Chapter 2: Climate change legislative development on the African continent

Different Roads to the Same Destination: Climate Change Litigation in South Africa and the Netherlands and the Role of Human Rights in the Mitigation of Climate Change

“…It was, nevertheless, at least arguable that human rights protections and particularly section 24 of the Constitution influenced the court's decision making. 112 While general administrative law has provided the best vehicle for climate change litigation in South Africa, 113 it is also possible to examine these judgments under a human rights lens. The discussion that follows serves to expand on the relevance of section 24 of the South African Constitution in climate change litigation in South Africa, and investigates if some common ground can be found in a human rights context between the Urgenda case of the Netherlands and the Philippi Horticultural In doing so, this section will illustrate that although the Netherlands and South Africa follow different roads within the climate change litigation journey, when viewed through a human rights lens these different roads lead to the same destination, namely the mitigation of climate change.…”

Climate Litigation and Justice in Africa

“…112 It also projects that droughts over the central interior of the country will become more frequent and severe. 113 In South Africa, therefore, drought is a clear and present climate risk. The country's National Climate Change Adaptation Strategy (NCCAS), adopted in 2020, incorporates a drought risk mapping of settlements most at risk, 114 notes the impact of droughts on the availability of water resources, 115 and highlights existing 'products and services' in South Africa to deal with the vagaries of extreme events such as droughts.…”

“…112 The possibility of deferring to the AG in the matter of instituting a climate action in the interest of the public against the state is not remote as climate change is a phenomenon of public significance that may be argued to fall with the AG's remit. As the office of the AG is political in nature, 113 climate change litigation in the interest of the public could be worse off where the AG is considered the more appropriate office to litigate such matter. Or, more probably, the AG office may simply have no interest in litigating climate change issues against the state, even if the measures taken are plainly inadequate.…”

“…110 The applicants seek orders declaring invalid and setting aside the ministerial determination, NERSA's concurrence with that determination, and the 2019 IRP to the extent that they provide for the procurement of 1,500 MW of new coal power capacity. They argue that the procurement of 1,500 MW of new coal-fired power represents a severe threat to the constitutional rights of the people of South Africa, including the section 24 environmental rights, the best interests of the child, 111 and the rights to life, 112 dignity 113 and equality, 114 among other implicated rights. As already mentioned, climate change affects a broad spectrum of human rights, far beyond only environmental rights.…”

The calm before the storm? Child rights climate change litigation in Africa

“…As Rubmle and Gilder indicate, availability of increased finding for climate change litigation is one of the "drivers that has propelled the spate of cases". 123 While it is difficult to predict if such funding would increase for the purposes of rights-based, let alone child-rights based litigation, such orientation would probably take place organically mainly as a result of two factors -first, contrary to some other jurisdictions, for example in China where courts are filling legislative gaps in situations where climate change law policy is not detailed, courts in Africa have shown that the growth in constitutional protections for environmental rights has led to rights based climate change litigation; 124 second, in this regard, the recognition to the right to the environment in article 24 of the African Charter serves as a welcome room for some judicial activism to resolve cases based on a rights basis.…”