South Africa has experienced climate change litigation against private actors, as the Earthlife Africa casewas also filed against the project proponents (4th and 5th Respondents). In addition to violation of constitutional rights and NEMA provisions canvased in the Earthlife Africa case, the following grounds could also form a basis:
- Breach of statutory provisions. A case can be filed under Regulation 28 to the Pension Fund Act 24 of 1956 against a pension fund or any other institutional investment body. The Regulation requires the board of a pension fund to consider environmental, social and governance (ESG) factors before making and investment decision. This provides a basis of challenging investments that contribute to an environmental challenge such as climate change
With respect to standing, the Constitution and NEMA allows individuals and associations to file cases on their behalf, on behalf of another person, on behalf of their members, in the public interest and in the interest of protecting the environment (Section 233 of the Constitution, Section 32(1)NEMA, Earthlife Africa case par. 3).
The main challenges faced by litigants in South Africa in bringing cases before Constitutional Court were highlighted in the Earthlife Africa caseare as follows:
- financial constraints for litigants and
- lack of specialised knowledge in highly technical fields such as climate change.
For more country specific context and relevant national climate change law see: https://climate-laws.org/geographies/south-africa
This country report has been produced by Aditi Shetye, C2LI Research Assistant, Iona McEntee, C2LI Senior Research Assistant and Lydia Omuko-Jung, C2LI Legal Analyst. This summary is based on Michelle Barnard, “Climate change and the individual: South African climate change litigation” in F. Sindico and M. Moise Mbengue, Comparative Climate Change Litigation: Beyond the Usual Suspects, Springer, 2021.