South Africa, like the rest of world, cannot and does not deny the negative effects of climate change. The Climate Change Bill, published on June 18 this year, is meant to be an effective and progressive response to it.
The Intergovernmental Panel on Climate Change was established in 1988, which led to the tabling of the United Nations Framework Convention on Climate Change in 1992. The convention’s objective was to achieve the stabilisation of greenhouse gases at a level that would prevent dangerous anthropogenic interference with the climate system.
South Africa ratified the convention in August 1997.
This treaty did not contain provisions for targets or specific ways for dealing with climate change, but instead gave principles and commitments to guide future engagements.
The Kyoto Protocol, which sets internationally binding emission reduction targets, was adopted in December 1997 and acceded to by South Africa in July 2002. The protocol recognises that developed countries are principally responsible for greenhouse gas emissions as a consequence of decades of industrial activity. Accordingly, it places a heavier burden on developed nations.
The Paris Agreement, which addresses nationally determined contributions and for states to undertake national assessments, to set emission targets and to commit themselves to not exceeding those emissions, was adopted in December 2015 and ratified by South Africa in November 2016.
This agreement gives developing countries the flexibility to develop and be in control of setting their own targets.
South Africa’s Climate Change Bill recognises that any policy must be integrated with economic development, which will be done in an environmentally and socially conscious manner.
The Bill is divided into four broad categories:
- Policy alignment for climate change mitigation by government institutions;
- Responses by provinces and municipalities;
- Strategic national adaptation strategy; and
- The plan for governance of greenhouse emissions.
The Bill obliges the minister to set out a greenhouse gas emissions trajectory for South Africa and to provide a national emissions reduction target. This is binding on organs of state and private persons as representatives of legal entities. So all emitters, whether a company that, or a person who, owns an emitting plant, have to comply, although they must be allocated a carbon budget.
The Bill also provides for sectoral emissions targets for greenhouse gases.
The minister is obliged to publish a greenhouse gas emissions threshold with an allocated carbon budget, and an entity or person who has been allocated a carbon budget must prepare and submit a mitigation plan to the minister for approval. Once this plan is approved, the entity or person must comply with the budget and implement the mitigation plan properly. Each entity or person has to report annually to ensure compliance.
It will be an offence not to submit a greenhouse mitigation plan where required or to fail to implement an approved mitigation plan. It is also an offence for greenhouse gas emissions to exceed the allowance. The penalty, which may be negligible in the case of corporates, ranges from R5-million to R10-million, depending on the offence.
The Bill includes the sanction of imprisonment.
But, practically, many emitters will be legal entities in the industrial sector, which cannot go to jail, and the Bill fails to provide for director liability.
Furthermore, there appears to be no legal consequences for organs of state that fail to comply.
South Africa is responding to its international commitments to combat climate change. But the present Bill will need to be strengthened, with binding provisions, clear monitoring and compliance strategies, as well as stricter penalties for breaches.
Athi Jara is a director at LNP Attorneys and Mihlali Sitefane is a senior associate at the firm