Policy on trial: Participatory vs neo-liberal development

This paper examines the conflict in South African government development policy and law between a people-centred participatory approach and a neoliberal growth-centred approach. In particular, we discuss how this conflict has played out in a series of related court cases from 2021 to 2022. Methodologically, the case study is based on three court judgments with individual fishers, community representatives, civil society organisations and legal entities connected to the Eastern Cape Wild Coast as plaintiffs. The defendants were the multinational company Shell and subsidiaries with two South African government ministers. Our analytical framework was informed by Jürgen Habermas' 'instrumental reasoning' which was operationalised through Sherry Arnstein's heuristic model of participation. Different interpretations and expectations of public participation found in government policy documents and law in South Africa are explored. The findings underscore the central importance of appropriate levels of inclusion in public participation, as protected by the South African Constitution, in the process of Exploration Right Applications by mining companies.