CLIMATE CHANGE LITIGATION: THE SOUTH AFRICAN THEATRE (PART 1)

1           The adverse consequences of climate change have become an undisputed fact of our lives globally. As far back as 2007 in its Fourth Assessment Report, the Intergovernmental Panel on Climate Change labelled climate change as “unequivocal”.[1]

2           In 2023 and so far in this year, severe convective storms have accounted for two-thirds of all global insured losses, amounting to almost USD100 billions of economic loss.[2] Furthermore, 2023 has been noted the warmest year on record, which is of particular concern given the persistent melting of the polar icesheets and the consequential knock-on effects thereof [3].

3           This raises the question of how climate change is likely to affect South Africa, whether the legal frameworks in place will provide a platform for change and allow for historic carbon emitters to be held accountable for their contribution to the harm suffered by South Africans.

GLOBAL CLIMATE CHANGE LITIGATION

4           Climate change litigation has become a fast-growing area of the legal field where the scope of accountability is being extended far beyond its traditional harm suffered by those living downriver from the derelict factory. Climate change litigation has become more sophisticated. Recently, governmental functionaries as well as companies have been the targets of such legislation and have been held accountable for their role in climate change.

5           In the Netherlands during 2021, the Hague District Court held that Royal Dutch Shell PLC, through its historic generation of greenhouse gases, had breached its duty of care in terms of the Dutch Civil Code. In its ground-breaking judgment, the court ordered Royal Dutch Shell PLC to reduce the Shell Group’s CO2 emissions by a net 45% by 2030 (relative to its 2019 level of emissions).[4]

6           Also during 2021, the Federal Court of Australia held that the commonwealth minister for the Environment, in her approval of the extension of a coal mine near the town of Gunnedah, New South Wales, had to consider its duty of care to the environmental rights of Australian children in arriving at her decision to either award the mining or decline to do so. The court found that the Minister’s decision to award the mining right would result in an increase in carbon emissions, thereby negatively affecting the health of Australian children.

7           On the other end of the globe, the State of California has recently brought a lawsuit against the top five oil producers raising allegations that these oil-producers have misled the public about the dangers of burning fossil fuels and claim that the oil companies should be held accountable for the consequences of knowingly distributing a product that they knew would cause global warming.[5]

CLIMATE CHANGE LAWS IN SOUTH AFRICA

8           When one looks closer to home, the overarching legal principle governing the impact of climate change is provided for in the Constitution of the Republic of South Africa (the “Constitution“). Section 24 of the Constitution entitles everyone to an environment that is not harmful to their health or wellbeing and to have the environment protected for the benefit of present and future generations. The potential impact of climate change on various other rights enshrined in the Constitution, such as the rights to life, food and water, emphasizes the need to tackle this issue through not only an environmental lens, but a human-rights one as well.

9           While sections 152(1)(b) and (d) of the Constitution places an obligation on local government to ensure that the right to a clean and healthy environment is fulfilled,[6] the conservation of our environment does not rest solely on the government’s shoulders. Various pieces of legislation have been enacted to give effect to section 24 of the Constitution. These pieces of legislation most notably include, amongst others, the National Environmental Management Act, 107 of 1998 (“NEMA”), which is seen as the principal environmental statute in South Africa. Section 28 of NEMA requires that any person who causes, has caused or may cause significant pollution or degradation of the environment to take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring.

10        Therefore, it is evident that all persons bear the obligation to ensure that their actions do not unreasonably derogate our environment. This legislative framework is not without teeth as failing to observe one of these pieces of legislation could result in a criminal offence.

11        Additionally, the Carbon Tax Act 15 of 2019 (the “Carbon Tax Act“) came into effect in June 2019. The Carbon Tax Act, in its preamble, explicitly acknowledges that the “costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimizing further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment“. The Carbon Tax Act imposes a carbon tax on entities who conduct activity which results in greenhouse gas emissions.

12        In October 2023, the National Assembly passed the Climate Change Bill (the “Bill“). This was hailed as a significant step in the right direction, as the Bill aims to create a national framework to guide South Africa’s response to climate change and transition the South African economy towards a low-carbon alternative. In terms of the Bill, various organs are required to review their policies and amend as necessary to align with the objectives of the Bill. The Bill further stipulates that a “National Adaptation Strategy and Plan” is to be developed.

13        Whilst the Bill’s promise has been praised, various concerns have also been raised, including transparency in respect of carbon budgets, and that the Bill is somewhat toothless in enforcing the envisaged reductions of greenhouse gas emissions by emitters.

CONSEQUENCES AND PENALTIES UNDER NEMA FOR FAILING TO PRESERVE THE ENVIRONMENT

14        Most environmental statutes contain criminal sanctions for non-compliance and penalties are potentially significant, usually including the possibility of imprisonment for a maximum specific period, imposition of a fine, or both such prison sentence and fine. For example, schedule 3 to NEMA provides a comprehensive a list of offences, as contained in other statues, whereby directors, employees and agents thereof may be held personally and criminally liable, whereas penalties under NEMA are usually in the range of a maximum of R5 million up to a maximum of R10 million and/ or imprisonment for up to five or 10 years, depending on whether or not one is a repeat offender.[7]

15        Section 33 of NEMA further broadens the scope of litigants who may approach the courts by entitling any person to initiate legal proceedings against any entity, its directors or employees in their personal capacity. While this form of private prosecution may be similar to that which is provided for in the Criminal Procedure Act 51 of 1977, the person initiating the proceedings does not require the public prosecutor’s permission to do so nor do they need to provide security to the court to initiate such action.

SOUTH AFRICAN CLIMATE CHANGE LITIGATION IN ACTION

16        As early as 2007, our courts have recognized the judiciary’s role in the preservation our environment and has expressed their views accordingly. In Fuel Retailers Association of Southern Africa versus Director General Environmental Management, Department of Agriculture, Conversation and Environment (“Fuel Retailers“), the Constitutional Court held that:

“[t]he role of the courts is especially important in the context of the protection of the environment and giving effect to the principle of sustainable development. The importance of the protection of the environment cannot be gainsaid. Its protection is vital to the enjoyment of the other rights contained in the Bill of Rights; indeed, it is vital to life itself. It must therefore be protected for the benefit of the present and future generations. The present generation holds the earth in trust for the next generation. This trusteeship position carries with it the responsibility to look after the environment. It is the duty of the court to ensure that this responsibility is carried out.”.[8]

17        In the Retailers’ judgment, the court emphasized the delicate balance that needs to be struck between socio-economic development and the impact that development may have on the environment. The court noted that:

“Whenever a development which may have a significant impact on the environment is planned, it envisages that there will always be a need to weigh considerations of development, as underpinned by the right to socio-economic development, against environmental considerations, as underpinned by the right to environmental protection. In this sense, it contemplates that environmental decisions will achieve a balance between environmental and socio-economic developmental considerations through the concept of sustainable development“.[9]

18        Subsequently in 2017, in Earthlife Africa Johannesburg versus Minister of Environmental Affairs, the Constitutional Court once again reaffirmed that NEMA requires a relevant competent authority to assess a project’s environmental impact as well as to take reasonable steps to minimize any negative environmental consequences of such a project.[10]

19        While the most notable climate change litigation cases have taken the form of holding an organ of state accountable, as mentioned above, the legal framework is sufficiently broad for private bodies and corporations to be held liable. The basis for the judgments handed down thus far could be applied equally to a private company who has ignored its environmental obligations as it does to a municipality that has failed to consider the environmental impact of its decisions. Thus, no person will be immune from prosecution for his or her failure to uphold their obligations to conserve our environment.

SOUTH AFRICAN CLIMATE LAW LITIGATION: RIPE FOR THE PICKING

20        When considering our international counterparts, it appears that the stage has been set for climate change litigation to become one of the main mechanisms in South Africa to hold private bodies and government institutions liable for failing to address environmental concerns in its decision-making process.

21        With the recent passing of the Bill by the National Assembly, and the increase in cases being brought against organs of state and emitters of greenhouse gases globally, it is only a question of when, not if, the wave of climate change litigation will hit the shores of South Africa. What remains to be seen, is how these legal challenges will be brought, and what defenses shall be raised. We will explore such issues in greater detail, in the series of articles to come. In Part 2, we will look at the various bases on which emitters may be held liable in the South Africa context.

[1] IPCC, 2007: Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change [Core Writing Team, Pachauri, R.K. and Reisinger, A. (eds.)]. IPCC, Geneva Switzerland, pp 30-31, 72 – 73.

[2] Gallagher Re “Natural Catastrophe Report: preliminary review” (October 2023), https://www.ajg.com/gallagherre/-/media/files/gallagher/gallagherre/natural-catastrophe-report-q3-2023.pdf, date accessed: 23 October 2023.

[3] Ibid.

[4] Milieudefensie et al. v. Royal Dutch Shell plc.

[5] See https://www.eenews.net/articles/watershed-moment-california-enters-climate-litigation-fray/ and https://apnews.com/article/climate-oil-gas-california-lawsuit-newsom-212d6d9873352f28094173a1974e3d90#:~:text=LOS%20ANGELES%20(AP)%20%E2%80%94%20The,in%20damage%2C%20officials%20said%20Saturday.

[6] See further sections 4(2)(d), 4(2) and 4(2)(i), 73(1) and (2) of the Municipal Systems Act 32 of 2000 which require municipalities to consider the environmental impact of its decisions and to strive to fulfil section 24 of the Constitution.

[7] See regulation no. 698 in GG 40994 of 20 July 2017 in respect of the regulations relating to the procedure to be followed and criteria to be considered when determining an appropriate fine in terms of section 24G.

[8] Fuel Retailers Association of Southern Africa versus Director General Environmental Management, Department of Agriculture, Conversation and Environment 2007 (6) SA 4 (CC) para 102.

[9] Para 61.

[10] Earthlife Africa Johannesburg versus Minister of Environmental Affairs (2017) 2 All SA 519 (GP) para 79.

**Article originally appeared on the Magerman Attorneys LinkedIn Page. See Link – https://www.linkedin.com/pulse/climate-change-litigation-south-african-theatre-sculf/?trackingId=c35UjcS3bfD6yBbbx8tWrw%3D%3D