Is South Africa ripe for a climate change class action lawsuit?

The 2018 version of the UN’s IPCC report warned that we have just 12 years to limit devastating climate change. That means we need to pull out all the stops, and will inevitably include approaching the courts to compel reluctant agencies to align with this need.

South Africans can be forgiven for having doubts that there is sufficient political will to tackle the issue with any serious intent. This publication and various other forums saw a dissection of a number of political party manifestos leading up to the recently concluded 2019 elections. The understanding of, and commitment to, tackling climate change was at the very least deficient, and in some cases displayed a disturbing misunderstanding of the science.

While the issue receives negligible attention in headlining speeches and policy statements from the state, developments that take us in the opposite direction, such as the recent offshore gas find, are trumpeted as game-changing boons.

Class action lawsuits in South Africa

This, of course, includes S24 which gives citizens the right to an environment which is not harmful to health and wellbeing. It also protects the environment for the benefit of present and future generations.

The jurisprudence was fleshed out in a 2012 Supreme Court of Appeals case where certain factors for certification of a class action were laid out, including:

• A cause of action raising a triable issue;

• That the right to relief depends upon the determination of issues of fact or law, or both, common to all members of the class;


• That the relief sought, or damages claimed, flow from the cause of action and are ascertainable and capable of determination;


• That where the claim is for damages, there is an appropriate procedure for allocating the damages to the members of the class;


• That the proposed representative is suitable to be permitted to conduct the action and represent the class; and


• Whether, given the composition of the class and the nature of the proposed action, a class action is the most appropriate means of determining the claims of class members.

Suing the state for not taking appropriate action

The State is likely to defend a claim that it is not taking appropriate or sufficient action. The Climate Change Bill was introduced in June 2018, with the period for public comment ending two months later. The objects of the (eventual) Act are to:

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  Deliver a co-ordinated and integrated response to climate change;

  
  


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  Enhance the nation’s adaptive capacity, strengthen resilience and reduce vulnerability to climate change; and

  
  


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  Contribute to the global efforts to stabilise greenhouse gas (GHG) concentrations in the atmosphere to levels that avoid dangerous anthropogenic interference with the climate system.

  
  

The Bill goes on to compel the Minister to establish a national framework to realise these objects “within two years of the relevant section taking effect”. The earliest that this period could commence is when the Act itself is promulgated. The Bill also compels MECs and mayors to develop climate change response plans, again within two years of the relevant section coming into effect.

But there are no actual timeframes for meaningful action. Even if the designated functionaries complete their high-level plans in time, it is conceivable that years could elapse before we see the state assertively policing meaningful emission reduction measures. The vagueness and generality could leave the state open to allegations of not acting firmly or quickly enough.

Suing the state for taking inappropriate action

Another possible angle for potential litigants would be to challenge action that is currently being taken, or intended to be taken, by the state which is deemed to exacerbate the destructiveness of climate change.

The Department of Energy could find itself the target of action in its capacity as author and guardian of the Integrated Resource Plan (IRP) which determines the mix of electricity generation. The latest 2018 version was subject to public debate late last year and is now in a closed-door review process. The plan maps out generation sources up to 2030 and envisages 46% coal-fired power and 16% gas at that time. While on a better trajectory than in the past, these levels of fossil fuel generation are also likely to compromise internal and international emission reduction commitments.

Suing for damages caused by climate change

Suing corporations

Eskom, as the emitter of around 50% of SA’s GHGs, might seem like low-hanging fruit for a class action. But it must be borne in mind that the utility takes its cue from the IRP discussed above, and therefore that any fault that is established should be laid at the Department of Energy’s door.

Petrochemical giant Sasol is the next-largest emitter and therefore also vulnerable to claims. Developments in global climate change litigation so far seem to indicate less success against corporations than against governments. When reduced to the simplest terms, a corporation can argue that it is merely meeting market demand, that the users of its products share liability and that it is the government that should be enabling systems that do not require fossil fuel.

Class actions are legally and financially challenging, but South Africa has a solid network of environmental and social justice organisations that are no strangers of the courts.

Brandon Abdinor is an attorney and mediator practising in Johannesburg, and also consults on dispute resolution, governance and organisational HR best practice.