The Judge-Made ‘Duty’ to Consider Climate Change in South Africa

Abstract

Environmental legislation in South Africa does not explicitly require that the executive branch consider climate change in environmental decision-making. Yet, in a handful of climate cases, the executive has been found to have acted unlawfully (and thus unconstitutionally) by failing to do so. We argue that the case law has implicitly introduced a ‘duty’ to consider climate change mitigation and adaptation issues. The precedent set entails that in order to act lawfully as required by the Constitution of the Republic of South Africa, 1996, decision-makers must take climate change into account in various contexts. This article describes the role of the judiciary within South Africa’s transformative constitutional regime, and the interpretive approach they are mandated to adopt. The interpretive approach is a feature of South Africa’s normative conceptualization of the separation of powers. We then describe how, in the exercise of this role, the ‘duty’ to consider climate change has emerged and evolved through three instances of climate litigation in the High Courts, and one before the Water Tribunal. We conclude that the power of judiciary in South Africa to respond to the myriad human rights and justice implications of the climate crisis derives not only from constitutionally entrenched human rights. Equally important are the mechanisms within the broader transformative architecture of the constitutional order. By making this modest point, we hope to deepen the understanding of the utility of human rights in climate litigation in the Global South.