The constitutional order of South Africa requires mandatory public participation in decision-making, and the courts ensure compliance with this requirement. Two recent rulings concerning marine seismic surveys demonstrate the consequences of fulfilling or failing to meet this obligation, both containing lessons for data center developers.
In the case of Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy [2026] ZACC 33, delivered on August 14, 2026, the Constitutional Court reinstated an appellate court decision that had revoked Shell and Impact Africa's exploration rights in the Wild Coast area. The appellate court found that consultations were conducted improperly for several reasons. Affected communities were not included in the stakeholder database. Notifications were published in English and Afrikaans newspapers that most isiXhosa-speaking communities could not read. Consultants interacted with monarchs despite traditional leaders requesting direct engagement with community members.
The majority of judges, according to Kollapen J, ruled that consultations affirm human dignity by providing a 'seat at the table' for those whose lives are affected, and that consultations held more than ten years later cannot rectify the situation. Limited significance was given to the companies' claimed expenditure of about 1.1 billion rand. Rogers J (with the concurrence of Savage J) dissented regarding the remedy, warning that the majority provided 'everything to the applicants and nothing to the oil companies.' The project, conceived in 2013, is now stalled for over a decade.
A contrast with the case of Aukotowa Fisheries Primary Co-operative v Director-General: Department of Mineral Resources and Energy (August 13, 2026), in which the Bowmans team was involved, is illustrative. In this instance, the appellate court dismissed the review of the TGS environmental permit for seismic surveying in the Orange basin. An extensive participation process was integrated into the baseline assessment report, which was then submitted for an additional comment cycle, and the final report reflected these comments. The applicants who participated fully waived any challenge to the participation process, and Cloete J criticized their 'shotgun approach' and the 4,701-page report.
Why this matters for data centers
Data centers have become the latest arena for this confrontation. At a seminar held in October 2026 as part of the South African Data Center Investment and Enablement Roadmap, organized by the Industrial Development Corporation (IDC), participants noted that misinformation and lobbying during public participation lead to delays and downtime costs borne by developers. They pointed to the rezoning of a data center in Cape Town, which is being challenged in court, as well as complaints received by the South African Human Rights Commission regarding the impact of data centers on water, noise, and other factors.
Offshore oil and gas projects show how quickly a certain narrative can solidify. International organizations with large resources, including Greenpeace and Natural Justice, participated in or supported most of these legal proceedings in the Wild Coast case. Their concerns are valid, but according to the authors, they often reflect the climate priorities of the Global North more than the developing country's need to balance environmental protection, energy security, jobs, and transformation. Our constitution requires that development and environmental protection function in parallel, with neither overriding the other.
Foxglove, a UK technology advocacy group, is opposing data center development in Cape Town, indicating that the same dynamic is reaching digital infrastructure. Developers should expect international activists to amplify local issues and must engage early in dialogue with communities whose interests are directly affected.
Not exempt from scrutiny just because it is not listed
Data center development is not on the list of activities subject to Environmental Impact Assessment regulation. Instead, permits are issued incrementally for components such as land clearing, diesel fuel storage, and backup power, so community concerns often arise late, at the rezoning stage. This is a trap. A proper assessment must consider the project as a whole: water and cooling technology demand, electricity and renewable energy demand, emissions from diesel backup power, noise, and land use. Developers must do this now, before the Minister of Forestry, Fisheries and the Environment officially includes it in the list, which may happen soon based on current indicators.
Participation strategy for every approval
Developers must implement a participation strategy that covers every approval—environmental permits, water use licensing, rezoning, servitudes, and generation licensing—instead of relying only on minimum legislative requirements for each. This strategy must identify affected communities through a public process, not just desk studies. It must communicate in local languages and through accessible channels, such as community radio, mobile exhibitions, and brochures. Communities must be engaged directly, not just through their leaders; sites must be open for inspection, and verifiable data on water and energy usage must be published. Developers must also document how they considered and responded to every comment. It is this record-keeping that allowed TGS to protect its permit.
The role of the state
Strategic planning can reduce conflicts at the project level. In accordance with the National Environmental Management Act, the minister has designated renewable energy development zones and strategic transmission corridors based on strategic environmental assessments conducted by CSIR. Within these zones, wind, solar, and grid projects require only a basic assessment in a shorter timeframe. When the zones were approved in 2016, the department projected that processing times would decrease from 300 to 147 days.
Data centers need a similar approach: early site screening using CSIR-style strategic assessments to determine suitable nodes and a data center pipeline survey modeled on the South African renewable energy network. A zone-based approach supported by an assessment that itself underwent public participation would give communities a meaningful voice at the planning stage and greater confidence to investors. Without such an approach, the burden falls on developers, who must create documentation capable of withstanding scrutiny.
