VIEWPOINT | The Climate Change Act: Does it go far enough?

President Cyril Ramaphosa signed the Climate Change Act 22 of 2024 into law in July 2024. However, it remains to be put into operation via a separate proclamation. As a legal and institutional framework for implementing South Africa’s national climate change response, the Act’s success will depend on effective regulations, adequate political will and public engagement. Climate Advocacy Lawyer Brandon Abdinor explains.  

What makes the Climate Change Act a necessary piece of legislation and in what way does it take precedence over other environmental laws? 

In the face of the intensifying climate crisis, the Act defines the key climate responses of adaptation and mitigation. It prescribes specific and appropriate measures for implementing these. It also establishes the necessary institutional arrangements to apportion responsibilities across the state institutions. The Act takes precedence over any other climate change-related legislation. Arguably one of the most far-reaching prescriptions is that all organs of state affected by climate change must align and harmonise their policies, measures, laws, programmes and decisions with the objectives and principles of the Act. 

What are the key provisions of the Act and how will it impact companies? 

Firstly, the Act addresses adaptation and climate resilience. The minister responsible for the environment is to publish climate adaptation scenarios which anticipate expected climate change impacts according to the best available science. Then, a national adaptation strategy and plan is to be published after a public consultation process, followed by sector adaptation strategies and plans. Provinces and municipalities are also required to develop and implement climate change response implementation plans. Companies and the way they do business are highly likely to be impacted by the adaptation plans which will address infrastructure choices and management, disaster risk management and response, and many other facets of the economy. They are encouraged to engage in the public participation processes prescribed by the Act to help ensure that inappropriate or deficient adaptation plans are not adopted. On climate change mitigation, carbon budgets are to be assigned to entities and activities that emit greenhouse gases (GHGs) beyond a certain threshold. Sectoral emissions targets will also be allocated to different sectors to limit emissions from those sectors. 

Will the Act bring South Africa in line with the Paris Agreement and, if so, how? 

To a significant degree, yes. The Act incorporates South Africa’s nationally determined contributions – the GHG emissions reduction targets prescribed by the Paris Agreement – into domestic law.  

The Act is a welcome measure to help reduce GHG emissions and achieve net zero by 2050 – but strict penalties for emitters are lacking. How will this affect outcomes?  

The intention is that any exceedance of the budget is subject to a higher, or punitive, carbon tax rate. South Africa’s carbon taxes are far below the actual cost of unchecked emissions and emitters may effectively choose to pay these taxes or pass them on to customers instead of actually curbing emissions. This unfortunate loophole results from the failure to make exceeding a carbon budget an offence. 

Without sectoral emission targets and carbon budgets, how should companies proceed and what should they do to decarbonise their businesses?  

Large emitters will have to take steps to remain economically viable and safeguard their reputations in an increasingly watchful market. This pressure will increase over time as carbon penalties are levied by export markets and litigation risk increases. All businesses, including those which are not themselves large emitters, need to gain a very solid understanding of their carbon footprint as well as that of their value chains, and then ensure they become familiar with and adopt best practices when it comes to reducing that footprint. There is a large and growing trend of innovation in this regard and the potential to elect low-carbon choices around energy, facilities management, manufacturing and distribution practices is ever-increasing. It is also necessary to deeply understand climate risks such as water scarcity, severe weather, rising sea levels, climate migration and so on to adapt proactively. 

Who is expected to monitor targets and budgets, and what will happen if companies fall short of their legal obligations?  

Technically the Minister of Forestry, Fisheries and the Environment is assigned to monitor targets and budgets, but this is relatively weakly formulated and leaves much in the hands of emitters to report on their progress with emissions reduction. It is hoped that the carbon budget regulations being formulated will strengthen the monitoring functions. Failure to submit a greenhouse mitigation plan is an offence, but failing to adhere to such a plan is not. 

Does the Act go far enough to address the climate crisis? How might existing gaps be filled? 

Because the Act rightly balances the needs of climate response with sustainable development and a just transition that does not penalise vulnerable workers, business ecosystems and communities, space is left open to justify high carbon development in the interests of the greater economic good. While this can be rational and sensible in certain instances – such as allowing the steelmaking sector additional time to develop low-carbon technologies – it is often abused to justify business as usual at the expense of the climate and at-risk communities and individuals. Strong regulations that deter excess emissions and compel adherence to the mandatory mitigation plan from emitters would help to ensure meaningful emissions reduction.