisations, including Greenpeace and Natural Justice, both parties in Wild Coast, have joined or supported much of that litigation. Their concerns are legitimate but, in our view, they often reflect the climate priorities of the Global North more than a developing country’s need to balance environmental protection against energy security, jobs and transformation. Our constitution requires development and environmental protection to operate in tandem, with neither trumping the other.
Foxglove, a UK-based technology advocacy group, is campaigning against data centre development in Cape Town, which suggests the same dynamic is reaching digital infrastructure. Developers should expect international campaigners to amplify local concerns, and should engage early with communities whose interests are directly affected.
Not a listed activity, not exempt from scrutiny
Data centre development is not a listed activity under the environmental impact assessment regulations. Authorisation is instead triggered piecemeal by components such as clearing land, storing diesel and backup generation, so community concerns often surface late, at rezoning. That is a trap. A credible assessment should address the project as a whole: water demand and cooling technology, electricity demand and renewable supply, emissions from diesel backup, noise and land use. Developers should do this now, ahead of a formal listing by the minister of forestry, fisheries & the environment, which current indications suggest may follow in the near future.
A participation strategy for every approval
Developers should adopt a participation strategy that covers every approval – environmental authorisation, water use licensing, rezoning, wayleaves and generation licensing – rather than relying on the statutory minimum for each. That strategy should identify affected communities through a public process rather than desk research alone. It should communicate in local languages and through accessible channels such as community radio, roadshows and booklets. It should engage communities directly rather than only through their leaders, open facilities to inspection and publish verifiable data on water and energy use. Developers should also document how they considered and responded to every comment. A record of that kind is what allowed TGS to defend its authorisation.
The state’s role
Strategic planning can reduce conflict at project level. Under the National Environmental Management Act, the minister identified renewable energy development zones and strategic transmission corridors, based on strategic environmental assessments by the CSIR. Within them, wind, solar and grid projects need only a basic assessment, on shorter timeframes. When the zones were approved in 2016, the department estimated processing times would fall from 300 days to 147.
Data centres need similar thinking: early site screening using CSIR-style strategic assessments to identify suitable nodes, and a data centre pipeline survey modelled on the South African Renewable Energy Grid Survey. A zone-based approach, backed by an assessment that has itself been through public participation, would give communities a meaningful say at the planning stage and investors greater certainty. Until it exists, the burden falls on developers to build a record that will survive review.
- The author, Claire Tucker, is a partner and head of public law at Bowmans South Africa
