South Africa (SA) has for some time, experienced the effects of climate change. The most recent of such experience is the deadly KwaZulu-Natal floods, “creating enormous risk and damage” to the country and its citizens. [i] These experiences coupled with global climate commitments under the Paris Agreement have necessitated South Africa’s adoption of a Climate Change Bill (the Bill), 2022 to drive climate change mitigation and adaptation measures within its jurisdiction. In February of 2022, the Climate Change Bill was tabled before the South African Parliament with the primary objective of “enabling the development for an effective climate change response and a long-term, just transition to a low-carbon and climate-resilient economy and society for South Africa in the context of sustainable development”. The provisions of the Bill apply to the South African Republic – including all organs of State, its internal waters, territorial waters, exclusive economic zone, continental shelf of the Republic, [ii] and the Prince Edward Islands referred to in the Prince Edward Islands Act, 1948 (Act No. 43 of 1948) and is to be interpreted and applied in conjunction with the National Environmental Management Act 1999 to the extent that it borders on climate change.
This Policy Brief analyses the provisions of the Bill by undertaking a comparison with similar Climate Change Framework legislations in other jurisdictions.
This Bill is a Framework Legislation and as is typical of a framework legislation, the bill lays down the foundation for development of a climate change regime within SA with responsibilities assigned to specific entities for the realisation of the intent of the Bill. The creation of the Bill is premised on several recognitions:[iii] that everyone has the Constitutional right to an environment that is not harmful to their health and well-being, and to have the environment protected for the benefit of present and future generations; that anthropogenic climate change represents an urgent threat to human societies and the planet; that South Africa has a role to play in the global effort to reduce the greenhouse gas emissions identified by the international community as the primary drivers of anthropogenic climate change; that South Africa is especially vulnerable to those impacts of climate change which require urgent and appropriate adaptation responses; that South Africa has made international commitments and obligations, including to communicate and implement an effective nationally determined climate change response; that anticipated impacts arising as a result of climate change have the potential to undermine achieving the Republic of South Africa’s developmental goals; and that a climate change policy needs to be implemented in the context of sustainable development objectives and the achievement of national development goals.
HIGHLIGHTS OF THE BILL
1. Objectives of the Bill
In line with the primary objective of the Bill stated above, the bill also states connected objectives which include the following: [iv]
a) providing for a coordinated and integrated response by the economy and society to climate change and its impacts in accordance with the principles of cooperative governance.
b) providing for the effective management of inevitable climate change impacts by enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change, with a view to building social, economic and environmental resilience and an adequate national adaptation response in the context of the global climate change response.
c) making a fair contribution to the global effort to stabilise greenhouse gas concentrations in the atmosphere at a level that avoids dangerous anthropogenic interference with the climate system.
d) ensuring a just transition towards a low carbon economy and society considering national circumstances.
e) giving effect to the Republic’s international commitments and obligations in relation to climate change; and
f) protecting and preserving the planet for the benefit of present and future generations of humankind.
These stated objectives give a holistic overview of the rationale behind the establishment of the Climate Change Bill, and what the Bill seeks to achieve for the people of South Africa. This serves as the starting point for determining and patterning the initiatives and actions that will have to be undertaken by the Republic in combating climate change effects.
2. Policy Alignment and Institutional Arrangements
Every organ of state that exercises a power or performs a function that is affected by climate change or is entrusted with powers and duties aimed at the achievement, promotion, and protection of a sustainable environment, is mandated to review and harmonize their policies, programmes, measures and decisions to ensure that the risks of climate change impact and associated vulnerabilities are considered, and the principles and objects of the Bill are given effect. [v]
In giving effect to the principles and objects of the Bill, organised labour, civil societies, and businesses are allowed to advise on the Republic’s climate change response, the mitigation of climate change impacts and adaptation to the effects of climate change. This makes it possible for the country’s climate change response to be inclusive and take into consideration all facets of the economy.[vi]
The obligation placed on every organ of the state with a function that advances climate change is a better approach than name calling or listing certain organisations that the Act should apply to. It allows for a case-by-case analysis of every organ’s role and function to ascertain the level of involvement that is required from same. This way, there is hardly any organ which is likely to be eliminated from climate responsibility. At the very least, every organ consumes energy/electricity in the carrying out of its responsibilities and may need to incorporate energy efficiency principles in its energy consumption. Furthermore, it is commendable that provision is made for consultation with certain entities in the formulation of climate change measures. It is also commendable that this provision on Policy and Institutional Alignment incorporates every level of the Republic’s leadership in its climate mitigation and adaptation responsibility. It allows for climate mitigation efforts to be equally implemented in every province and on all levels of the Republic, thus promoting cooperative governance among the institutions.
a. Forums on Climate Change
The Bill also designates every Premier’s intergovernmental forum, established in terms of section 16 of the Intergovernmental Relations Framework Act 2005, as a Provincial Forum on Climate Change[vii] governed by sections 17 and 19 of the Intergovernmental Relations Framework Act.[viii] A Provincial Forum on Climate Change is required to coordinate climate change response actions in its relevant province in accordance with the Bill; and provide a report to the President’s Coordinating Council in accordance with section 20(a) of the Intergovernmental Relations Framework Act, such report containing climate change considerations.[ix] Where the Provincial Forum is in need of formal technical support, it is allowed to establish an intergovernmental technical support structure in terms of section 30 of the Intergovernmental Relations Framework Act.[x]
Every District’s intergovernmental forum, established in terms of section 24 of the Intergovernmental Relations Framework Act, also serves as a Municipal Forum on Climate Change under the Bill[xi] and is governed by sections 25 and 27 of the Intergovernmental Relations Framework Act.[xii] A Municipal Forum on Climate Change under the Bill is required to coordinate climate change response actions for those operational activities within its municipality and provide a report on such actions to the relevant Provincial Forum on Climate Change.[xiii] Where the Municipal Forum is in need of formal technical support, it can establish an intergovernmental technical support structure in terms of section 30 of the Intergovernmental Relations Framework Act.[xiv]
The Provincial Forum and Municipal Forum exist to curate proper climate change response actions within the provinces and municipalities in South Africa, thus bringing South Africa’s climate change mitigation strategy to the grassroot level. The Forums also provide support to the President’s coordinating council by providing reports on their climate change response actions which can further guide the make-up of the national climate change mitigation strategy.
b. Presidential Climate Commission
The Bill vests the President with the power to establish a Presidential Climate Commission and appoint no more than 30 members comprising representatives of government, organised labour, civil societies and businesses to advise on the Republic’s climate change response, the mitigation of climate change impacts and adaptation to the effects of climate change.[xv] The Presidential Climate Commission is chaired by the President[xvi] who may appoint the members of the Presidential Climate Commission for a determined period of time.[xvii] The functions of the Presidential Climate Commission include advising on the Republic’s climate change response; advising government on the mitigation of climate change impacts, including through the reduction of emissions of greenhouse gases, and providing monitoring and evaluation of progress towards government’s emissions reduction and adaptation goals.[xviii]
According to the Bill, the composition of the Presidential Climate Commission must — (a) broadly reflect the demographics and gender composition of the Republic; and (b) be appropriately qualified and have expertise in the socio-economic, environmental, and broader sustainability field.[xix] These institutional arrangements are placed to promote an integrated and coordinated approach to the management of adaptation measures as stated in the Bill, in response to the impacts of climate change by all organs of state. The Bill also positively factors gender considerations, given the role of women in combating climate change in general.
However, the mechanism for providing such advice by the Presidential Climate Commission is not stated. Are the organs saddled with this responsibility to call for the advice of these listed groups or is the onus on the groups to take the initiative for providing advice? On what basis are these organs expected to accept the advice? There are established cases where individual groups bring climate actions against states for failure to take or implement effective climate regimes.[xx] In addition, states are likely to take an economic stand against climate measures with the possibility of interfering with major streams of income, as such, individual groups are likely to be more radical in their climate response opinions.[xxi] Where there is a conflict of advice and the position of these institutions, what is the procedure for the way forward?
3. Climate Change Response
According to the Bill, within one year of the publication of the National Adaptation Strategy and Plan required in section 18 of the Bill, a Member of the Executive Council (MEC) who has been assigned responsibility for the environment by a Premier and a Mayor of a metropolitan or district municipality, as the case may be, must undertake a climate change needs and response assessment for the province, metropolitan or district municipality.[xxii] The climate change needs and response assessment, must achieve the following:[xxiii]
a) identify climate change response considerations and options.
b) analyse the nature and characteristics of the province or metropolitan or district municipality, and the unique climate change needs and risks that arise as a result of such nature and characteristics.
c) identify and map areas, ecosystems and communities within the sphere of operations of the province, district or metropolitan municipality that are vulnerable to the impacts of climate change.
d) be based on the best available science, evidence and information; and
e) identify and determine measures and mechanisms to manage and implement the required climate change response.
Both parties are required to review and if necessary, amend the climate change needs and response assessment at least once every five years. For the purpose of such review or amendment, they must also assess the extent to which their constitutionally mandated functions are affected by climate change and formulate steps to address these effects in the performance of their functions.[xxiv] Within two years of undertaking the climate change needs and response assessment, they will also be required to develop and implement a climate change response implementation plan in conjunction with provincial, metropolitan or district municipal planning instruments, policies and programmes. The climate change response implementation plan will be reviewed and, if necessary, amended at least once every five years.[xxv] The climate change response implementation plan, must:[xxvi] be informed by the climate change needs and response assessment; include measures or programmes relating to both adaptation and mitigation in line with the constitutional mandate of the province, or the metropolitan or district municipality; and comply with any requirements inclusive of the relevant technical guidelines as may be prescribed by the Minister responsible for environmental affairs.
Climate Change has been recognised as an urgent environmental challenge that requires an effective and progressive response. [xxvii] The requirement for a review and amendment of climate change needs and response assessment at least once in five (5) years is forward looking as it considers the need for a progressive solution and commitments to address climate challenges. As SA advances and as its mitigation and adaptation measures advance, there will be need for more ambitious climate efforts and policies to be formulated and implemented.
4. National Adaptation to impacts of Climate Change
The Bill provides directives on national adaptation measures to be undertaken against impacts of climate change in the following manner:
a. National Adaptation Objectives
According to the Bill, the Minister responsible for environmental affairs must within one year of the passing of the Bill determine by notice in the Gazette — (a) national adaptation objectives that will guide the Republic’s adaptation to climate change impacts; (b) indicators for measuring progress towards achieving the national adaptation objectives; and (c) a date by which the national adaptation objectives should be incorporated into all relevant national planning instruments, policies and programmes which address, or are affected by, the actual and potential impacts of climate change.[xxviii]
b. Adaptation Scenarios
The Minister must also within one year of the coming into operation of the Bill/Act, develop adaptation scenarios that anticipate the likely impacts of climate change in the Republic and associated vulnerabilities over the short, medium and longer term.[xxix]
c. National Adaptation Strategy and Plan
The Bill calls for the creation of a National Adaptation Strategy and Plan through which climate change adaptation within the Republic will be managed in a coherent and coordinated manner. [xxx] The Plan is to be developed and published by the Minister responsible for environmental affairs in consultation with the Ministers responsible for the functions listed in Schedule 2 of the Bill. [xxxi]
The purpose of the National Adaptation Strategy and Plan according to the Bill, includes:[xxxii]
· achieving a reduction in the vulnerability of society, the economy, and the environment to the effects of climate change.
· strengthening the resilience of the socio-economic and environmental system against the effects of climate change.
· enhancing the adaptive capacity of society, the environment and economy to the impacts of climate change.
· reducing the risk and vulnerabilities to current and future climate scenarios.
· achieving the national adaptation objectives.
· providing a strategic and policy directive for adaptation to the impacts of climate change; and
· providing an integrated and coordinated approach to the management of adaptation measures in response to the impacts of climate change by organs of state in all spheres of government.
Also, each Minister in charge of a task specified in the Second Schedule must examine climate change vulnerabilities of its functions and invent a plan to address same within a year of the National Adaptation Strategy and Plan's release. [xxxiii] A sector adaptation strategy and plan, based on the vulnerability assessment, must subsequently be developed, and put into effect by the relevant Minister.
The Sector Adaptation Strategy and Plan must also be periodically reviewed and, if necessary, amended. [xxxiv] In addition, the Minister may require certain documents to be provided for the purpose of the National Climate Change Response White Paper, on a regular basis. The information contained in these documents must be synthesized and compiled to publish a Synthesis Adaptation Report for consideration by Cabinet and to be used in the Republic’s national and international reporting processes. [xxxv]
The Integration of other previously existing legislations that touches on climate change helps to avoid multiplicity of functions and alignment of regulations for efficient Climate Change regulation. Additionally, the provision for adaptation measures which focuses on present climate conditions and measures that addresses potential/anticipated climate conditions that are expected to materialise in the near future is forward looking as it allows for effective mitigation of the effects of climate change to lives and properties.
5. Greenhouse Gas Emissions and Removals
The Act specifies that the Minister must determine a national greenhouse gas emissions trajectory after consultations with the Cabinet. [xxxvi] It should be noted that this trajectory shall be reviewed every five (5) years or in circumstances where the review is considered necessary. [xxxvii] The features of this trajectory include:
· A national greenhouse gas emissions reduction objective represented by a quantitative description of the total amount of greenhouse gas emissions projected to be emitted during a specified period in the Republic.
· Current and projected amounts of greenhouse gas emissions in the Republic.
· The trajectory must be consistent with the principles and objectives of the Bill and international obligations of South Africa.
Until the Minister publishes this trajectory, the trajectory in the third Schedule of the Bill will serve as the national greenhouse gas emissions trajectory for South Africa.[xxxviii] The Third Schedule contains the interim National Greenhouse Gas Emissions Trajectory.
The Minister is vested with the authority to list the industries and subsectors that will receive a sectoral emission.[xl] The Minister must establish sectoral emissions objectives for the specified sectors and subsectors after publishing such a list. Sectoral emissions targets must coincide with the trajectory of national greenhouse gas emissions.[xli] Every five years after their initial publication, the sectoral emissions targets are subject to review.[xlii] The article further mandates that the relevant Ministers inform the Presidency on an annual basis of the status of the achievement of the pertinent sectoral emissions targets.[xliii] The Minister is required to compile these reports and provide the Cabinet with yearly progress updates on the sectoral emissions targets.[xliv]
In addition, the Minister is required to publish a list of greenhouse gases that, in his or her reasonable opinion, either cause or are likely to cause climate change or worsen it.[xlv] The Minister must also make public a list of all activities that emit one or more of the listed greenhouse gases and that the Minister has reason to believe are responsible for, will likely be responsible for, or will worsen climate change.[xlvi]
Furthermore, the Minister must allot a carbon budget to each individual engaging in a designated activity. The bill outlines the minimal criteria to be considered when allocating a carbon budget and its required composition. A greenhouse gas mitigation plan must be created and submitted to the Minister by everyone who has received a carbon budget. A greenhouse gas mitigation plan must adhere to all the specifications mentioned in this section as well as any additional guidelines the Minister may provide.[xlvii]
The Minister is required by section 25 to list the synthetic greenhouse gases that must be eliminated or reduced. This provision of the bill vests the Minister with the authority to create a plan for the reduction or elimination of the synthetic greenhouse gas after consulting with the pertinent Ministers and individuals who may be impacted. The plan must adhere to the specifications as contained in the bill and be reviewed and revised every five years. The section also gives the Minister the authority to assign carbon budgets to individuals who engage in activities that result in the emission of artificial greenhouse gases. [xlviii] In addition, the Bill stipulates that the National Greenhouse Gas Inventory shall be developed, and the National Greenhouse Inventory Report shall be compiled annually. [xlix]
South Africa is an oil producing country ranked as the 42nd oil producer in the world in 2016.[l] Considering that the Energy Sector is responsible for a considerable percentage of anthropogenic climate change, it is anticipated that the Energy sector will form a huge part of this sectoral/subsector emission targets with the issuance of carbon budget to designated entities. This is likely to see an upscale of renewables utilization and deployment of energy efficiency mechanisms.
6. General Matters and Transitional Arrangements
The Bill specifies that the Minister is empowered to develop regulations relating to its implementation.[li] The Bill goes further to specify the process of consultation between the Minister, the MEC, and Mayor regarding exercising their powers granted by the Bill. It is important that the consultation is appropriate and is in accordance with the principles of cooperative governance as set out in the Constitution[lii] of South Africa.[liii]
In exercising the authorities indicated in the clause, the Minister, a MEC, or a mayor must follow the procedure outlined in the Bill for public engagement.[liv] Additionally, the Bill gives the Minister and a MEC the authority to grant approval by virtue the proposed Act in compliance with the pertinent NEMA requirements.[lv] Also, information shall be supplied subject to the terms of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), and the Protection of Personal Information Act, 2013, according to section 31 of the Constitution, which addresses the right to access information (Act No. 4 of 2013).[lvi]
The Bill provides that it is an offence to not prepare and submit a greenhouse gas mitigation plan to the Minister, as contained in section 24(4) and this offence is punishable under the National Environmental Management Act.[lvii] The Bill further stipulates that anyone may appeal a decision made by a person acting under the Minister's or that MEC's authority to the Minister or a MEC, and that such an appeal must be handled in accordance with section 43[lviii] of the NEMA.[lix]
· First Schedule to the Climate Change Bill
The First Schedule to the Climate Change Bill lists the functions relevant to the development of Sectoral Emissions Targets[lx]. These functions include Agriculture; Forestry; Fisheries; Cooperative Governance; Traditional Affairs; Economic Development; Energy; Environment; Health; Human Settlements; International Relations; Mineral Resources; National Treasury; Public Enterprises; Public Works; Rural Development; Land Reform; Science; Technology; Trade; Industry; Transport; Water Affairs; and Sanitation. [lxi]
MATTERS ARISING: PITFALLS OF THE CLIMATE CHANGE BILL
A major pitfall of the Climate Change Bill is its lack of strong provisions on compliance and enforcement. The only offence in the Bill is the failure to provide a greenhouse gas mitigation plan in terms of Section 24 and there are zero penalties in the Bill regarding a failure to implement such a plan. Rather, the Bill states that an offender will be liable to the penalties contemplated in section 49B (2) of the National Environmental Management Act. This weakness in the Bill’s framework on enforcement makes it a toothless instrument based on the prevailing status of the Bill in the event of a conflict between its provisions and the provisions of any other legislation specifically relating to climate change. [lxii]
Another example of this weakness in the Bill is in the fact that while a previous version of the Bill, Climate Change Bill 2020, made it a criminal offence for an entity to exceed its carbon budget, and mandatory that the entity would have to pay an increased carbon tax rate upon exceeding its carbon budget, this clause has now been removed in the current version of the Bill. It may be argued that this removal vastly reduces the pressure on polluting companies to take strong enough action to limit their emissions. However, this mechanism can still be implemented by sectoral entities who have been saddled with the responsibility of formulating emission mitigation and adaptation plans within their administration.
Furthermore, the Bill currently does not have important mitigation mechanisms such as determining an emissions trajectory, allocating carbon budgets, and establishing sectoral emissions targets within a timeframe or deadline. The Bill does not provide for public access to climate and emissions data which will be important for the public to scrutinise key data such as carbon budgets (and any exemptions that have been granted), current emissions levels and emissions reduction plans. Any inadequate disclosure of these key data will vastly hinder full accountability. It may also leave room for the practices of green washing where companies convey false impressions or provide misleading information about products as being more environmentally friendly.
Furthermore, according to the Intergovernmental Panel on Climate Change (IPCC), limiting global temperature increase to 1.5°C means that “global net human-caused emissions of carbon dioxide (CO2) would need to drop by about 45 percent from 2010 levels by 2030, reaching ‘net zero’ around 2050.”[lxiii] South Africa’s current Nationally Determined Contribution (NDC) which was updated in 2021, is already relatively weak and does not adequately ensure that the country remains within the 1.5°C of global warming – the minimum safe limit for its climate. Despite this, the Climate Change Bill in its current version incorporates the much weaker, and no longer applicable, NDC from 2015 in Schedule 3 of its provisions, this commitment now having been replaced by the 2021 NDC.
CASE STUDIES
Nigeria and the United Kingdom are examples of countries with comprehensive and pioneering climate change laws focused on mitigating climate change effects. In analysing the South Africa Climate Change Bill, both countries will be looked at as guides to determine the ways in which the Bill can be refined.
a. Nigeria
Nigeria’s Climate Change Act serves as the first stand-alone comprehensive climate change legislation in West Africa and serves as a strategic tool for climate change advocacy and a foundation for proper climate change litigation. The comprehensiveness of the Climate Change Act lies in the fact that it provides a framework for climate actions at the national level. Most of the initiatives envisioned in the Climate Change Act builds on prior climate change policies, most of which were adopted in 2021 i.e., the Revised National Climate Change Policy; national climate change programmes; the 2050 Long-Term Low Emission Vision, Nationally Determined Contributions, etc. [lxiv]
The Act sets a net-zero target for 2050-2070 and codifies national climate actions by mandating the Ministry of Environment to set, among others, a carbon budget, keeping average increase in global temperature within 2oC and pursuing efforts to limit the temperature increase to 1.5oC above pre-industrial levels.[lxv] It further mandates the formulation of a National Climate Change Action Plan in every five-year cycle to ensure that the country’s national emission profile is consistent with its carbon budget goals. [lxvi]
The Act obligates any private entity with employees numbering 50 and above to put in place measures to achieve the annual carbon emission reduction targets in line with the Climate Change Action Plan; and designate a climate change officer who will be responsible for submitting annual reports to the National Climate Change Secretariats, concerning meeting its carbon emission reduction targets. [lxvii]
The Act also establishes the Climate Change Fund envisioned as a financing mechanism for prioritized climate actions and interventions. [lxviii] The promotion and adoption of nature-based solutions to reducing GHG emissions and mitigate climate change is also encouraged. [lxix]
The Climate Change Act notably provides a strong framework for climate action to achieve Nigeria’s goals on climate mitigation and adaption. The obligations imposed on public and private entities to promote low carbon economy and sustainable livelihood, provide a sound legal foundation for climate litigation. The Act makes it actionable to bring a claim for the potential failure of the National Council on Climate Change to regulate offenses and penalties from non-compliance with the climate obligations imposed by the new law on any person, private or public entity that acts in a manner that negatively affects efforts towards mitigation and adaptation measures made under the Act. [lxx]
The Act empowers a Court, before which a suit regarding climate change or environmental matters is instituted, to make an order: (a) preventing, stopping or discontinuing the performance of any act that is harmful to the environment; (b) compelling any public official to act to prevent or stop the performance of any act that is harmful to the environment; (c) compensating victims directly affected by the acts that are harmful to the environment. [lxxi]
b. United Kingdom
The United Kingdom’s 2008 Climate Change Act has been regarded as pioneering or the first of its kind, as its approval benefitted from a broad cross-party consensus and a strong civil society engagement. The Act has successfully helped the United Kingdom deliver sustained reductions in greenhouse gas emissions. [lxxii]
The Act sets a long-term emission goal comprising emission reduction targets. These emission reduction targets are codified in five-year carbon budgets, which the government is required to achieve. [lxxiii] The Act also requires the government to publish a climate change risk assessment every five years and to develop a National Adaptation Programme in responding to the risk assessment. [lxxiv]
Originally, the Act committed the United Kingdom to reduce its greenhouse gas emissions by 80% by 2050, compared to 1990 levels. However, in 2019, the emission reduction target of the Act was amended to reflect the United Kingdom’s net-zero ambition. [lxxv]
The Act also strengthened the use of independent evidence-based advice in policy making and determining long-term goals. Carbon budgets are established based on advice from an independent expert body – the Climate Change Committee (CCC). The Committee reports on any progress in climate change mitigation to the Parliament. The government is required to take account of the CCC’s advice and explain reasons for any deviation from such advice. [lxxvi]
While there are limited penalties for non-compliance with the carbon budgets, the Act sets out a transparent process and a framework for accountability. Judicial review cases can be brought by members of the public and other interested parties with legal standing. [lxxvii]
Lessons that could be applied to the South African Climate Change Bill using the above case studies are:
(i) It is important that compliance and regulatory provisions in the Climate Change Bill are fully implemented. There should be stringent sanctions and penalties for public and private entities that exceed carbon budgets.
(ii) The Bill should provide an adequate framework for financing of climate change mitigation and adaptation plans such as the Climate Change Fund in Nigeria’s Climate Change Act.
(iii) Individuals and groups including communities, civil society organisations and labour organisations with legal standing should be able to bring claims against public entities for failure to properly execute the provisions of the Bill as required.
(iv) Like the United Kingdom’s Climate Change Act, the process of policy making and target setting under the South African Climate Change Bill should be based on independent evidence-based advice from committees with expertise in climate change mitigation and adaptation.
RECOMMENDATIONS
The South Africa Climate Change Bill is a welcome development for the country towards achieving a progression on climate change responses. There are however a few segments where amendments and clarifications are suggested. The following are the recommended amendments to the provisions of the South Africa Climate Change Bill:
· Sectoral Emission Targets
The Bill does not make explicit mention of the national departments that would oversee relevant sectors. Although Schedule 1 of the Bill refers to the “Functions relevant to the development of Sectoral Emissions Targets” and lists national departments such as Energy, Mineral Resources, National Treasury, Public Enterprises and Transport, there is no mention to Schedule 1 anywhere else in the Bill. As a result, this will need to be corrected and adequately reflected. [lxxviii]
Also, Schedule 3 of the Bill needs to reflect the updated Nationally Determined Contribution (NDC) and do away with the outdated NDC that South Africa submitted to the United Nations Framework Convention on Climate Change in September 2015, which became South Africa’s first NDC in November 2016, following the ratification of the Paris Agreement. [lxxix]
· Listed GHGs and Carbon Budgets
The Bill makes no provision for the Minister to publicize the identified greenhouse gases (GHGs) and activities within specific times. Similarly, there is no set timetable for allocating carbon funds. Given that this is one of the primary means of facilitating a just transition, it is surprising that the Bill makes no timetables. After the public comment period, this should be one of the matters reviewed by the legislature. lxxx]
In addition, the Bill needs to reflect timeframes prescribed for government departments to take action in promoting the phasing-down and phasing-out of synthetic GHG emissions.[lxxxi] The timeframe in which the Minister, in consultation with the Ministers responsible for the GHG-emitting sectors, must declare certain GHGs to be synthetic GHGs, prescribe thresholds for the use of synthetic GHGs and prescribe periods for their phasing-down or phasing-out, should be expressly provided in the Bill.
· Public-Private Coordination
It is recommended that provisions requiring public-private coordination should be incorporated in the Climate Change Bill to encourage public and private investments and uniformity in terms of relationships with all stakeholders involved.[lxxxii] In achieving this, the Bill should also be amended to reflect a transparent framework for reporting, measuring, monitoring, and verifying sources of emissions over time. There should be a requirement for companies, financial institutions, and State entities to disclose climate change risks with appropriate plans to address the possible risks. This will create more enlightened decision making on which communities are most vulnerable to the effects of climate change and will further aid the government’s response to climate change. [lxxxiii]
· Human-Rights centred approach
The Bill is not founded on human rights or constitutional prerogatives (which include the foundation principles of the Bill of Rights – the rights to equality, dignity, and life). By failing to centre climate change as a human rights concern, the Bill restricts climate change to science and the abstract, commonly perceived as a non-human-related idea, which is the opposite of what the Bill should achieve. From the standpoint of constitutional law, it is proposed that the Bill be revised in this manner to address the link between climate change and fundamental human rights. [lxxxiv]
· Implementation
Judging by the severity of the issue of climate change, it is recommended that the Bill be strengthened in terms of capacitating and empowering organs of state to implement adequate and effective climate response measures. This can be achieved through the incorporation of important and practical provisions in the Bill that speak more to enforcement and implementation. The Bill should adequately address the responsibility of organs of the state to consider climate response measures in decision making processes. [lxxxv]
Furthermore, the bill prescribes that different sectors — such as energy, agriculture, transport, water and sanitation and human settlements — need to come up with sector adaptation strategies and plans, four years after the law comes into operation. However, these timeframes may not be commensurate with the urgency of the climate crisis. As seen from the droughts and events like the KwaZulu-Natal floods, the impacts of global warming are happening and intensifying, and adaptation and response need to urgently be mainstreamed and elevated. South Africa is in a position now where it needs to have a committed climate action within the next year or two.[lxxxvi]
· Additional Offences and Penalties
As stated, the Bill only only identifies one offence - the failure to prepare and submit a GHG mitigation plan to the Minister. If an entity is convicted for failing to prepare and submit a GHG mitigation plan to the Minister, the Bill provides that section 49B(2) of NEMA would apply (i.e. maximum fine of R5 million, imprisonment for a maximum period of five years or both such fine and such imprisonment).[lxxxvii]
Therefore, based on the current version of the Bill, an entity that exceeds its carbon budget, fails to report on the progress against its allocated carbon budget or supplies false or misleading information, would not be guilty of an offence under the Bill, although such companies will be liable to pay a greater amount of carbon tax in terms of the Carbon Tax Act 15 of 2019.
Given that Government has acknowledged that South Africa needs to address its climate change response as a matter of urgency, more offence will need to be added to the Bill before it comes into effect. These offences should be geared towards discouraging both public and private entities from willfully or negligently exceeding carbon budgets – with strong sanctions including the revoking of a licence to operate if budgets are exceeded.
In addition, from an institutional perspective, applicable organs and institutions within the Bill should be mandated with stricter obligatory requirements such as the allocation of emission reduction percentages and/or assigning emission allowance(s) within regulated emission cap limits; to stimulate greater stakeholder effort towards advancing the spirit of the bill.
[i] Mail & Guardian, Latest Articles on KwaZulu-Natal Floods. Available at https://mg.co.za/tag/kwazulu-natal-floods/
[ii] South Africa’s internal waters, territorial waters, exclusive economic zone, and continental shelf are referred to in sections 3, 4, 7 and 8 of the Maritime Zones Act, 1994 (Act No.15 of 1994), respectively.
[iii] See Preamble to the Climate Change Bill
[iv] Section 2
[v] Section 7(1)
[vi] Section 7(2)
[vii] Section 8(1)
[viii] Section 8(2)
[ix] Section 8(3)
[x] Section 8(4)
[xi] Section 9(1)
[xii] Section 9(2)
[xiii] Section 9(3)
[xiv] Section 9(4)
[xv] Section 10(1)
[xvi] Section 10(3)
[xvii] Section 10(2)
[xviii] Section 11
[xix] Section 12(2)
[xx] Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others (Case no. 65662/16) 2016
[xxi] AES Summit Generation Limited and AES-Tisza Erömü Kft. v. Republic of Hungary (II)(ICSID Case No. ARB/07/22)
[xxii] Section 15(1)
[xxiii] Section 15(2)
[xxiv] Section 15(1)
[xxv] Ibid
[xxvi] Section 15(3)
[xxvii] North Atlantic Treaty Organisation, “NATO Climate Change and Security Action Plan” (2021)
[xxviii] Section 16(1)
[xxix] Section 17(1)
[xxx] Section 18(1)
[xxxi] Section 18(2)
[xxxii] Section 18(4)
[xxxiii] Section 19
[xxxiv] Section 19
[xxxv] Section 20
[xxxvi] Section 21(1)
[xxxvii] Section 21(4)
[xxxviii] Section 21(3)
[xxxix] Schedule 3
[xl] Section 22(1-3)
[xli] Section 22(4)
[xlii] Section 22(7)
[xliii] Section 22(8)
[xliv] Section 22 (9-10)
[xlv] Section 23(2)
[xlvi] Section 23(5)
[xlvii] Section 24
[xlviii] Section 25
[xlix] Section 26
[l] WorldOMeter, South Africa Oil: Oil Consumption in South Africa (2016) <https://www.worldometers.info/oil/south-africa-oil/#:~:text=Oil%20Production%20in%20South%20Africa&text=South%20Africa%20produces%20136%2C517.00%20barrels,reserves%20(as%20of%202016)>
[li] Section 27
[lii] Chapter 3 of the Constitution of South Africa, 1996
[liii] Section 28
[liv] Section 29
[lv] Section 30
[lvi] Section 31
[lvii] Section 32(1); section 49B(2) of NEMA provides: “the case of a first conviction, of a fine not exceeding R5 million or imprisonment for a period not exceeding five years, or of both such fine and such imprisonment, and in the case of a second or subsequent conviction, of a fine not exceeding R10 million or imprisonment for a period not exceeding 10 years, or of both such fine and such imprisonment”
[lviii] Section 43 of NEMA provides, “(1) Any affected person may appeal to the Minister against a decision taken by any person acting under a power delegated by the Minister under this Act. (2) An appeal under subsection (1) must be noted and must be dealt with in the manner prescribed.
[lix] Section 33(1)
[lx] Quantitative or qualitative goals informed by sectoral policies and measures that may lead to greenhouse gas emission reductions, for the sector over a defined period of time.
[lxi] Schedule 1
[lxii] Section 6
[lxiii] IPCC, Summary for Policymakers of IPCC Special Report on Global Warming of 1.5°C approved by governments. Available at https://www.ipcc.ch/2018/10/08/summary-for-policymakers-of-ipcc-special-report-on-global-warming-of-1-5c-approved-by governments/#:~:text=Global%20net%20human%2Dcaused%20emissions,removing%20CO2%20from%20the%20air
[lxiv] IUCN, A Review of Nigeria's 2021 Climate Change Act: Potential for Increased Climate Litigation. March 2022. Available at https://www.iucn.org/news/commission-environmental-economic-and-social-policy/202203/a-review-nigerias-2021-climate-change-act-potential-increased-climate-litigation
[lxv] Section 19 of Nigeria’s Climate Change Act 2021
[lxvi] Section 20 of Nigeria’s Climate Change Act 2021
[lxvii] Section 24 of Nigeria’s Climate Change Act 2021
[lxviii] Section 15 of Nigeria’s Climate Change Act 2021
[lxix] Section 27 of Nigeria’s Climate Change Act 2021
[lxx] Section 34(2) of Nigeria’s Climate Change Act 2021
[lxxi] Ibid
[lxxii] OECD, The United Kingdom’s pioneering Climate Change Act. Available at https://www.oecd.org/climate-action/ipac/practices/the-united-kingdom-s-pioneering-climate-change-act-c08c3d7a/
[lxxiii] Section 4 of the United Kingdom’s Climate Change Act of 2008
[lxxiv] Section 56
[lxxv] Section 1
[lxxvi] Part 2
[lxxvii] OECD, The United Kingdom’s pioneering Climate Change Act. Available at https://www.oecd.org/climate-action/ipac/practices/the-united-kingdom-s-pioneering-climate-change-act-c08c3d7a/
[lxxviii] Fasken (2022), available at https://www.fasken.com/en/knowledge/2022/06/9-key-aspects-of-south-africas-much-anticipated-climate-change-bill
[lxxix] Ibid
[lxxx] Fasken (2022), available at https://www.fasken.com/en/knowledge/2022/06/9-key-aspects-of-south-africas-much-anticipated-climate-change-bill
[lxxxi] Ibid. Unlike GHGs, synthetic GHGs are man-made chemicals that do not occur naturally, such as hydrofluorocarbons, perfluorocarbons, and sulphur hexafluorides. Synthetic GHGs are often used in fire extinguishing, foam production, refrigeration and cooling and typically have a much higher global warming potential than naturally occurring GHGs.
[lxxxii] UNFCCC, available at https://unfccc.int/sites/default/files/resource/South%20Africa%20BUR4%20to%20the%20UNFCCC.pdf
[lxxxiii] Institute for Economic Justice, Is the South African Climate Change Bill responsive to adaptation needs? June 2022. Available at https://www.iej.org.za/wp-content/uploads/2022/06/Factsheet-Is-the-Climate-Change-Bill-responsive-to-adaptation-needs-June-2022.pdf
[lxxxiv] Climate Score Card, available at https://www.climatescorecard.org/2018/12/pass-the-south-african-climate-change-bill/
[lxxxv] Ibid at note 85
[lxxxvi] Mail & Guardian, Climate change bill: ‘One of the most important draft laws to cross the desks of SA’s lawmakers’. May 19, 2022. Available at https://mg.co.za/environment/2022-05-19-climate-change-bill-one-of-the-most-important-draft-laws-to-cross-the-desks-of-sas-lawmakers/
[lxxxvii] Section 24