Authored By: Tsholofelo Maliba
University of Limpopo
Introduction
The enactment of the Climate Change Act 22 of 2024 marked a significant milestone in South Africa’s climate governance framework.[1] For the first time, the country adopted comprehensive legislation intended to coordinate climate change mitigation and adaptation efforts while supporting its international obligations under the Paris Agreement.[2] Despite the Act’s symbolic and legislative significance, concerns have emerged regarding its practical enforceability and institutional effectiveness.
South Africa’s climate governance landscape is particularly important because the country remains among the world’s most carbon-intensive economies, with major emissions originating from the energy and industrial sectors.[3] The effectiveness of climate legislation therefore depends not only on policy objectives but also on the existence of robust enforcement mechanisms capable of ensuring compliance by both state and private actors.
This article argues that although the Climate Change Act establishes an important regulatory foundation, its enforcement architecture remains inadequate due to the delayed implementation of key provisions, the absence of direct sanctions for carbon-budget exceedances, and institutional capacity constraints at provincial and municipal levels. These shortcomings have contributed to a governance gap in which climate litigation, constitutional remedies, and shareholder activism increasingly function as alternative mechanisms of accountability.[4]
Legal Framework Governing Climate Change Regulation in South Africa
Constitutional Foundation
South Africa’s climate governance regime derives its constitutional basis from section 24 of the Constitution of the Republic of South Africa, 1996.[5] Section 24 guarantees the right to an environment that is not harmful to health or well-being and requires the state to adopt reasonable legislative and other measures to promote environmental protection for present and future generations.[6]
This constitutional obligation establishes environmental protection as a matter of fundamental rights rather than merely public policy. Consequently, climate change regulation must be understood within a rights-based framework that places positive obligations upon the state to mitigate environmental harm.
The National Environmental Management Act
The National Environmental Management Act 107 of 1998 (NEMA) serves as the backbone of South African environmental governance.[7] NEMA establishes guiding principles including sustainable development, environmental justice, public participation, and the polluter-pays principle.[8]
Prior to the enactment of the Climate Change Act, climate-related decision-making was primarily undertaken through NEMA’s environmental authorisation procedures. As a result, climate accountability often depended on environmental impact assessments and judicial review proceedings rather than specialised climate legislation.
The Climate Change Act 22 of 2024
The Climate Change Act was enacted to establish a unified framework for climate change mitigation and adaptation.[9] The legislation seeks to coordinate national, provincial, and municipal responses to climate change while supporting South Africa’s Nationally Determined Contributions under the Paris Agreement.[10]
Among its most significant features is the proposed carbon-budget system intended to limit emissions from major greenhouse-gas-emitting entities.[11] The Act also establishes planning obligations for provincial and municipal governments and requires the integration of climate considerations into governmental decision-making.[12]
However, the effectiveness of these provisions depends largely upon implementation measures and supporting regulations.
Case Law Analysis and the Development of Climate Accountability
Earthlife Africa Johannesburg v Minister of Environmental Affairs
The development of South African climate jurisprudence predates the enactment of the Climate Change Act. A significant turning point occurred in Earthlife Africa Johannesburg v Minister of Environmental Affairs, where the High Court held that climate-change impacts constitute a relevant consideration during environmental authorisation processes.[13]
The judgment confirmed that climate concerns could not be separated from environmental governance, and that decision-makers were required to consider the broader environmental consequences of carbon-intensive projects.[14]
Importantly, the case established that constitutional and administrative-law principles could be utilised to advance climate accountability even in the absence of comprehensive climate legislation.[15]
Expansion of Judicial Climate Review
Subsequent climate litigation has further expanded judicial scrutiny of environmentally significant projects.[16] Courts have increasingly recognised that environmental authorisations require meaningful engagement with climate impacts, emissions consequences, and sustainable development objectives.[17]
This development reflects a broader trend in which climate considerations are becoming integrated into administrative-law review and environmental decision-making.
Shareholder Activism and Corporate Accountability
Alongside traditional public-interest litigation, shareholder activism has emerged as an important accountability mechanism.[18] Environmental organisations and institutional investors have increasingly utilised company-law procedures to challenge corporate governance failures relating to climate risks and environmental disclosures.[19]
These developments demonstrate that climate accountability is no longer confined to environmental law alone. Corporate law and governance mechanisms are increasingly being used to influence environmental conduct and promote transparency among major emitters.[20]
Critical Evaluation of the Climate Change Act
Delayed Commencement of Key Mitigation Provisions
One of the most significant weaknesses of the Climate Change Act is the delayed implementation of crucial mitigation mechanisms.[21]
Although the Act formally entered into operation, provisions governing greenhouse-gas listings and carbon-budget allocations were deferred.[22] This delay has prevented the immediate operation of the legislation’s core emissions-control framework.[23]
Without enforceable carbon budgets, major emitters remain largely subject to existing regulatory mechanisms rather than the comprehensive accountability system envisaged by the Act.[24]
The delayed commencement of these provisions raises legitimate questions regarding the effectiveness of the Act as an instrument of climate governance.[25]
Absence of Direct Enforcement Mechanisms
A further concern relates to the absence of direct penalties for exceeding allocated carbon budgets.[26]
Earlier iterations of the Climate Change Bill contemplated stronger enforcement measures, including criminal sanctions for non-compliance.[27] However, the final legislation largely relies upon the interaction between carbon-budget obligations and the Carbon Tax Act.[28]
This approach prioritises economic incentives rather than direct regulatory enforcement.[29] While market-based instruments can play an important role in climate policy, their effectiveness depends upon the costs imposed exceeding the economic benefits of continued emissions.
Where compliance is viewed as a financial calculation rather than a legal obligation, there is a risk that large industrial emitters may treat regulatory penalties as ordinary operational expenses.[30]
Provincial and Municipal Capacity Constraints
The Act assigns substantial responsibilities to provincial governments and municipalities.[31]
These responsibilities include climate-risk assessments, adaptation planning, policy integration, and ongoing monitoring. However, many local authorities continue to face serious financial, technical, and administrative constraints.[32]
The practical effect is that climate obligations may exist in law while remaining difficult to implement in practice. Effective climate governance therefore requires not only legal obligations but also institutional capacity capable of supporting implementation.
Regulatory Influence and Legislative Compromise
The legislative history of the Climate Change Act reveals significant engagement between government and industry stakeholders.[33]
Such engagement is not inherently problematic because consultation forms an important part of democratic law-making. However, concerns arise where regulatory compromises substantially weaken enforcement measures intended to achieve environmental objectives.[34]
The challenge lies in maintaining an appropriate balance between economic development considerations and environmental protection obligations. Excessive regulatory concessions may undermine the effectiveness of climate legislation and reduce public confidence in environmental governance.[35]
Comparative Perspectives
United Kingdom
The United Kingdom’s Climate Change Act 2008 provides one of the most prominent examples of climate legislation based on legally binding carbon budgets.[36]
The British framework combines long-term emissions targets with institutional oversight by the independent Climate Change Committee.[37] This model demonstrates how accountability can be strengthened through continuous monitoring and transparent reporting requirements.
Germany
Germany’s Federal Climate Protection Act establishes sector-specific emissions targets and monitoring mechanisms designed to promote compliance.[38]
The German experience illustrates the importance of linking climate targets to measurable obligations and regular governmental review processes.[39]
Lessons for South Africa
Both jurisdictions demonstrate that effective climate legislation requires more than broad policy commitments.
Meaningful climate governance depends upon legally enforceable targets, transparent compliance mechanisms, independent oversight institutions, and credible consequences for non-compliance.[40]
South Africa’s Climate Change Act provides a legislative foundation but currently lacks several features that strengthen accountability in comparable jurisdictions.[41]
Conclusion
The Climate Change Act 22 of 2024 represents a significant advancement in South Africa’s climate governance framework and reflects the state’s commitment to addressing climate change through dedicated legislation.[42] However, the effectiveness of the Act remains limited by deferred implementation measures, weak enforcement mechanisms, and institutional capacity challenges.[43]
This article has argued that these shortcomings have contributed to a climate-governance gap in which courts, civil society organisations, and shareholder activists increasingly perform accountability functions that would ordinarily be expected of regulatory institutions.[44] While judicial intervention has strengthened climate accountability, reliance on litigation alone cannot substitute for an effective statutory enforcement regime.[45]
To enhance the effectiveness of the Climate Change Act, government should prioritise the implementation of deferred provisions, introduce stronger compliance mechanisms, strengthen municipal capacity, and improve transparency in emissions regulation.[46] Such reforms would better align South Africa’s climate-governance framework with international best practices while promoting meaningful compliance with constitutional environmental obligations.[47]
Reference(S): and Bibliography
Cases
Earthlife Africa Johannesburg v Minister of Environmental Affairs.
Green Connection NPC v Minister of Forestry, Fisheries and the Environment.
South Durban Community Environmental Alliance v Minister of Forestry, Fisheries and the Environment.
Just Share NPC, Aeon Investment Management (Pty) Ltd, Fossil Free South Africa v Thungela Resources Limited, Companies and Intellectual Property Commission (CIPC) (2025) Climate Case Chart
Legislation
Constitution of the Republic of South Africa, 1996.
Climate Change Act 22 of 2024.
National Environmental Management Act 107 of 1998.
Carbon Tax Act 15 of 2019.
Companies Act 71 of 2008.
Climate Change Act 2008 (United Kingdom).
Federal Climate Protection Act (Bundes-Klimaschutzgesetz – KSG) (Germany).
Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740.
Secondary Sources
Kotzé LJ, Global Environmental Constitutionalism in the Anthropocene.
Peel J and Osofsky HM, Climate Change Litigation: Regulatory Pathways to Cleaner Energy.
Paterson A and Kotzé LJ, Environmental Compliance and Enforcement in South Africa.
Colegrave A and Moodley K “Unpacking the South African Climate Change Act” (12 December 2024) White & Case LLP Insight Alert.
Engel K “‘Doesn’t have teeth’ — experts voice concern about deferral of ‘key’ clauses in Climate Change Act” Daily Maverick (18 March 2025).
Just Share NPC “Compliance and enforcement void in the Climate Change Bill & draft carbon budget regulations” (Just Share NPC Briefing, 5 March 2024).
Just Share NPC The Obstruction Playbook: How Corporate Lobbying Threatens South Africa’s Just Transition (Lobbying Report, May 2025).
National Treasury Draft Response Document on the 2025 Rates and Monetary Amounts and Amendment of Revenue Laws Bill (4 November 2025).
National Treasury Budget Review 2025 (12 March 2025).
Rapson G and Moodley G “Climate change assessment reports for environmental authorisations: When judicial precedent outpaces regulatory clarity” (2026) Webber Wentzel News.
Western Cape Government Saldanha Bay Municipality 2026/2027 SIME Assessment Report (WC014).
[1] Climate Change Act 22 of 2024 (assented to 18 July 2024, published 23 July 2024 in GN 5050, GG 50966).
[2] Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740. South Africa ratified the Paris Agreement on 22 April 2016 and submitted its updated Nationally Determined Contribution (NDC) committing to a target of 350-420 MtCO2e by 2030.
[3] Just Share NPC The Obstruction Playbook: How Corporate Lobbying Threatens South Africa’s Just Transition (Report, May 2025) 4, 15 (discussing South Africa’s status as the world’s 15th largest carbon emitter with one of the most carbon-intensive economies on earth).
[4] Rapson G and Moodley G “Climate change assessment reports for environmental authorisations: When judicial precedent outpaces regulatory clarity” (2026) Webber Wentzel News 3.
[5] Constitution of the Republic of South Africa, 1996 s 24.
[6] Ibid s 24(a)-(b). See also Müller E and Odendaal N “Courtroom tests for climate promises: South Africa and Zambia’s differing constitutional approaches to judicial enforcement of climate commitments” (23 June 2026) Herbert Smith Freehills Kramer Legal Notes.
[7] National Environmental Management Act 107 of 1998 (NEMA).
[8] NEMA (note 7 above) s 2. See also Paterson A and Kotzé LJ (eds) Environmental Compliance and Enforcement in South Africa (2009) Juta: Cape Town 120.
[9] Climate Change Act 22 of 2024 s 2 (Objectives of the Act).
[10] Ibid. See also Colegrave A and Moodley K “Unpacking the South African Climate Change Act” (12 December 2024) White & Case LLP Insight Alert.
[11] Climate Change Act 22 of 2024 s 27.
[12] Ibid ss 7 and 15.
[13] Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others ZAGPPHC 58; 2017 (2) SA 519 (GP).
[14] Ibid para 82.
[15] Rapson & Moodley (note 4 above) 3.
[16] See Green Connection NPC and Another v Minister of Forestry, Fisheries and the Environment and Others (5676/2024) ZAWCHC 349 (Green Connection); and South Durban Community Environmental Alliance and Another v Minister of Forestry, Fisheries and the Environment and Others (479/2023) ZASCA 134 (SDCEA).
[17] Rapson & Moodley (note 4 above) 4.
[18] Just Share NPC (note 3 above) 2.
[19] Companies Act 71 of 2008 ss 62(3)(c) and 65(3).
[20] See Just Share NPC, Aeon Investment Management (Pty) Ltd, Fossil Free South Africa v Thungela Resources Limited, Companies and Intellectual Property Commission (CIPC) (2025) Climate Case Chart.
[21] Engel K “‘Doesn’t have teeth’ — experts voice concern about deferral of ‘key’ clauses in Climate Change Act” Daily Maverick (18 March 2025).
[22] Proclamation in the Government Gazette, 17 March 2025 (bringing parts of the Act into force but deferring Sections 26 and 27).
[23] Engel (note 21 above) quoting Brandon Abdinor (acting head of the Pollution and Climate Change Programme, Centre for Environmental Rights).
[24] Ibid quoting James Reeler (senior manager on climate action, WWF South Africa).
[25] Colegrave & Moodley (note 10 above) 104.
[26] Climate Change Act 22 of 2024 s 27 (linking exceedance to higher tax rate under the Carbon Tax Act 15 of 2019).
[27] Department of Environmental Affairs Draft Climate Change Bill 2018 (8 June 2018) s 19.
[28] Climate Change Act 22 of 2024 s 27.
[29] National Treasury Draft Response Document on the 2025 Rates and Monetary Amounts and Amendment of Revenue Laws Bill (4 November 2025), confirming a proposed penalty rate of R640/tCO2e for carbon budget exceedance.
[30] Just Share NPC “Compliance and enforcement void in the Climate Change Bill & draft carbon budget regulations” (Just Share NPC Briefing, 5 March 2024).
[31] Climate Change Act 22 of 2024 s 15.
[32] Western Cape Government Saldanha Bay Municipality 2026/2027 SIME Assessment Report (WC014), noting significant municipal capacity constraints in executing environmental management and climate change needs assessments.
[33] Just Share NPC (note 3 above) 27-37.
[34] Ibid at 35 (detailing Business Unity South Africa and Minerals Council South Africa’s persistent lobbying which successfully removed criminal penalties for carbon budget exceedance from successive Bill drafts).
[35] National Treasury Budget Review 2025 (12 March 2025), showing the abandonment of proposed Phase 2 carbon tax tax-free threshold reductions, maintaining the basic 60% allowance intact until 2030 following intense corporate lobbying by Sasol and BUSA.
[36] Climate Change Act 2008 (UK).
[37] Ibid s 33. See also Peel J and Osofsky HM Climate Change Litigation: Regulatory Pathways to Cleaner Energy (2015) Cambridge University Press: Cambridge 120-145.
[38] Federal Climate Protection Act (Bundes-Klimaschutzgesetz – KSG) (Germany).
[39] Ibid ss 3-4. See also Kotzé LJ Global Environmental Constitutionalism in the Anthropocene (2016) Hart Publishing: Oxford.
[40] Peel and Osofsky (note 37 above).
[41] White & Case LLP (note 10 above).
[42] Climate Change Act 22 of 2024 Preamble.
[43] Engel (note 21 above).
[44] Rapson & Moodley (note 4 above) 4.
[45] Just Share NPC (note 29 above).
[46] Ibid.
[47] Constitution of the Republic of South Africa, 1996 s 24.
