Cliffhanger: Buildings, roads and cars were destroyed as floods damage infrastructure across the eThekwini region in KwaZulu-Natal during April’s downpour in 2022 Photo: Darren Stewart/Gallo Images
South African law could be used to institute a claim against entities such as carbon majors for compensation for loss and damage caused by the deadly April 2022 flooding in KwaZulu-Natal.
This is the finding of a new report from the Centre for Environmental Rights (CER), which explores the liability and accountability of emitters, particularly major greenhouse-gas emitting entities, in the context of climate change loss and damage.
The unprecedented rainfall and subsequent flooding in April 2022 caused the deaths of more than 400 people while economic losses were estimated at R17 billion.
Much of the damage that occurred in the floods has been attributed to climate change, compounded by ongoing emissions from carbon majors. These are the private and state-owned entities responsible for 63% of carbon dioxide and methane emissions over the past 150 years — 83 of them are fossil-fuel producing entities and seven are cement manufacturers.
“We are seeing how the state is having to foot much of the bill for loss and damage from the Durban floods and other similar events,” said Michelle Sithole, an attorney at the CER. “Many vulnerable people and communities have had their lives devastated, with no avenue for compensation.”
The CER report, Sithole said, is “intended to join the dots” between harmful emissions and effects on the ground. “It is promising that our legal system is potentially able to facilitate claims for climate loss and damage.”
Substantive issues of law
There are 60 ongoing or completed cases against carbon majors worldwide, according to the report. Most of these have been brought in the US, where cities and states are seeking compensation for climate-linked damage to public infrastructure. There have not yet been any loss and damage claims brought by African claimants against carbon majors, either in African or foreign courts.
“In bringing a claim against a foreign carbon major, which did most of its polluting beyond South Africa’s borders, a South African court will have to determine whether the substantive issues of law must be decided in terms of South African law or the relevant foreign law,” the report said.
“When dealing with a foreign defendant, our courts have stated that the appropriate starting point is to apply the law of the place where the wrongful act was committed. Therefore, the general rule is that the law applicable where the wrongful act took place will apply, unless there are circumstances that justify a departure from this general rule.”
There is not yet clarity on when a departure would be justified. “However, relevant considerations that have been considered by the courts include: which country has the ‘most significant relationship’ to the wrongful act; the presence of a shared jurisdictional connection between the parties and whether there are grounds of public policy that warrant applying South African law in preference to the relevant foreign law.”
Leading academics suggest that, in cases of uncertainty, the place where the wrongful act was committed ought to be determined by the “place of damage”, where the harm and loss giving rise to the claim were suffered. “Therefore, a strong argument can be made that victims of the 2022 KwaZulu-Natal floods ought to be allowed to rely on South African law to determine the issue of any claims against foreign carbon majors.”
Given the scale of climate-linked disasters, and the size of the potential classes of victims, the class-action mechanism has its advantages, which include making justice accessible to a large group of individuals with limited means, whose claims might not be big enough to justify approaching a court on an individual basis, the report said.
Success in bringing a claim for loss and damage will by no means be easy, it said.
“It will require extensive research on the carbon major that damages are sought from, its activities and its links to South Africa …
“An extensive evidence-gathering process will be required on the extent and globally distributed nature of a carbon major’s polluting activities, along with expert attribution evidence to draw the necessary links between the carbon major’s emission and climate change related harms. Having said that, there can be no doubt that there is significant potential for a viable loss and damage claim in delict against a foreign carbon major.”
Most vulnerable
“As is so often the case, at-risk communities living in informal settlements experience the impacts most acutely,” said Catherine Sutherland of the School of Built Environment and Development Studies at the University of KwaZulu-Natal in her report prepared for the CER on the effects of the flood. “Many of these settlements are close to rivers, below flood lines or situated on steep hillsides with little or no infrastructure to protect them from the elements.”
A total of 443 people lost their lives, while 48 went missing or are unaccounted for. More than 26 000 dwellings and 84 health facilities were damaged, as well as 600 schools, affecting the education of hundreds of thousands of learners.
Durban and surrounds suffered immense economic losses, Sutherland’s report said. It has been estimated that the cost to repair infrastructure such as roads; transport; water treatment and supply; communication and electrical systems exceeds R10 billion.
Various sectors in the formal economy also suffered major losses. These include manufacturing (R431 million); agriculture (R12.6 million); construction (R18 million); wholesale and retail (R46 million) and warehousing and logistics (R33 million).
In total, the KwaZulu-Natal government estimated economic losses in the province amounting, overall, to about R17 billion.
“These amounts do not obviously reflect the economic losses to hundreds of thousands poor and economically at risk people and informal enterprises whose lives were upended in a myriad of ways. Nor do they include the more difficult-to-quantify costs and effects of trauma, disrupted schooling and destruction of social structures.”
Durban has a range of strategies and programmes in place to build resilience and sustainability and to support climate adaptation. These are longer-term processes that need time, capacity and resources to have the desired benefits.
“The development challenges in Durban mean that the implementation of these strategies and programmes is complex, challenging and requires ongoing effort and commitment. Climate adaptation requires both short-term interventions and longer-term systemic and transformative changes in the urban system, both of which are evident in the programmes developed in Durban to address social, economic and environmental challenges,” Sutherland wrote.
The challenge with climate change, she wrote, is that the frequency and intensity of climate change events, in this case flooding caused predominantly by cut-off low-pressure systems in Durban, “undermines these development efforts and resilience building options”.
‘Undermining development trajectory’
The April 2022 floods, on the back of floods in 2019, Covid-19 and the social unrest in 2021, have “dramatically” affected the development trajectory of Durban and its social, economic, environmental and political future by increasing vulnerability, affecting the provision of basic services and degrading the environment, which is a critical resource to the city.
“The report documented the cause and timeline of the flood, highlighting the relationship between the hazard, which was extreme (359mm of rain falling in 24 hours) and the vulnerability of the city and its people. The hazard event (a cut-off low-pressure system), multiplied by high levels of vulnerability, led to widespread flooding and localised landslides, resulting in the loss of human life, property and infrastructure.”
The most devastating effect has been the way they have undermined the development trajectory and resilience of the city, as well as the destruction from which the city and its citizens are yet to recover.
“The wastewater treatment works are still not functioning in the city, all those who lost land and homes in this study, have not recovered their homes as yet, they have not re-established their economic position and livelihoods, and citizens remain fearful and stressed, with some communities fractured, which has broken the social cohesion upon which they rely for their security.”
But there is a strong commitment to the principle of ubuntu, it said. “There is compassion and understanding, and there is courage and hope, all of which have enabled people to move forward.”