After six years of waiting: The Climate Change Act 22 of 2024

The Preamble of the Act contextualises the urgency of climate change-related threats and the responsibilities of the government to safeguard the environment. It further emphasises that a nationally driven, coordinated, and cooperative legal and administrative response is needed for South Africa to achieve its climate goals.

The Act consists of six chapters which address the following:

1. The main objectives of the Act and how it should be interpreted and applied.
2. How to align existing policies and institutional arrangements with the Act.
3. Setting out the municipal and provincial climate change responses.
4. The formulation of national adaptation strategies.
5. Measures to reduce and eliminate certain greenhouse gas emissions.
6. Other general matters and transitional arrangements.

Objective, interpretation and application

The main objective of this Act is to provide an integrated economic and social response to climate change. This encapsulates managing the impacts of climate change effectively, providing for a just transition towards low carbon, fulfilling international responsibilities, making a fair global contribution to stabilise GHG concentrations, and protecting the planet for present and future generations.

As with the National Environmental Management Act of 1998, the Legislature opted to provide principles that must guide decision-making to impact climate change efforts. As a result, the Act determines that the principles in NEMA must be used with those listed in the Act. There are eleven more principles listed in the Act. Many of these principles are not foreign to environmental lawyers and some overlap a bit with the NEMA principles:

1. Intergenerational justice;
2. International equity;
3. Just transition;
4. Integrated management;
5. Circumstance-based decision making;
6. Cautionary principle;
7. Evidence-based decision making;
8. Polluter pays principle;
9. Public awareness and participation;
10. Climate strategies based on prevention and strengthening resilience; and,
11. Environmental sustainability as a prerequisite and foundation for economic and social sustainability.

Section 4 of the Act confirms that it binds all organs of state and applies to the whole territory of the Republic, including the Prince Edward Islands. The Climate Change Act is a specific environmental management Act (SEMA) that must be read and interpreted alongside NEMA. If any legislation conflicts with this Act on a climate change issue, the Climate Change Act prevails.

Harmonising policies and law

Every organ of state is required to reevaluate and amend its policies, laws, programs, and decisions so that they consider the risks of climate change impacts and give effect to the principles and objectives of this act. For example, municipalities, departments and any institution that contributes to service delivery, disaster management, and environmental management will have to review and harmonise their laws and policies.

Institutional arrangements

Existing provincial and district intergovernmental forums will now also serve as climate change forums and may enlist the aid of a technical support structure. They should coordinate climate change responses, and report to the President’s Coordinating Council. The Presidential Climate Commission (PCC) is now formalised and will be listed as a public entity under the Public Finance Management Act of 1999, giving the full legal capacity of an independent and impartial juristic person. The Commission will comprise 25 members from government, organised labour, civil society, traditional leaders, the South African Local Government Association (SALGA), and the business community. The PCC is an advisor that will inform South Africa’s response to climate change. The Commission must guide the government on its climate change mitigation and adaptation efforts, and steer socio-economic matters that relate to the just transition. The PCC is required to report its findings, studies, and advice in written reports that will be accessible to the public on its website.

Provincial and municipal responses

MECs and mayors must conduct a climate needs and response assessment within one year after the publication of the National Adaptation Strategy and Plan. The Assessment is a tool to help provinces and municipalities understand their climate change needs by creating a spatial map of climate risks to the environment and communities. Based on the assessment, municipalities and provinces must develop a climate response implementation plan that will constitute a component of a province’s environmental implementation plan and the Integrated Development Plan (IDP), in the case of municipalities. Assessments and implementation plans must be reviewed and amended once every five years. The Act mandates the Minister (i.e. the Minister responsible for the administration of the Act) to prescribe a mechanism to support and finance climate change responses in all spheres of government.

National adaptation strategies

The Minister must publish national adaptation objectives, the indicators for measuring their progress, and the deadlines for reaching these objectives in the Government Gazette within one year (before 22 July 2025) after this act comes into operation. The objectives should be accompanied by adaptation scenarios. The scenarios are forecasted events that anticipate the likely climate change-induced events in South Africa and the associated vulnerabilities. The scenarios should be divided into short, medium, and longer-term depending on their likelihood of occurrence. A National Adaptation Strategy and Plan must be developed and published within two years of the act coming into operation. This plan must include the objectives, the scenarios, the assessment of risks and vulnerabilities, the available adaptation response options, and a plan for implementing them. The Plan must be reviewed and amended every five years.

Some functions such as water, agriculture, and education are listed in Schedule 2 of the Act. A Sectoral Adaptation Strategy and Plan is required for each of these functions. The responsible Minister should, within two years of the publication of the National Adaptation Strategy and Plan, develop a sector plan that identifies and spatially maps risks and vulnerabilities with measures to manage and implement adaptation responses. This plan must also be reviewed and amended every five years.

The Act establishes an information bank that contains data relating to climate change. To enable the collection of data, the Minister has the power to request from any person documents or other sources of information which may be relevant for the fulfilment of the objectives of this Act. Additionally, the Minister must use data relating to the achievement of the national adaptation objectives to write and publish a Synthesis Adaptation Report to be considered by the Cabinet. This report must form the basis of other national and international reporting processes. Furthermore, the Act establishes a national GHG Inventory which contains information about emissions trends, comparing actual emissions against trajectories and international climate change mitigation commitments and obligations.

Reducing and eliminating GHGs

The Minister must determine a national GHG emissions trajectory that specifies the national GHG emissions reduction objectives. The trajectory must be reviewed every five years. Furthermore, the Minister must publish a list of GHG emissions sectors and sub-sectors that will be subjected to sectoral emissions targets, within one year of this act coming into operation. Each sectoral emissions target must be implemented by the responsible Ministers, aligned with the GHG emissions trajectory, and include quantitative and qualitative GHG emissions reduction goals for 0 – 5 years, 6 – 10 years, and 11 to 15 years. Sectoral emissions targets must also be revised and amended every five years. The Act requires responsible ministers to report to the Presidency on their progress towards the achievement of the relevant sectoral emissions targets every year. The Minister must then collate and use all the sectoral reports to report on the progress of the implementation of all targets to the Cabinet every year.

The Minister must publish a list of GHGs that is reasonably believed to cause or likely to cause or exacerbate climate change. This list must be accompanied by another list that sets out a list of activities that emit or can potentially emit these GHGs and prescribes a corresponding threshold for each type of gas. The Minister must allocate a carbon budget to any person that partakes in a listed activity. A carbon budget is valid for at least three successive five-year periods and must specify the maximum amount of allowed GHG emissions. These persons must submit GHG mitigation plans to the Minister that describe mitigation measures. For now, existing pollution prevention plans will be considered GHG mitigation plans for the first mandatory carbon budget cycle. Carbon budgets must be reviewed every five years by the Minister.

Certain GHGs must be declared synthetic GHGs. These should be divided into phase-down or phase-out gasses with prescribed thresholds and times. Emitting sectors, sub-sectors or affected parties must develop a plan to phase the relevant gasses down or out. These plans are to provide information on how these emissions will be accounted for and what containing measures will be implemented.

Public participation

The Minister, MEC, or mayor must give notice to the public when exercising certain functions. The notice must be published in the Gazette, one national newspaper, and one local newspaper. It must invite written representations within 30 days of publication and contain sufficient information to enable people to make meaningful representations. The Minister, MEC, or mayor has the discretion to allow oral representations from affected or interested parties. The Minister MEC or mayor must give due consideration to all representations.

The Act concludes with some usual provisions on making regulations, authorising delegation, access to information, and offences and penalties. 

Commentary

A lot can be said about this Act and some opinion pieces have already been published. In addition to these opinions, one can observe some critical points for public governance:

The Legislature should be commended for using existing institutional arrangements (such as intergovernmental forums) to coordinate and spearhead the implementation of the Act. This is the first parliamentary Act to give intergovernmental forums a more substantial coordination function and might hint at a future trend on how the South African government will increase intergovernmental coordination. This promotes efficiency because no additional resources need to be made available for the implementation of a large part of this Act.

On the other hand, the District Development Model (DDM) Regulations proposes new institutional arrangements with the specific aim of improving coordination and efficiency in governmental project planning. DDM creates a Presidential Steering Committee, provincial DDM intergovernmental forum, and Premier coordinating forums with a network of technical committees and champions. Here we can observe two very different approaches to ensure coordination in government institutions and policy development. The DDM will undoubtedly also come into play with the implementation of this Act. But is DDM necessary, will the approach set out in this Act not suffice for other sectoral planning and coordination?

Climate action planning now forms part of the larger integrated development processes and corresponding performance management practices in municipalities, because climate response implementation plans have to be part of a municipality's IDP. This further means that the public must be consulted on the content of the climate response implementation plan as part of the process to review, develop and adopt IDPs. Additionally, IDPs will now have to reflect KPIs and outcomes that reflect the content of the climate response implementation plan which enables performance monitoring.

Similar to other sectors, reports on climate action must periodically be compiled and presented at various levels of government, yet no mandate is given to public officials to duly consider the content of such reports and take appropriate action. Moreover, no enforcement or accountability tools, intergovernmental or otherwise, are included in the Act. It is no secret that the South African government struggles to implement its own laws and the Climate Change Act will probably be no different, therefore it is unfortunate that no specific enforcement mechanisms were included in the final version.

The adoption of the Act marks the end of a six-year-long journey. Now begins a new journey – implementation.

By Johandri Wright, Post-Doctoral Research Fellow