On 24 October 2023, South Africa’s National Assembly passed the Climate Change Bill, the first piece of legislation in the country specifically aimed at mitigating and addressing the effects of climate change.
Forestry, Fisheries and the Environment Minister Barbara Creecy, while addressing the National Assembly, emphasised the importance of this historic moment, saying, “Today, we ensure our country has a legal instrument to build resilience against the impacts of climate change and to reduce emissions in a manner aligned with our national circumstances and development pathways.”
The development of a climate change law is a pivotal moment in any nation’s response to the effects of climate change. It not only refines and solidifies a national consensus on the necessary actions, but it also empowers the government to enforce more ambitious measures. In the case of the South African Climate Bill, this applies to both private sector emitters and individual government departments.
Given the complex and interconnected nature of climate change, the Bill ambitiously seeks to unify the nation’s response through a comprehensive framework law. It achieves this through several mechanisms, including the formal recognition and regulation of the Presidential Climate Commission (PCC) and the mainstreaming of climate change governance, assessments, and responses at the provincial and local levels. This approach ensures that climate change is no longer viewed merely as a national “environmental” matter.
By anchoring South Africa’s climate change response in law, the government not only demonstrates its commitment to a purposeful and coordinated response but also gains the authority to implement more ambitious measures outlined in the nationally determined contribution (NDC). The NDC is a legally binding commitment that each country makes to the United Nations Framework Convention on Climate Change (UNFCCC). It outlines the country’s greenhouse gas emissions reduction targets for a specific period of time.
For example, South Africa is one of the few countries worldwide to have legislated for the imposition of sector-wide emission targets, in addition to private sector carbon budgets. These provisions enable the Minister of Forestry, Fisheries, and the Environment to set emissions targets for various sectors, such as energy and transport, as well as prescribe emission thresholds at a company level. Not only will this assist the country in achieving the overall emissions reduction trajectory in its NDC, but it will hopefully bring much needed alignment between departmental objectives and policies. In turn, this may pave the way for more policy and legislative certainty on the long-term emissions reduction trajectory of the various sectors, notably the energy sector, and provide a legislative framing and impetus for the implementation of the Just Energy Transition Partnership (JETP).
Moreover, the Bill stands out globally with its detailed chapters on adaptation objectives and related planning instruments. In addition to provincial and local adaptation responses, the Minister is required to develop national adaptation objectives and indicators for their measurement within one year of the Bill’s enactment. The Minister is also tasked with developing “adaptation scenarios” and a national adaptation strategy. These provisions offer direction and enhance inter-departmental coordination in the nation’s adaptation response. Like the Paris Agreement’s global goal on adaptation, the national adaptation objectives may also attract the eye of investors, particularly impact investors, looking to prioritise adaptation projects and link them to national and global targets. In due course it could also help shape and inform investment strategies for adaptation within the country.
While the Bill is unique and ambitious in many aspects, its successful implementation hinges on the government’s ability to establish the necessary mechanisms and ensure their robustness. A critical aspect includes determining meaningful penalties for companies that exceed their carbon budgets, with a potential higher carbon tax rate as a penalty. However, the specific amendments to the Carbon Tax Act for this purpose have yet to be disclosed. Additionally, the Minister must promptly define the Bill’s proposed mechanism to support and finance its implementation, including support for provinces and municipalities. Adequate financial support is crucial for the Bill’s effectiveness, and the fine tuning of this mechanism will play a vital role in implementation.