Introduction
This chapter asserts a risk-thematic approach for African climate litigation. It engages with the methodological and conceptual approaches that could be used to identify climate change cases decided in African courts, and to develop a reflexive and critical scholarship on climate litigation for the African context.
There have been many attempts to define climate litigation and delineate litigation typologies.1 However, from an African perspective, these attempts suffer from two glaring deficiencies. Firstly, they consistently position Africa on the margin of climate change litigation action, reflecting and reconstituting the continent’s peripheral framing. Secondly, the climate visibility approach2 used in mainstream ‘global’ climate litigation scholarship results in a case archive with a mitigation and Global North bias. This is not necessarily a bad thing for African climate litigation scholarship, as important mitigation litigation from the continent’s courts has already been identified
But the climate visibility approach does not serve a more important agenda for climate law scholars from or interested in Africa, which is to study and advocate for transformation of the power relations, institutions and processes most critical to responding to the urgent and severe risks and vulnerabilities arising from already-observed and projected climate change. This is more than a call to focus on adaptation litigation, but rather an invitation to refocus the lens on the tools states and private actors have at hand to address climate change, to understand how these tools are already being used and contested, and to contribute to their evolution. A focus on the specificities of climate-related risks brings these tools into clearer view than a focus on ‘climate change’ per se.
This chapter responds to the gap in the literature on an alternative approach to developing the archive of climate cases, in two ways. Firstly, it attempts to discern the key criterion for identifying climate change cases in mainstream climate litigation scholarship, and argues that this criterion is climate visibility. Climate visibility is the Rosetta Stone of climate litigation knowledge, because it drives the selection of cases on which all the scholarship is based. The chapter reflects on the rationale underlying climate visibility, as well as its utility and limitations in an African context. Secondly, the chapter carves out space for an alternative approach to case selection, termed a risk-thematic approach. To this end, it references recent Intergovernmental Panel on Climate Change (IPCC) reports to identify the key climate risks governments and people in Africa are contending with. It then takes a methodological turn, exploring keywords associated with such risks and the case ‘hits’ each keyword delivers when used to search the Southern African Freedom of Legal Information Institute, an important open-access southern African legal database.4 Finally, it analyses a sub-set of such cases – ‘drought litigation’ cases from South Africa – to illustrate the value of a risk-thematic approach. A discussion of these cases reveals how the South African courts are dealing with conflicts arising from drought relief and the imposition of water restrictions to deal with drought conditions, respectively. Using a risk-thematic approach, these cases constitute ‘climate litigation’ as
The use and limitations of a climate visibility approach to scoping climate litigation
The marginality of Global South cases in climate litigation and scholarship (and why they are still important)
Since the mid-2000s, climate litigation has emerged as a ‘global phenomenon’ with the potential to affect the outcome and ambition of climate governance.5 Disillusioned with the pace and reach of domestic and international regulatory efforts stemming from international climate negotiations, actors outside of national government started turning to the courts as a way to advance (or delay) effective climate action.6 As of May 2022, 2,002 ‘climate change litigation’ cases had been filed before national, regional or international courts with the vast majority (71 per cent or 1,426 cases) filed before courts in the United States.7 According to the climate change litigation database maintained by the Sabin Center for Climate Change Law and Policy, 88 climate change cases have been filed in Global South jurisdictions, of which only 13 (or 0.7 per cent) emanate from the African continent.8
A body of climate litigation literature has burgeoned alongside the growing archive of climate case law. From 2000 to 2019, 187 academic articles on climate change litigation were published in English law and social science journals.9 Analyses of climate litigation in the Global North dominate this literature,10 and the overwhelming focus is on mitigation-related litigation.11 There are far fewer studies on adaptation litigation, or cases seeking remedies for climate-related loss and damage.12 In their 2019 review of climate
Setzer and Benjamin concede that climate litigation in the Global South has to date received ‘scant attention’,14 but note that the limited body of Global South climate cases advances the climate litigation agenda in at least two respects: The use of climate change framing to overcome, or to use, procedural requirements for access to environmental justice;15 and the innovative ways in which climate change has been linked to human rights.16 Here, they rely on the path-breaking work of Peel and Lin, who analysed 34 cases from 12 developing country jurisdictions to determine the Global South’s contribution to ‘transnational’ climate litigation.17
Despite the low number of cases, Peel and Lin advance three reasons for paying attention to climate lawsuits in the Global South. The first is that Global South countries are the most vulnerable to climate change impacts, and many millions of people face the prospect of ‘very real and tangible’ climate change impacts on their homes, families, communities and livelihoods.18 The second is that courts in the Global North and the Global South are both contributing to the project of global climate governance through transnational climate jurisprudence, which is a project that positions the courts (and the social actors petitioning the courts) as key actors in ensuring ‘just outcomes for the most climate vulnerable’.19 And the third is that paying attention to Global South cases adjusts the lens through which climate litigation is viewed, allowing for further growth of
Curiously, Peel and Lin found that notwithstanding the great potential for adaptation-related climate litigation in the Global South, and even with employing an expanded ‘lens’ to net climate change cases (more on this in the section below), most Global South lawsuits focus on mitigation issues.21 This is curious. Is it that cases arising from the ‘very real and tangible impacts’ of climate change on homes, families, and so on are simply not finding their way to courts in the Global South? Or is there is a deeper conceptual or methodological issue at play that is rendering these cases invisible and, with that, the knowledge claims that can be made about climate litigation? Answering these questions requires taking a step back to examine the conceptual and methodological choices underlying mainstream knowledge production on climate litigation.
The main criteria underlying the mainstream climate litigation archive: visibility and centrality
In 2019, Setzer and Vanhala observed that there are ‘as many understandings of what counts as “climate change litigation” as there are authors writing on the phenomenon’.22 Scholars have differed on the substantive criteria that distinguish a climate change case, the inclusion of quasi-judicial decision-making processes, and whether to include cases challenging climate regulatory measures in addition to those having a pro-regulatory focus.23 Nevertheless, as the climate litigation field has evolved, two approaches to identifying the cases that fuel climate change scholarship have become dominant. The criteria that constitute these approaches are embedded in the task of defining climate litigation.
The first has been described as the narrow approach,24 and stems from the path-finding work of Markell and Ruhl, who defined climate change litigation in 2010 in the context of the United States as ‘any piece of federal, state, tribal, or local administrative or judicial litigation in which the party filings or tribunal decisions directly and expressly raise an issue of fact or law regarding the substance or policy of climate change causes and
Building on scholarship advocating for a broader definition,27 the second approach is described in Peel and Osofsky’s 2020 review of climate litigation, which broadens the framing to cases where climate change features more peripherally.28 With (1) climate change still at the core, their conception of climate litigation moves outward in a series of concentric circles to include cases where (2) climate change features as a peripheral issue, (3) litigation is motivated by climate change but is not raised as an issue, and (4) litigation has no express climate change framing but has implications for mitigation or adaptation.29
An expressly visible ‘climate change’ or ‘climate policy’ issue defines the first two categories, and one would be able to identify these cases by searching for the term ‘climate change’ in the judgment or papers. The third category is more tricky, and would require research on, for instance, media statements or the reports issued by litigating parties to determine whether climate change concerns feature as a motivation. The last category is the most nebulous of all, marking the point at which climate litigation starts fading into the more generic categories of litigation about environmental or natural resource management, raising the spectre that ‘if everything is climate litigation, then nothing is’.30 This blending should be avoided to guard the ‘autonomy’ of climate litigation, Kotze and Du Plessis argue ‘to continue riding the wave of interest, positive sentiments, and enthusiasm surrounding it’.31
To increase the number of Global South cases under analysis, Peel and Lin accordingly broaden the definition of climate litigation beyond the first category (narrow) approach, to include the second and third categories, where climate change features on the periphery of, or as a motivation for, arguments. The authors elucidate the methodological choice underlying their creation of the ‘Global South docket’, as the selection of cases that directly mention climate change in the pleadings, judgment, campaign materials or surrounding media.38 They opine that with no visible climate change reference it would be difficult to distinguish a case as climate relevant. As mentioned above, with the help of this broader lens, the authors filed 34 cases in the Global South docket.
The visibility of references to ‘climate’ or to ‘climate change’ nevertheless remains paramount, and cases with climate change at the centre continue to define the ‘conventional’39 understanding of climate litigation.
Reviews of climate litigation scholarship reinforce visibility as the key definitional criteria. In their update to Setzer and Vanhala’s review of climate
The value and limitations of the visibility approach criteria for scoping climate litigation
Narrowing the criteria for scoping climate change cases to visibility and centrality serves two very important functions. Firstly, the criterion disciplines judges and scholars to focus on the rather novel, recent idea that the climate can and should be governed, that is, that powers, duties and liabilities can be allocated to and vested in a wide range of actors for substances they release into (or taking into account developments in carbon capture and storage, remove from) the atmosphere. Such atmospheric governance has its roots in national and international efforts to address air pollution and control ozone-depleting substances, but has expanded massively in scope as a result of climate change science, and the understanding of how concentrations of heat-trapping gases in the atmosphere are affecting climate across the globe, over the short, medium and long term. Thus, the focus on ‘mitigation-litigation’, which essentially hones in on responsibilities attached to greenhouse gas abatement43 is necessary and important to understand the continuing evolution of atmospheric governance.
[T]end to be born from specific theoretical manifestos which seek to pursue climate litigation for a specific instrumental purpose: to force national governments to take more stringent action towards the reduction of their greenhouse gas emissions, and/or to force payments for climate change loss and damage based on historical responsibility.45
These cases cast judges, courts and litigious citizens of all stripes as the heroes, drawing attention to climate change issues and forcing greater ambition on the part of (villainous and laggardly) government regulators, administrators and corporations, sweeping change in one sexy, heroic litigious act.46 They constitute, as Gloppen and St Claire have quipped, ‘climate lawfare’, a strategy climate change activists have adopted to use rights and legal institutions to deliver or at least catalyse social transformation and human development.47 They are thus the cases that most overtly advance the cause of a transnational climate justice movement and the comforting idea that everyone can be an important player in multi-level climate governance.48 By studying and writing about these cases, climate litigation scholars help inform advocacy, partnering initiatives and capacity building49 and distill the ‘recipes for success’ that have been most effective.50 This rights-based, public interest litigation is nevertheless seen as a vital strategy to secure just outcomes for the most climate-vulnerable.51
But the narrow criteria of climate visibility and centrality also has limitations and costs.52 Leading the call to focus on smaller-scale, lower-profile and
One of the costs is the relative neglect of adaptation cases, which go ‘unnoticed’. Ohdedar supports broadening the scope of climate litigation ‘by incorporating smaller, more discrete cases that have not been argued on expressly climate grounds’56 to start understanding the multiple ways in which climate change adaptation may be present but invisible.57
Put another way, the case selection criteria underlying conventional climate litigation keeps out of focus the tools that global North and South governments have at their disposal to address climate risks, and how the courts are already shaping a risk response. Scholars are thus missing out on opportunities to study and describe the evolution of these tools and advocate for their development and transformation.
But what can fill the gap of climate visibility as a case selection criterion? What happens when one moves litigation about environmental or natural resource management or, even broader, litigation happening ‘in the context of climate change’ to the very centre? Do we risk diluting climate litigation to the point where it means nothing, as Kotze and Du Plessis caution? Does a shift away from a visibility approach mean putting climate ‘adaptation’ at the core and, if so, how would one recognize cases about climate adaptation? Peel and Lin maintain that climate adaptation cases are typically managed through planning and environmental law frameworks,58 but do we risk creating a new realm of invisibility when outside of these regulatory frames are excluded? Are planning and EIA (environmental impact assessment) legal
Climate risk as the basis for case selection
The remainder of this chapter is devoted to the idea that climate risk should be at the center of case selection. By foregrounding climate risk, a second overarching category of climate litigation and derivative scholarship will emerge, to complement conventional climate litigation and scholarship on mitigation (or what may be called ‘atmospheric governance’ litigation).
A risk-based framing has already come to the fore in recent scholarship. In their comparative review of three African cases, for example, Kotze and Du Plessis define climate litigation as ‘all litigious means offered by judicial and quasi-judicial fora to adjudicate juridical conflicts emanating directly from the risks and impacts of climate change’.59 They further highlight climate-change related risks in recent IPCC reports on Africa, which include (among others) compounded stress on water resources, extreme weather events, reduced crop productivity and increased food insecurity.60 Yet, they do not go on to examine how a risk-thematic focus should inform criteria for case selection, and the cases they select for a comparative analysis already fall within the Global South docket.
Ohdedar posits a novel analytical approach for adaptation litigation that also incorporates risk. Drawing on political ecology, he proposes a vulnerability framing that distinguishes between the biophysical risk of climate change (a hazards framing), and a social vulnerability framing that incorporates human security and relational approaches.61 Therefore, he opens up space to situate biophysical risk and, within that context, vulnerable groupings at the core of a climate litigation typology.
The remainder of this chapter aims to develop these nascent risk-based approaches into a more full-fledged risk-thematic approach to climate litigation in Africa.
Towards a risk-thematic approach
Putting climate risk at the centre of case selection requires taking into account the spatial and even temporal specificity of impacts. Climate change is being experienced differently in different parts of the world. Although droughts,
With a view to contextualizing a discussion on the possible keywords that could be used to identify climate risk relevant cases for Africa, this section relies on the IPCC reports to outline the key risks the continent faces. This section also outlines some of the limitations of relying only on these reports and scientific studies of probabilistic event attribution (PEA).
The state of climate change science in Africa
The first observation one should make about climate change science and Africa is that the continent is under-represented in the datasets and models that drive climate change observations, attributions and projections. In terms of trends in annual precipitation, for example, there is not enough observational data for most regions in Africa over the last century to draw definitive conclusions, and many regions have discrepancies between different observed precipitation datasets.64 The knowledge base is even more patchy for biophysical drivers and huge gaps remain.65 Africa is also under-represented
Despite these limitations, the IPCC has reported that in terms of observed impacts there is a high level of confidence that mean annual surface temperature is rising rapidly over the whole continent. Significant increases of 0.1ºC and 0.2ºC per decade have been observed in all regions, with higher increases over the eastern and south-western regions of Sub-Saharan Africa.67 These temperature increases can be attributed ‘to strong evidence of a continent-wide anthropogenic signal’.68 Statistically significant decreases in the amount of rainfall and the number of rainy days have been observed in the eastern, central and north-eastern parts of South Africa during spring and summer (1960–2010),69 as well as Central Africa and the Horn of Africa. Conversely, over mountainous regions such as the southern Drakensberg in South Africa, southern West Africa, and the Sahel increased or more intense rainfall has been observed.70
Looking forward, the World Climate Research Programme’s Coupled Model Inter-comparison Project Phases 5 and 6 (CMIP5 and CMIP6) projects continued warming across the continent.71 Under a business-as-usual emissions scenario,72 median projected regional warming for 2080–2100 compared to 1995–2014 will be in the order of 4ºC and in some regions 5ºC.73 The south-western region of the continent (covering
Notwithstanding the patchy science on the impacts of climate change on biophysical drivers, observed changes in soil moisture between 1978 and 2018 show a 10–20 per cent reduction in soil moisture over much of southern Africa, increases of up to 10 per cent over eastern Africa, and more of a drying than a wetting trend across central and west Africa.77 Much of Sub-Saharan Africa is already subject to moderate to high drought risk,78 and the likelihood of agricultural drought (driven by soil moisture) increases by 100–250 per cent under a 4ºC global warming in south-west Africa.79
Turning to completed PEA studies, Kam et al estimated that the 2015–2019 drought in South Africa’s Western Cape, for example, was at least double as likely as a result of anthropogenic greenhouse forcing.80 The same is true of the drought in Tanzania, Ethiopia and Somalia that occurred over more or less the same time period, which contributed to extreme food insecurity.81 Table 2.1 cites attribution studies pertinent to disruption of the hydrological cycle in Africa.
PEA studies on the disruption of the water cycle in Africa
| Sector | African attribution studies |
|---|---|
| Agricultural production | South Southern Africa: anthropogenic emissions increased the chances of October to December droughts over south southern Africa by 1.4–4.3 timesa |
| Hydropower | Ghana: between 1970 and 1990 rainfall variability accounted for 21% of inter-annual variations in hydropower generationb |
| Outbreaks of water-related and neglected tropical disease | • Senegal: rainy season associated with 84% increase in relative risk of childhood diarrheac • Mozambique: additional wet day per week associated with 2% increase in diarrheal diseased |
| Cities | South Africa: likelihood of prolonged rainfall deficit in Cape Town during 2015–2017 made more likely by factor of 3.3 (1.4–6.4)e |
Nangombe et al (n 106).
SA Boadi and K Owusu, ‘Impact of Climate Change and Variability on Hydropower in Ghana’ (2019) 38(1) African Geographical Review 19.
S Thiam et al, ‘Association between Childhood Diarrhoeal Incidence and Climatic Factors in Urban and Rural 41 Settings in the Health District of Mbour, Senegal’ (2017) 14(9) International Journal of Environmental Research and Public Health 42.
LM Horn et al, ‘Association between Precipitation and Diarrheal Disease in Mozambique’ (2018) 15(4) International Journal of Environmental Research and Public Health 22.
FEL Otto et al, ‘Anthropogenic Influence on the Drivers of the Western Cape Drought 2015–2017’ (2018) 13(12) Environmental Research Letters 124010.
These studies may not be raised in any particular litigation proceeding as a basis to pin liability on a greenhouse gas emitter, but they are important for grounding an understanding of the biophysical stressors African people are facing as a result of anthropogenic climate change.
Working Group II’s key risks82 for particular regions crystallize the impact of climate-related physical and biophysical drivers on social, cultural, economic and political pathways (impacts the Working Group has characterized as ‘multifaceted and severe’).83 The key risks build on detailed sectoral studies that link physical and biophysical drivers and vulnerabilities. Table 2.2 below sets out the relationship among impacts, drivers and vulnerabilities for the sectors used in Working Group II’s most recent assessment of water insecurity.
Sectoral impacts of an intensified hydrological cycle and associated vulnerabilitiesa
| Sector | Observed impact | Driver | Vulnerability | Confidence |
|---|---|---|---|---|
| Agricultural production | Negative | Droughtb | Food insecurity | High |
| Hydropower | Negative | Rainfall variability | Shortage of hydropower generation | Medium |
| Thermal power production | Negative | Drought, increased ambient water temperatures | Loss of coal-fired capacity | High |
| Mining, metal, agro-processing sectors | Risk | Lack of water availability | Operational impacts | Low |
| Outbreaks of water-related and neglected tropical disease (WaSH) | Negative | Increase in temperature, precipitation and extreme weather events | Increase in diarrheal disease, mortality and morbidity from infectious diseases | High |
| Disruption of water supply | Negative | Extreme weather eventsc | Morbidity, morality and mental health | Very high |
| Some cities | Negative | Exacerbation of existing flood and drought hazard | Management and supply of water to cities, economic loss | High |
| Freshwater ecosystems | Negative | Increasing temperatures, declining rainfall | Limited food supply for freshwater species, physiological stress and death, migration | High |
| Water-related conflict | Increase (exacerbation not causal) | Reduction of water availability exacerbates tensions (especially in groups dependent on agriculture) | Conflict, conflict-ridden societies unable to manage climate-related stressors | High |
| Bilateral migration | Increase | Slow- or rapid-onset climate-related events | Temporary or permanent migration | Medium |
| Cultural uses of water | Negative | Inundation, relocation, scarcity of water | Non-economic loss of culture and traditions,d mental health impacts | Medium |
Based on information presented in Pörtner (n 66), 4–41–4–54.
According to research conducted by Vogel et al, mean climate and climate extremes are responsible for 20–49 per cent yield anomalies variance. Between 18 per cent and 49 per cent of this variance is attributable to droughts and heatwaves. See E Vogel et al, ‘The Effects of Climate Extreme on Global Agricultural Yields’ 14(5) Environmental Research Letters, https://iopscience.iop.org/article/10.1088/1748-9326/ab154b/meta. Yield delinks of major crops such as maize, soy beans and rice are more marked in semi-arid regions, which include sub-Saharan Africa (see IPCC Sixth Assessment Report (n 63), 4–42).
Extreme weather events can exacerbate existing WaSH vulnerabilities, cause WaSH infrastructure failure or be associated with inadequate WaSH facilities in emergency treatment centres. The loss of electricity during extreme weather events may also detrimentally impact WaSH coverage.
Exacerbated by ongoing processes of colonialism and capitalism.
Crop and livestock production is affected by the overlapping and synergistic impacts of drought, heatwaves and diseases and pests. Impacts on agriculture and associated loss of food production from crops, livestock and fisheries looms large because 55–62 per cent of the Sub-Saharan Africa workforce is employed in agriculture, and 95 per cent of cropland is rainfed.86 There is high confidence that since 1961 climate change has already reduced total agricultural productivity growth by 34 per cent, which is more than any other region.87 Lost food production will make even more Africans food insecure, but subsistence farmers, the rural poor and pastoralists will feel the impact of variable precipitation and drought most keenly.88
Aggregate macroeconomic impacts of climate change in Africa have largely manifested through losses in agriculture.89 According to Diffenbaugh and Burke’s analysis, for example, GDP per capita would on average be 13.6 per cent higher for African countries in the absence of global warming since 1991.90 Warming in poorer, drier African countries has thus increased global inequality relative to the temperate Northern hemisphere.91
Precipitation changes (both increases and decreases) drive mortality and morbidity arising from infectious disease, a situation compounded by the existing inadequacy of water and sanitation infrastructure, and burgeoning population growth and urbanization. Increased malaria incidents and outbreaks have already been observed as a result of shifting rainfall patterns and extreme flooding.92 In drought conditions, species of virus-transmitting mosquitos thrive in open water storage facilities near human settlements, while flooding enables mosquitos to proliferate and spread diseases such as dengue, Zika and Rift Valley fever even further. Kraemer et al suggest that
Floods and coinciding drought and heat will have cascading and compounding effects on life, livelihoods and infrastructure in African human settlements. Africa is the most rapidly urbanizing region in the world and almost 60 per cent of the population of Sub-Saharan Africa lives in informal settlements.95 Decreased rainfall in rural areas drives increased migration to informal settlements, and such informal settlements heighten exposure to climate hazards such as floods and landslides.96 Flooding, however, is a more significant threat, as floods accounted for 80 per cent of the 337 million African people displaced by climate hazards from 2000 to 2019. Africa is the only region in the world where flood mortality has increased since the 1990s, and exposure to flood shocks has been associated with extreme poverty and up to 35 per cent reduction in consumption.97 Floods have also had a devastating impact on Sub-Saharan Africa’s already-fragile road transport, energy, and water and sanitation infrastructure, and yet it is not clear how major planned infrastructure investments such as the African Union’s Programme for Infrastructure Development or China’s Belt and Road Initiative will integrate planning for future climate change risks.98
Last, but by no means least, precipitation changes will contribute to reduction in or irreversible loss of ecosystem function and species extinction. Changes in African terrestrial and freshwater ecosystems has already been observed (for example, the overall continental trend is woody plant expansion into savannas and grasslands, with knock-on effects for the bird, reptile and mammal species dependent on those habitats as well as cattle production and
These key risks should be defining which cases are climate relevant for an African context: not climate change policies or laws as such, or cases launched against GHG regulators or emitters, but rather the ways in which particular risk themes arise in cases. These themes include, but are not confined to: agriculture (particularly as affected by drought), flood damage, the spread of waterborne diseases, hydropower shortages or disruptions, and the loss of savannas and grasslands. Instead of (or as well as) using ‘climate’ as a search term, for example, African scholars should be searching for cases with terms such as ‘drought’, ‘floods’, ‘agricultural relief’, or possibly ‘hydropower’ in the pleadings or judgment as a first-level screening tool. The facts of the case will then indicate the extent to which climate change impacts featured in the case.102
The following section presents the results of various climate risk keyword searches of an open-access legal database containing judgments from southern Africa.
Applying a risk-thematic approach to African case law
Identifying climate change cases based on the thematic messiness of key risks is more complicated than a clean-cut search for cases that mention ‘climate change’ or ‘greenhouse gas emissions’. To test the utility of a risk-thematic approach, a variety of keywords were tested to find case law, literature and (to a lesser extent) legislation in the Southern African Freedom of Legal Information Institute (SAFLII) database of legal materials, which contains legal materials from across southern Africa.103
Number of hits on the SAFLII database using varying keywords for identifying climate change cases and literature
| Keyword | No. of hits |
|---|---|
| Climate change | 87 |
| Greenhouse gas | 26 |
| Greenhouse gas AND oil OR gas OR coal | 18 |
| Water security | 25 |
| Drought | 217 |
| Agriculture AND climate change | 42 |
| Agriculture AND heat stress | 2 |
| Agricultural relief | 0 |
| Agricultural loss | 2 |
| Veldfire | 25 |
| Flooding | 150 |
| Sanitation AND floods or droughts | 78 |
| Ecosystem services | 22 |
| Ecosystem loss | 0 |
The keyword of ‘climate change’, which aligns with the visibility criterion for identifying climate relevant cases, yielded 87 hits on this database, but of those only 21 were distinct judgments, all from South Africa. The remaining hits are literature hits, with a number of double entries. Five of those literature hits deal with water security.104 The narrower search terms of ‘greenhouse gas’ or ‘greenhouse gas AND oil OR gas OR coal’ yield 26 and 18 hits respectively (of which six and four hits are actual cases).
Using the alternative key word of ‘water security’ results in nine case hits, of which six do not overlap with so-called climate change cases.
The keywords of ‘agriculture’ and ‘climate change’ show less promise as screening criteria, as the cases they net overlap to a large extent with cases identified using the keyword of ‘climate change’ and most of the hits refer to non-climate relevant literature. An interesting couple of cases, however, examine the relationship between animal welfare and heat stress.107 The keyword of ‘agricultural relief’ had no hits, and ‘agricultural loss’ yielded only two hits. However, 25 hits related to ‘veldfire’ and most are case law. The relationship between drought conditions, heat and fire is well-established and these cases may therefore also be valuable for discerning how law is being used deal with the impacts of veldfire, and how affected parties are adapting to the impacts of climate change.
Similarly to ‘drought’ the keyword of ‘flooding’ brought a larger number of cases to the fore – 150 in total – of which 124 (82 per cent) are cases. These cases would need to be examined to determine whether the factual matrix can be linked to an extreme flooding event that could be attributed to climate change. Like the ‘drought’ dataset, the flooding cases include cases from Botswana.
The keywords of ‘sanitation’ AND ‘drought OR floods’ responds to the intersectional risks of extreme weather events and the lack of water, sanitation and hygiene (WaSH) facilities in southern Africa. These keywords generated 78 hits of which 47 (60 per cent) are cases, with the overwhelming majority decided after 2015. This could be an indication of attempts to use the law
Finally, the keywords of ‘ecosystem services’ and ‘ecosystem loss’ were less generative, yielding only 22 and zero hits respectively. Of the ecosystem services hits, 12 include the keyword of ‘climate change’, but only five of these hits were case law.
To illustrate the value of a risk-thematic approach to climate case selection, the following section considers three ‘drought litigation’ cases from South Africa.
Drought litigation in South Africa
Contextualizing drought in South Africa
South Africa is naturally drought-prone and extreme droughts are often triggered by the El-Nino Southern Oscillation (ENSO).108 Between 2015 and 2017 South Africa experienced the combined effects of a severe drought and an ENSO event that affected the whole country, but was particularly severe in the south-western parts of the country, which scientists estimated to be a 1-in-100, to 1-in-300 year event.109 As noted in the discussion of Africa’s key climate risks above, the south-western region of the continent is projected to experience the largest increases in temperature, which will result in a reduction in mean rainfall.
South Africa’s first NDC (updated in 2021)110 states that since 1990 the national average temperature has increased at more than twice the rate of global temperature increases. This has already resulted in more frequent droughts and extreme weather events.111 Since 1980, the country has recorded 86 weather-related disasters, which affected more than 22 million South Africans and cost the economy in excess of R133 billion (US$ 6.81 billion).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.
Ohdedar discusses drought and vulnerability in the courts in an Indian context, highlighting the governance tools of drought declaration (a highly-politicized tool)120 and state support for agricultural debt,121 in his analysis. The discussion of South African drought litigation in the following section adds knowledge about the range of governance tools available to address drought conditions, highlights the kinds of conflicts that have emerged in the state’s use of such tools and describes how the courts have responded to drought-related social vulnerability.
Drought litigation in South Africa: three illustrative cases
As noted above, searching the SAFLII database using the keyword ‘drought’ netted 156 case hits from courts in South Africa. In the majority of these cases, ‘drought’ is a passing reference (at times also misspelled as ‘draught’), but in a number of cases drought plays a central role as the driver of public or private action. From the sub-set of drought cases, three cases were selected to illustrate two governance tools, how the state used them, and the courts response.
Contesting water shedding in Ekurhuleni Metropolitan Municipality
In Astral Operations, a company active in the broiler industry (growing and slaughtering broiler chickens for human consumption), approached the Johannesburg High Court for an interdict preventing the Ekurhuleni Metropolitan Municipality (EMM) from implementing its water-shedding programme in relation to Astral, pending a consultative process with the company or, in the alternative, granting the company 12 weeks’ grace to implement a contingency plan to deal with water cuts (no water) lasting from 21:00 in the evening to 5:00 the following morning on Tuesdays, Thursdays and Saturdays. EMM’s hand in imposing these restrictions had been forced by the bulk water supplier, Rand Water, after earlier attempts to reduce water consumption in the municipality in response to the severe drought had not met the anticipated targets. Astral maintained that the cuts caused it substantial financial loss, as it interrupted water supply to its abattoir and processing facility.
If the Council considers it necessary as a matter of urgency to prevent any wastage of water, unauthorised use of water, damage to property, danger to life or pollution of water, and national disaster or if sufficient water is not available for any other reason the Council may, without prior notice and without prejudice to the Council’s power under section 9(2)(b) . . . suspend the supply of water to any premises.126
The court dismissed Astral’s application and confirmed EMM’s imposition of the water-shedding programme, notwithstanding the lack of prior consultation. Finding that the law imposed no obligation on the municipality to consult before imposing such water restrictions, the court pointed out that other consumers would be prejudiced if Astral were to be exempted from the water-shedding programme. Specifically, the court noted that ‘the consequences of providing uninterrupted water to Astral will be borne by the occupants of Ekurhuleni who, in the light of the drought being experienced in South Africa, face the risk of severe water shortages or more stringent restrictions’.127 The court found that Astral had not established a clear right in this instance – the first requirement for the granting of an interdict – as it has not made averments relating to ‘a right to a continued uninterrupted supply of water’ in its pleadings.128
The Astral case thus stands as an important decision affirming a municipality’s power to restrict water under drought conditions, in a manner that upheld the concerns of other water consumers and prevented a special exemption for a single corporate actor. It showed the court’s awareness of the need to look beyond the parties appearing before it, and the importance of fairness in the
Reviewing the state’s handing of drought relief measures in the Northern Cape
In Mweza and Windvöel the applicants sought a review of state action under the Promotion of Administrative Justice Act 3 of 2000. In Mweza the applicants asked the court to direct the state respondents to decide on their applications for drought relief and the validity of so-called ‘settlements agreements’ (signed while the litigation was ongoing, purportedly in full and final settlement of the applicants’ claims); and in Windvöel the court was asked to direct the state respondents to decide drought relief grants, in circumstances where officials denied that a community meeting relating to the relief had even taken place. In both cases the applicants belonged to a group that might be termed the ‘rural poor’: Functionally illiterate persons dependent on social grants engaged in modest or subsistence vegetable and maize farming businesses. In both cases, the value of the drought relief grant was a paltry R900. This relatively tiny amount, however, would have made the difference between crisis and survival for the applicants.
In 2004, the President of South African had proclaimed the Northern Cape as a disaster area in accordance with, curiously, section 26 of the Fund-Raising Act 107 of 1978. Section 16 of this Act also established the Disaster Relief Fund Board, cited as a respondent in both cases. The applicants sought assistance, however, in terms of section 5(2) of the Social Assistance Act 59 of 1992, which vested a discretion in the Director-General ‘make a financial award to a person if he or she is satisfied that such person is in need of social relief of distress’.
The climate relevance of disaster relief is obvious. If climate change is exacerbating drought conditions, vulnerable groups need access to various forms of social assistance. This brings the doctrinal and statutory bases for granting such relief squarely into focus. Intriguingly, drought relief is not addressed in the country’s NCCAS or, if it is, the idea is hidden beneath technical jargon such as the delivery of ‘targeted climate change vulnerability reduction programmes’.129
The court granted the relief sought by the applicants in both cases, directing the Member of the Executive Council (MEC) responsible for social development in the Northern Cape, the Disaster Relief Fund Board, and the Minister of Social Development to consider and decide the applicants’
In Mweza and Windvöel, one can see, therefore, how the courts came to the relief of the rural poor in a situation where state officials were unwilling, recalcitrant or incapable of coming to their aid with drought relief. The cases also potentially highlight a key policy gap in South Africa’s adaptation response, namely the expeditious administration of drought relief, to address the human welfare of a vulnerable group. The need to fill this gap will become only more pressing as drought risk as a result of anthropogenic climate change.
Conclusion
This chapter has a conceptual and methodological orientation and engages with the question of the criteria that should be used to identify a case as climate litigation, or as climate relevant. It assumes that Africans need a climate litigation definition that will not only transcend the continent’s marginal framing, but also will enable African actors to cognize, target and transform the governance institutions most critical to responding to the multi-faceted and severe social, cultural, economic and political vulnerabilities arising from already-observed and projected climate change on the continent.
The chapter engages with recent climate scholarship to argue that the keystone criterion for identifying a climate change case is climate visibility. While this criterion is important and valuable for identifying cases that show the evolution of the atmospheric governance strand of climate litigation, it obscures cases that exhibit the tools governments are already using (or not using) to alleviate the impacts of climate change. The chapter accordingly proposes an alternative approach where climate risk features as the central criterion for developing a parallel body of case law centered on adaptation (but not restricted to a state’s official adaptation response).
By using a risk-thematic approach to identifying climate case, scholars in and interested in Africa will be in a better position to frame, categorize, analyse and compare. This work will enable diverse African climate change actors to discern patterns, predict future trends, and orientate their own actions within a broader stream of multi-level, multi-jurisdictional, poly-vocal and intersecting climate action.
D Markell and JB Ruhl, ‘An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?’ (2012) 64 Florida Law Review 15; F Sindico and MM Mbengue (eds), Comparative Climate Change Litigation: Beyond the Usual Suspects (Palgrave 2021); NS Ghaleigh, ‘“Six Honest Serving Men” – Climate Change Litigation as Legal Mobilization and the Utility of Typologies’ (2010) 1 Climate Law 31; J Lin, ‘Climate Change and the Courts’ (2012) 32 Legal Studies 35; J Peel and HM Osofsky ‘Climate Change Litigation’ (2020) 16 Annual Review of Social Sciences 21.
For an explanation of the ‘climate visibility approach’, see the discussion below.
See, for example, K Bouwer and T-L Field, ‘Editorial: The Emergence of Climate Litigation in Africa’ 15 Carbon & Climate Law Review 123 and sources cited therein.
J Setzer and C Higham, Global Trends in Climate Litigation: 2022 Snapshot (Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science 2022), 1, 9.
Peel and Osofsky (n 1), 21, 22.
Setzer and Higham (n 5), 9.
Setzer and Higham (n 5), 10. Cases filed in Kenya, Nigeria, South Africa, Uganda and the East Africa Court of Justice have been included in the database of Global Climate Change Litigation. Nine of the cases, however, emanate from South Africa.
Peel and Osofsky (n 1), 24–5; J Setzer and LC Vanhala, ‘Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance’ (2019) 10(3) Wiley Interdisciplinary Review of Climate Change 580.
Peel and Osofsky (n 1), 28.
Peel and Osofsky (n 1), 27. Mitigation-related cases include those challenging emissions reductions measures or policies, or challenges to coal-fired power stations.
Peel and Osofsky (n 1).
Peel and Osofsky (n 1), 28. The authors make specific mention of litigation developments in China.
J Setzer and L Benjamin, ‘Climate litigation in the Global South: Constraints and Innovations’ (2020) 9(1) Transnational Environmental Law 77.
See further Bouwer and Field (n 3); SAK Mwesigwa and PD Mutesasira, ‘Climate Litigation as a Tool for Enforcing Rights of Nature and Environmental Rights by NGOs: Security for Costs and Costs Limitations in Uganda’ (2021) 15(2) Carbon & Climate Law Review 139; LA Omuko-Jung, ‘The Evolving Locus Standi and Causation Requirements in Kenya: A Precautionary Turn for Climate Change Litigation?’ (2021) 15(2) Carbon & Climate Law Review 171.
Setzer and Benjamin (n 14). The chapters on a human rights approach to climate litigation in Africa in this volume support this claim.
J Peel and J Lin, ‘Transnational Climate Litigation: The Contribution of the Global South’ (2019) 113(4) American Journal of International Law 679. The analysed cases are set out in supplementary material to the article. Since their article was published, the number of Global South cases (understood as cases decided in jurisdiction from state parties who were not listed in annex I to the United Nations Framework Convention on Climate Change), has increased to 136 cases from 22 jurisdictions.
Peel and Lin (n 17), 681–2.
Peel and Lin (n 17), 682.
Peel and Lin (n 17), 683.
Peel and Lin (n 17), 685.
Setzer and Vanhala (n 9), 4.
Peel and Osofsky (n 1), 23.
Setzer and Higham (n 5), 6. In their latest update on global climate litigation, Setzer and Higham state that they adopt a ‘narrow’ approach to defining climate litigation.
D Markell and JB Ruhl, ‘An Empirical Survey of Climate Change Litigation in the United States’ (2010) 40 Environmental Law Reporter 10644.
Markell and Ruhl (n 25), 10647.
See, for example, C Hilson, Climate Change Litigation: A Social Movement Perspective (2010), at 2, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1680362.
Peel and Osofsky (n 1), 24.
For the application of this typology in a South African context, see T-L Field, ‘Climate Change Litigation in South Africa: Firmly Out of the Starting Blocks’ in I Alogna et al (eds), Climate Change Litigation: Global Perspectives (Brill 2021).
LJ Kotze and A du Plessis, ‘Putting Africa on the Stand’ (2020) 50(3) Environmental Law 615, 622.
Kotze and du Plessis (n 30).
Peel and Lin (n 17), 689–90.
K Bouwer, ‘The Unsexy Future of Climate Change Litigation’ (2018) 30 Journal of Environmental Law 483.
Peel and Lin (n 17), 691.
Peel and Lin (n 17), 692.
Peel and Lin (n 17), 694.
Peel and Lin (n 17).
Peel and Lin (n 17), 695.
Peel and Lin (n 17), 690.
Peel and Osofsky (n 1), 24.
Peel and Osofsky (n 1).
Peel and Osofsky (n 1).
J Peel and J Lin, ‘Climate Change Adaptation Litigation: A View from Southeast Asia’ in J Lin and D Kysar (eds), Climate Change Litigation in the Asia Pacific (Cambridge University Press 2019), 296–7; Bouwer (n 33), 484.
This ‘frustration’ motivation encompasses Ghaleigh’s typology of climate litigation (boundary-testing, defensive, promotive and perfecting cases claims), which supposedly encompass the ‘entirety of climate change case law’. See Ghaleigh (n 1), 32.
Bouwer (n 33), 489–90, and n 4, where the ‘holy grail’ framing is attributed to Richard Lord QC.
Peel and Osofsky (n 1), 28; Kotze and Du Plessis (n 30), 622; Bouwer (n 33), 489.
S Gloppen and AL St Claire, ‘Climate Change Lawfare’ (2012) 79 Social Research 89, quoted in Kotze and Du Plessis (n 30), 623.
Peel and Lin (n 17), 681.
Peel and Lin (n 17), 683.
J Peel and R Markey-Towler, ‘Recipes for Success? Lessons for Strategic Climate Litigation from the Sharma, Neubauer and Shell Cases’ (2021) 22 German Law Journal 1484.
Peel and Lin (n 17), 682.
These limitations and costs have been acknowledged by authors using the conventional definition. See, for example, Peel and Lin (n 17), 690; J Setzer and L Benjamin, ‘Climate Change Litigation in the Global South: Filling in Gaps’ (2020) 114 AJIL Unbound 56, 60.
Bouwer (n 33), 483.
Bouwer (n 33), 496–9. The elements of climate action other than mitigation are finance, technology transfer, capacity building, transparency and loss and damage.
Bouwer (n 33), 493.
B Ohdedar, ‘Climate Adaptation, Vulnerability and Rights-Based Litigation: Broadening the Scope of Climate Litigation Using Political Ecology’ (2022) Journal of Human Rights and the Environment 137, 138.
Bouwer (n 33), 502–4.
Bouwer (n 33), 294. Admittedly, in their recent review, Peel and Osofsky identify a third category, namely cases seeking remedies for loss and damage (see Peel and Osofsky (n 1) 27). This category of cases may rise in prominence in climate litigation scholarship following the ‘breakthrough’ agreement on a new ‘Loss and Damage Fund’ for vulnerable countries taken at COP 27 (see UN Climate Press Release “COP27 reaches breakthrough agreement on new ‘Loss and Damage’ fund for vulnerable countries” (20 November 2022), available at https://unfccc.int/news/cop27-reaches-breakthrough-agreement-on-new-loss-and-damage-fund-for-vulnerable-countries.
Kotze and Du Plessis (n 30), 622.
Kotze and Du Plessis (n 30), 628.
Ohdedar (n 56), 145. Ohdedar’s approach suggests numerous other avenues of investigation which, for reasons of space, are not further explored in this chapter.
See, for instance, JM Gutiérrez et al, ‘Atlas’ in V Masson-Delmonte et al (eds), Climate Change 2021: The Physical Science Basis. Contribution to Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2021) 1927, 1968.
IPCC Sixth Assessment Report, ‘Climate Change 2022: Impacts, adaptation and vulnerability’, https://www.ipcc.ch/report/ar6/wg2/.
Gutiérrez (n 62), 1968.
See, for example, the coverage of studies on the impact of climate change on streamflow, where there is almost no coverage for much of Africa (MA Caretta and A Mukherji (eds), ‘Water’ in H Pörtner et al, Climate Change 2022: Impacts, Adaptation and Vulnerability. Working Group II Contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC 2022), 4–26).
See American Meteorological Society, ‘Explaining extreme events from a climate perspective’, https://www.ametsoc.org/ams/index.cfm/publications/bulletin-of-the-american-meteorological-society-bams/explaining-extreme-events-from-a-climate-perspective/.
Gutiérrez (n 62), 1968.
Gutiérrez (n 62), 1969.
Gutiérrez (n 62), 1968.
Gutiérrez (n 62).
Gutiérrez (n 62), 1971.
Referenced in the climate change literature as RCP8.5. For a critique of RCP8.5 as a modelling scenario see Carbon Brief ‘Explainer: The high-emissions “RCP8.5” global warming scenario’, 2019, https://www.carbonbrief.org/explainer-the-high-emissions-rcp8-5-global-warming-scenario/, accessed 16 July 2022.
Gutiérrez (n 62), 1969. Under the Shared Socio-Economic Pathways (SSP) scenario 1–2.6 these median projected temperature increases are 1ºC and 2ºC respectively.
Gutiérrez (n 62), 1971.
Gutiérrez (n 62), 1971.
Caretta and Mukherji (n 65), 4–41.
Caretta and Mukherji (n 65),4–21–22. Changes to the balance of precipitation and evapotranspiration drive changes in soil moisture.
Caretta and Mukherji (n 65), 4–33.
Caretta and Mukherji (n 65), 4–72.
J Kam et al, ‘CMIP6 Model-Based Assessment of Anthropogenic Influence on the Long-Sustained Western Cape Drought over 2015–2019’ Explaining Extremes of 2019 from a Climate Perspective (2021) 102(1)Bulletin of the American Meteorological Society S45–S50. The vast majority of studies in this series, however, are concentrated on developing world regions and/or Asia.
IPCC Sixth Assessment Report (n 63), 4–35.
Defined as ‘potentially severe’ risk. See CH Trisos, IO Adelekan and E Totin, ‘chapter 9’ in IPCC Sixth Assessment Report Pörtner (n 63), 9–18.
IPCC Sixth Assessment Report (n 63), 4–41.
Which would in turn also impact irrigation as an adaptive response to drought.
Trisos, Adelekan, Totin (n 82), 9–22.
L Abrams et al (2018), Unlocking the Potential of Enhanced Rainfed Agriculture, Report No. 39, SIWI, Stockholm, https://siwi.org/wp-content/uploads/2018/12/Unlocking-the-potential-of-rainfed-agriculture-2018-FINAL.pdf.
A Ortiz-Bobea et al, ‘Anthropogenic Climate Change Has Slowed Global Agricultural Productivity Growth’ (2021) 11(4) Nature Climate Change 306.
Trisos, Adelekan, Totin (n 82), 9–21.
S Barrios, L Bertinelli and E Strobl, ‘Trends in Rainfall and Economic Growth in Africa: A Neglected Cause of the African Growth Tragedy’ (2010) 92(2) The Review of Economics and Statistics 350.
NS Diffenbaugh and M Burke, ‘Global Warming Has Increased Global Economic Inequality’ (2019) 116(20) Proceedings of the National Academy of Sciences 9808–13.
Diffenbaugh and Burke (n 90), 9808.
AM Adeola et al, ‘Predicting Malaria Cases Using Remotely Sensed Environmental Variables in Nkomazi, South Africa’ (2019) 14(1) Geospatial Health.
MUG Kraemer et al, ‘Past and Future Spread of the Arbovirus Vectors Aedes Aegypti and Aedes Albopictus’ (2019) 4(5) Nature Microbiology 854.
SM Moore et al, ‘El Nino and the Shifting Geography of Cholera in Africa’ (2017) 114(17) Proceedings of the National Academy of Sciences 4436–41.
UN-Habitat, World Cities Report 2016. Urbanization and Development: Emerging Futures (UN-Habitat 2016).
D Satterthwaite et al, ‘Building Resilience to Climate Change in Informal Settlements’ (2020) 2(2) One Earth 143.
C Azzarri and S Signorelli, ‘Climate and Poverty in Africa South of the Sahara’ (2020) 125 World Development 104691.
Trisos, Adelekan and Totin (n 82), 9–98.
CR Axelsson and NP Hanan, ‘Rates of Woody Encroachment in African Savannas Reflect Water Constraints and Fire Disturbance’ (2018) 45(6) Journal of Biogeography 1209–18.
Trisos, Adelekan and Totin (n 82), 9–65.
R Chaplin-Kramer et al, ‘Global Modeling of Nature’s Contributions to People’ (2019) 366 Science 255.
Attribution studies may assist in this analysis but should not be regarded as essential.
SAFLII purports to incorporate case law from the national courts of Botswana, Lesotho, Malawi, Mozambique, Namibia, the Seychelles, South Africa, Tanzania, Uganda, Zimbabwe and Zambia as well as the East Africa Courts of Justice and Appeal. However, the content is heavily biased in favour of South Africa.
T Honkonen, ‘Water Security and Climate Change: The Need for Adaptive Governance’ (2017) 20 Potchefstroom Electronic Law Journal 52; B Qumbu, ‘The Role of the Courts in Advancing Water Security in South Africa’ 24 (2021) Potchefstroom Electronic Law Journal 18; C Soyapi and T Honkonen, ‘Special Edition: Water Security’ (2017) 20 Potchefstroom Electronic Law Journal 6; T Kuokkanen, ‘Water Security and International Law’ (2017) 20 Potchefstroom Electronic Law Journal 57; CB Soyapi, ‘Water Security and the Right to Water in Southern Africa: An Overview’ (2017) 20 Potchefstroom Electronic Law Journal 72; A Rieu-Clarke and C Spray, ‘Ecosystem Services and International Water Law: Towards a More Effective Determination and Implementation of Equity’ (2013) 16 Potchefstroom Electronic Law Journal 19.
The keyword ‘flooding’ was preferred to ‘flood’ or ‘floods’ given courts’ penchant for referring to themselves being flooded by case law.
S Nangombe, T Zhou, L Zhang and W Zhang, ‘Attribution of the 2018 October–December Drought Over South Southern Africa (2020) 101(1) Bulletin of the American Meteorological Society S135–S140.
National Council for the Prevention of Cruelty to Animals v Al Mawashi (Pty) Ltd [2020] ZAECGHC 118 (15 October 2020), Al Mawashi (Pty) Ltd v National Council of Societies for the Prevention of Cruelty to Animals [2020] ZAECGHG 74 (30 June 2020). In these cases the National Council sought an interdict from the court banning the practice of transporting sheep from anywhere in South Africa to anywhere north of the Equator by anyone on any vessel during any time of the year. In their argument, the National Council placed great reliance on the heat stress which sheep purportedly suffer during these journeys, which they maintain causes extreme cruelty to the sheep.
M-A Baudoin et al, ‘Living With Drought in South Africa: Lessons Learnt from the Recent El Nino Drought Period’ (2017) 23 International Journal of Disaster Risk Reduction 128.
P Wolski et al, ‘Spatio-Temporal Patterns of Rainfall Trends and the 2015–2017 Drought over the Winter Rainfall Region of South Africa’ (2020) International Journal of Climatology E1303.
Republic of South Africa, South Africa – First Nationally Determined Contribution under the Paris Agreement, 2021, https://unfccc.int/sites/default/files/NDC/2022-06/South%20Africa%20updated%20first%20NDC%20September%202021.pdf.
Republic of South Africa (n 110), 3.
Republic of South Africa (n 110), 6–7.
Republic of South Africa (n 110), 6.
Republic of South Africa, National Climate Change Adaptation Strategy (2020), 18 (NCCAS).
NCCAS (n 114), 20.
NCCAS (n 114), 33.
NCCAS (n 114), 38.
NCCAS (n 114), 53.
Ohdedar (n 56), 137.
Ohdedar (n 56), 11.
Ohdedar (n 56), 19.
Case No. 39702/2016 [2016] ZAGPJHC 380, 18 November 2016, http://www.saflii. org/cgi-bin/disp.pl?file=za/cases/ZAGPJHC/2016/380.html&query=astral%20 Operations.
Case No. 376/06 [2008] ZANCHC 74, 12 December 2008, http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZANCHC/2008/74.html&query=mweza.
Case No. 1014/09 [2011] ZANCHC 31, 21 October 2011, http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZANCHC/2011/31.html&query=mweza.
There is clearly scope for considerable work to be done in the analysis of this body of case law and it is hoped that this will spark broader study in this area. By drawing attention to these kinds of cases, it is anticipated that they will begin to be decided in a manner that is not climate blind (Bouwer (n 33), 504). The author will be continuing this work over the coming years under the auspices of the Claude Leon Chair.
Section 11(2)(a) Water Supply By-Law, Ekurhuleni Metropolitan Municipality. Section 12 of the by-law further provided for Special Water Restrictions.
Astral Operations (n 122), para. 16.
Astral Operations (n 122), para. 17.
NCCAS (n 114), 27.
Mweza (n 123), para. 13.
Windvöel (n 124), para. 20.
