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.

South Africa has witnessed climate change litigation challenging project approval. The case of Earthlife Africa Johannesburg v The Minster of Environmental Affairs and Others challenged the EIA process and environmental authorization of coal-fired power plant granted by the Department of Environmental Affairs (DEA). The case was based on the following grounds;

  • Human Rights: Section 24 of the Constitution guarantees the right to an environment that is not harmful to health or well-being. Courts have a duty to interpret all legislation to promote the spirit and object of the Bill of Rights. (Section 39(2) Constitution). Thus, interpreting the environmental licencing provisions (such as Section 240 NEMA) in line with the Constitution mandates the prevention of pollution and environmental protection by securing ecologically sustainable development and use of natural resources
  • Breach on statutory provisions:
    • Section 2 National Environmental Management Act (NEMA) provides guiding principles in public decision-making, including sustainable development and a general mitigation principle that environmental harm must be avoided, minimised or remedied (Sections 2(3) & (4) NEMA). This provision, coupled with Section 240 (1) NEMA, implies a mandatory pre-requisite i.e., a climate change impact assessment to be conducted before granting an environmental authorization
    • Section 2 National Environment Management: Air Quality Act (NEMAQA)require decisionmakers to consider air quality impacts of projects while Section 39 mandates licensing authority to consider the current and future air pollution from the activity when considering an application for an Atmospheric Emission License (AEL). Furthermore, the authority must apply practicable environmental option to prevent, control, abate or mitigate the pollution.
    • Section 43(1) of NEMAQA acknowledge the curbing of GHG emission and climate change mitigation via the requirements for an AEL. An AEL concluded in terms of Sections 39(b) and (c) of NEMAQA must specify GHG measurements and reporting requirements.
  • International climate change law: Section 233 of the Constitution instructs courts to follow any reasonable interpretation of legislation that is consistent with international law. The international climate change obligations in Articles 3(3) and 4(1)(f) of the UNFCCCas well as the country’s NDC support a conclusion that climate change impacts and mitigation measures must be included as relevant factors during an environmental authorisation (Earthlife case par. 90-91).

When challenging project authorisation on the grounds of a violation of the Bill of Rights and under NEMA, claimants have wide standing. Individuals and associations can file a case 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 38 Constitution, Section 32(1)NEMA, Earthlife Africa case par. 3).’

Remedies: In the Earthlife Africa case, the court reviewed and set aside the authorisation and remitted back to the licensing authority for reconsideration. Particularly, the court directed the Minister for Environmental Affairs to consider, among others, climate change impact assessment (Earthlife Africa Case par. 126).

Whilst South Africa has not experienced any litigation challenging a national climate policy/law, such a case can based on the following grounds:

Under South African constitution, Locus Standi has been relaxed so that individuals and associations acting in their own interest, on behalf of another person, in the interest of their members and in the public interest can approach court to enforce the Bill of Rights (Section 38 Constitution).

The lack of litigation could be because of absence of climate legislation, which makes it difficult to base climate change claims on specific statutory provisions. The existing climate policy documents (National Climate Change Response Green Paper of 2010, the National Climate Change Response White Paper of 2011) are not binding and therefore not enforceable against the government.