In July 2024, the President of South Africa signed the new Climate Change Act (“the Act”) which shall be proclaimed shortly.
The Act is a comprehensive attempt at setting out the broad principles to be followed by the various officials of the State in their application of the constitutional right of all citizens to an environment which is healthy, protected, secure, and just.
Broad Categories Requiring Active Protection
In essence, the Act identifies the categories which require active protection and allocates such categories amongst various governmental and parastatal structures. These structures are then tasked with the formulation and implementation of environmental plans designed to establish the necessary protection of the environment and, further, compliance with international standards, where reasonably achievable.
The purpose of this article shall be to focus only on some of the fundamental steps which must be undertaken by the main roleplayers, in particular, the Minister responsible for Environmental Affairs (“Minister”), the various MECs of the Provinces (“MECs”), and, lastly, the Mayors of our Municipalities (“Mayors”).
National Adaptation Objectives
Of first importance is that within one year of the commencement of the Act, the Minister must determine the national adaptation objectives, which will guide the Republic’s adaptation to climate change impacts, together with the development of resilient and sustainable development. The Minister must publish those objectives by notice in the Government Gazette.
These objectives must then be managed in terms of a National Adaptation Strategy and Plan, which strategy and plan must be published by the Minister within two years of coming into operation of the Act.
Climate Change Needs and Response Assessment
MEC’s and Mayors are thereafter obliged, within one year of the publication of the National Adaptation Strategy and Plan, to undertake their own Climate Change Needs and Response Assessment.
Thereafter, within two years of such formulation, the MECs and Mayors are each obliged to develop, implement and publish (in the Gazette) a Climate Change Response Implementation Plan.
Both the Climate Change Needs and Response Assessment and the Climate Change Response Implementation Plan must form a lawful component of the legislation of each province and of each municipality.
The Various Principles to be Considered
The Act sets out, again, quite broadly, the various principles that all such entities should consider in the formulation of their various plans. For instance, the plans should take into account the relevant and/or unique components of the areas under the jurisdiction of each of such entities.
Integrated Development Plan
In the case of a municipality, the Climate Change Response Implementation Plan must form a component of the relevant municipality’s Integrated Development Plan adopted in terms of the Municipal Systems Act 32 of 2000.
Environmental Implementation Plan
So far as provincial plans are concerned, they must form a component of the province’s Environmental Implementation Plan developed in terms of the National Environmental Management Act 107 of 1998 (“NEMA”).
Binding on all Organs of State
In Section 4(2) of the Act it is made quite clear that the Act binds all organs of state. Further, the Act must be read and applied in conjunction with NEMA and that where there is any conflict between the Act and NEMA (or any other Act), the new Act shall prevail.
A Huge Body of Work Awaits
From the above it is clear that a huge body of work awaits the administrators of South Africa insofar as the planning and regulation of action in respect of climate change.
The time delays which I have described are inevitable bearing in mind the various teams of scientists and other relevant professionals which shall have to be compiled, instructed and from which various reports shall no doubt emanate, which then, after due consideration, shall have to be summarised and incorporated in the various plans.
These delays, which in the case of provinces and municipalities are effectively a period of five years (presuming compliance with the Act), are regrettable bearing in mind the degree of urgency with which our current environmental challenges must be met.
The question perhaps arises as to whether South Africa even possesses sufficient skilled scientists and other relevant professionals to undertake the sheer volume of work which shall have to be completed within the time defined by the Act.
If one considers that each municipality within the Republic is obliged to undertake, inter alia, its own Climate Change Needs and Response Assessment, and thereafter a Climate Change Response Implementation Plan, that work alone, which indirectly shall collectively incorporate in essence the entire Republic, shall no doubt test the availability of relevant administration and professional skills.
Objectives and Conflicts
The objectives of the Act, in particular the first objective “[of] a co-ordinated and integrated response by the economy and society to climate change and its impacts in accordance with the principles of co-operative governance”, are commendable.
The devil, of course, shall be in the detail which is still to be set out in the various plans. The all-too-common conflict, on the one hand, between the commercial needs of South Africa and, on the other hand, pure conservation, shall challenge the minds, firstly, of those persons tasked with the production of provisional reports, and, secondly, those politicians (and their administrators) tasked by the Act to implement its provisions.