Abstract
South Africa is a significant emitter of greenhouse gases. Despite a long history of policy development, there is insufficient legislation addressing climate change (the chapter briefly canvassing what legislation there is) – and numerous policy imperatives which might undermine the effectiveness of recent policy innovations. Policy documents – especially the recent White Paper on the National Climate Change Response (2011) – are considered in some detail. Also considered is the recent White Paper on South Africa’s Foreign Policy (2011), which provides important insight into South Africa’s intentions in respect of international commitments and both national and regional growth. As a counterweight to the environmental aspirations of the White Paper, South Africa’s energy policy is then considered and it is concluded that while South Africa continues on the path it is presently treading it is going to be all but impossible to reconcile the goals of strong economic growth and poverty alleviation with environmental protection generally, and South Africa’s international commitments in the climate change issue-area specifically.
Michael Kidd is Professor of Law at the University of KwaZulu-Natal, Pietermaritzburg, South Africa. He holds a B Com, LLB, LLM and PhD all from the University of Natal; Ed Couzens holds the degrees of PhD from the University of KwaZulu-Natal; LLM Environmental Law from the Universities of Natal and Nottingham; and BA Hons LLB from the University of the Witwatersrand. He is currently an Associate Professor in the School of Law, University of KwaZulu-Natal, Durban. He is an admitted attorney of the High Court, RSA. He has been since 2006 a co-editor of the University of Eastern Finland/United Nationa Environment Programme Review of International Environmental Law-making and Diplomacy; and has been since 2001 an assistant editor on the South African Journal of Environmental Law and Policy.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
United Nations Statistics Division, “Environmental Indicators”, available at http://unstats.un.org/unsd/environment/air_co2_emissions.htm (last accessed 2 March 2012). There are different data available from different sources (see, for example, sources cited in Kidd, supra note 2). The data differ according to the year of the statistics’ derivation and the differences are not dramatic.
- 2.
The 17th Conference of the Parties to the United Nations Convention on Climate Change and the 7th Meeting of the Parties to the Kyoto Protocol. See, generally, “Meetings”, available at: http://unfccc.int/meetings/items/6240.php and, specifically, “COP17/CMP7”, available at: http://www.cop17-cmp7durban.com/ (both last accessed on 1 March 2012).
- 3.
Department of Environmental Affairs, White Paper on the National Climate Change Response (2011), at §6.2, Gen N 757 in GG 34695 of 19 October 2011.
- 4.
Department of Environmental Affairs and Tourism, Greenhouse Gas Inventory South Africa: 1990–2000 (2009), available at: http://www.pmg.org.za/files/docs/090812greenhouseinventory.pdf (last accessed 1 March 2012).
- 5.
cf. Ibid. at 17, where the higher figure of 47.6% is given.
- 6.
White Paper, supra, note 4.
- 7.
Ibid.
- 8.
Ibid at §6.1.
- 9.
Section 8(1) of the Constitution of the Republic of South Africa, 1996.
- 10.
Section 24.
- 11.
Act 107 of 1998. See Ch.1, s 2 for the principles. The s 2 principles are justiciable (see s 32(1)).
- 12.
Section 2(2).
- 13.
Act 39 of 2004. Hereafter referred to as the Air Quality Act.
- 14.
There is an oblique reference in the Preamble: “whereas atmospheric emissions of ozone-depleting substances, greenhouse gases and other substances have deleterious effects on the environment both locally and globally”.
- 15.
Section 1.
- 16.
Section 7(1).
- 17.
Section 7(1)(c).
- 18.
Established under s 7(1).
- 19.
Section 7(2).
- 20.
Section 7(2)(h). In addition, s 8 provides that the national framework must establish national standards for collecting and managing data necessary to assess compliance with South Africa’s obligations in terms of international agreements (s 8(c)(v)); and s 16 requires that air quality management plans, which must (per s 15) be included by national or provincial departments in environmental implementation plans or environmental management plans (per s 15(1)) or by municipalities in integrated development plans (s 15(2)), must “seek” (s 16(1)(a)) to “implement [South Africa’s] obligations in respect of international agreements” (s 16(1)(a)(vii)). Similar obligations apply in respect of “controlled emitters” (per s 23(2)(c)); and “controlled fuels” (s 26(2)(c)).
- 21.
The Minister is empowered, although not compelled, to make regulations “that are not in conflict with this Act” regarding “any matter necessary to give effect to the Republic’s obligations in terms of an international agreement relating to air quality” (s 53(a)).
- 22.
Section 43(1)(l).
- 23.
Section 21(1).
- 24.
This subsection reads:
The Minister or MEC may, by notice in the Gazette—
-
(a)
declare any substance contributing to air pollution as a priority air pollutant; and
-
(b)
require persons falling within a category specified in the notice to prepare, submit to the Minister or MEC for approval, and implement pollution prevention plans in respect of a substance declared as a priority air pollutant in terms of paragraph (a).
Note that the “MEC” is the Member of the Executive Council for environmental affairs, essentially the provincial equivalent of a national Minister.
-
(a)
- 25.
Section 29.
- 26.
White Paper, supra note 4, at §10.6.
- 27.
Section 39(e).
- 28.
Section 43(1)(l).
- 29.
Section 50, which is headed “Transboundary air pollution”.
- 30.
Section 50(1).
- 31.
Section 50(2).
- 32.
Act 4 of 2006.
- 33.
Electricity Regulations on New Generation Capacity: GN R721 GG 32378 of 5 August 2009.
- 34.
Section 2.
- 35.
See National Treasury, “Press Release Regarding CO2 Vehicle Emissions Tax”, 26 August 2010, available at: http://www.treasury.gov.za/comm_media/press/2010/2010082601.pdf (last accessed 7 February 2011).
- 36.
White Paper, supra, note 4, at §10.7. See also National Treasury, Reducing Greenhouse Gas Emissions: The Carbon Tax Option, December 2010, Discussion Paper for Public Comment.
- 37.
In South Africa, a White Paper is not itself legislation (although it is a step toward possible legislation) and provides no binding obligations. However, a White Paper has value in that it provides an important guide for organs of state formulating and implementing policy; and for organs of state and the judiciary in interpreting legislation.
- 38.
Some of the discussion of the White Paper is based on Michael Kidd, “Environmental Law”, Juta’s Quarterly Review of South African Law (October to December 2011).
- 39.
Department of Environmental Affairs and Tourism, A National Climate Change Response Strategy for South Africa (September 2004).
- 40.
Energy Research Centre, Long Term Mitigation Scenarios: Technical Summary (October 2007).
- 41.
Ibid at 2.
- 42.
White Paper, supra, note 4, at §6.4.
- 43.
National Treasury, supra, note 36.
- 44.
GenN 1083 in GG 33801 of 11 November 2010. For discussion of the Green Paper, see Kidd, supra, note 1, at 318–323.
- 45.
White Paper, supra, note 4, at §2.
- 46.
The White Paper speaks of “national policies, legislation or strategies”. For ease of reference, this discussion will refer simply to “legislation”, but this may incorporate strategies and policies as well.
- 47.
White Paper, supra, note 4, at §4.2.
- 48.
Ibid at §5.5.6.
- 49.
Ibid at §6.1.3.
- 50.
See, for instance, Parliamentary Monitoring Group, “White Paper on Climate Change: Public Hearings”, 1 November 2011, available at: http://www.pmg.org.za/report/20111102-public-hearings-national-climate-change-white-paper-2011-south-africa (last accessed 1 March 012); and Sue Blaine, “White Paper Sets Industry Carbon ‘Budgets’”, Business Day, 14 October 2011, available at: http://www.businessday.co.za/articles/Content.aspx?id=156085 (last accessed 1 March 2012).
- 51.
See supra, note 13.
- 52.
White Paper, supra, note 4, at §6.1.6.
- 53.
Ibid at §6.3.
- 54.
See, generally, http://www.treasury.gov.za
- 55.
See, generally, http://www.dti.gov.za
- 56.
See, generally, http://www.economic.gov.za
- 57.
See, infra, note 2; and discussion in Kidd, supra, note 1, at 317–318.
- 58.
Equivalent: 16.06 US$ at 1 March 2012.
- 59.
This symbol meaning “equivalent amounts of carbon dioxide”, so as to include other greenhouse gases.
- 60.
Wendy Gardner, “Climate Change Taxes”, Moneywebtax, 22 February 2012, available at: http://www.moneywebtax.co.za/moneywebtax/view/moneywebtax/en/page34677?oid=65818&sn=Detail&pid=34677 (last accessed 27 February 2012).
- 61.
White Paper, supra, note 4, at §6.7.
- 62.
Ibid at §8.
- 63.
See the list of those measures already implemented in ibid, at §10.7.
- 64.
See GN R211 in GG 34586 of 9 September 2011.
- 65.
White Paper, supra, note 4, at §8.6.
- 66.
Ibid, at §10.1.
- 67.
Ibid, at §10.2.1.
- 68.
National Environmental Management Act 107 of 1998.
- 69.
Act 39 of 2004.
- 70.
White Paper, supra, note 4, at §10.7.2.
- 71.
The Southern African Development Community; see, generally, http://www.sadc.int
- 72.
White Paper, supra, note 4, at §11.1.2.a.
- 73.
Meaning the programme agreed to at COP 17/CMP 7 of the UNFCCC/Kyoto Protocol process in Durban in December 2011, in terms of which the parties extended the Ad Hoc Working Groups on Long-term Cooperative Action; launched “a process to develop a protocol, another legal instrument or an agreed outcome with legal force”; set a deadline of 2015 for adopting this instrument, and of 2020 for its coming into force; and made certain other commitments. Available at:
http://unfccc.int/files/meetings/durban_nov_2011/decisions/application/pdf/cop17_durbanplatform.pdf (last accessed 1 March 2012).
- 74.
White Paper, supra, note 4, at §11.2.6.
- 75.
Ibid, at §12.
- 76.
Ibid, at §12.3.
- 77.
On this, vide South Africa’s drive firstly to host COP17/CMP7 of the UNFCCC/Kyoto Protocol Process in 2011; and then to see a successful outcome from the Conference.
- 78.
“Building a Better World: The Diplomacy of Ubuntu”, White Paper on South Africa’s Foreign Policy, 13 May 2011, available at: http://www.info.gov.za/view/DownloadFileAction?id=149749 (last accessed 1 March 2012).
- 79.
Ibid. at 4.
- 80.
Ibid. at 4–5.
- 81.
Ibid. at 8, 13–14, 18–19, 26–28, 29, 31–32.
- 82.
Ibid. at 14.
- 83.
Ibid. at 4–5, 8, 13, 19–23.
- 84.
Ibid. at 15.
- 85.
Department of Minerals and Energy, White Paper on the Energy Policy of the Republic of South Africa (December 1998) at 92.
- 86.
Department of Minerals and Energy, Integrated Energy Plan for the Republic of South Africa (March 2003) at 20.
- 87.
Ibid, at 25.
- 88.
Ibid. By way of comparison, according to International Energy Agency data, in 2008 Denmark produced 58,426 GWh from renewable sources and Mexico 47,303 GWh, available at: http://www.iea.org/stats/renewdata.asp?COUNTRY_CODE=DK and http://www.iea.org/stats/renewdata.asp?COUNTRY_CODE=MX respectively (last accessed 27 February 2012).
- 89.
Department of Minerals and Energy, supra, note 87, at 6. PJ denotes Peta Joules, which is 1015 J.
- 90.
Ibid at 7.
- 91.
Department of Minerals and Energy, White Paper on the Renewable Energy Policy of the Republic of South Africa (November 2003), at 1.
- 92.
Ibid.
- 93.
Ibid, at 25. Eskom (“Electricity Supply Commission”, translated from the Afrikaans) is South Africa’s parastatal electricity supply company; on which see, generally, http://www.eskom.co.za
- 94.
Ibid at 20.
- 95.
Ibid, citing Gideon Stassen, Towards a Renewable Energy Strategy for South Africa, Ph.D. Thesis on file at the University of Pretoria (1996).
- 96.
Act 4 of 2006.
- 97.
GN 1243 in GG 32837 of 31 December 2009 at 10.
- 98.
Department of Minerals and Energy, supra note 53, at para. 3.
- 99.
Carol Paton, “Hot Air v Action”, Financial Mail, 29 July 2010, available at: http://www.fm.co.za/Article.aspx?id=116438 (last accessed 27 February 2012).
- 100.
Janice Roberts, “World Bank approves Eskom Loan” Mail & Guardian, 9 April 2010. For criticism, see, for example, Khadija Sharife, “South Africa: Country’s Dirty Secret – Eskom and the Medupi Power Plant”, 14 May 2010, available at: http://allafrica.com/stories/201005140838.html (last accessed 27 February 2012).
- 101.
Jonathan Faurie, “Medupi Project on Track for Scheduled Delivery”, Engineering News Online, 5 December 2008, available at: http://www.engineeringnews.co.za/article/medupi-project-on-track-for-scheduled-delivery-2008-12-05 (last accessed 27 February 2012).
- 102.
“State of the Nation Address By His Excellency Jacob G. Zuma, President of the Republic of South Africa on the occasion of the Joint Sitting of Parliament, Cape Town”, 9 February 2012, available at: http://www.info.gov.za/speech/DynamicAction?pageid=461&sid=24980&tid=55960 (last accessed 1 March 2012).
- 103.
See Patrick Bond, “South Africa: “Global Sustainability” Wilts in Hot Political Air”, Pambazuka News, 16 February 2012, available at: http://www.pambazuka.org/en/category/features/80007 (last accessed 27 February 2012).
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2013 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Kidd, M., Couzens, E. (2013). Climate Change Responses in South Africa. In: Hollo, E., Kulovesi, K., Mehling, M. (eds) Climate Change and the Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 21. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5440-9_28
Download citation
DOI: https://doi.org/10.1007/978-94-007-5440-9_28
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-007-5439-3
Online ISBN: 978-94-007-5440-9
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)