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The Heat is On: Local Government and Climate Governance in South Africa

Published online by Cambridge University Press:  24 March 2014

Anél du Plessis and
Louis J Kotzé
Rights & Permissions [Opens in a new window]

Abstract

Departing from the fact that climate change poses localized effects, this article critically considers from a legal perspective the role of local authorities in the South African government's response to climate change. A brief review of the relevance of climate mitigation and adaptation is followed by an explanation of what these concepts mean for local government. The article then discusses the extent to which the country's environmental and local government law and policy framework provides for municipalities' participation and involvement in climate governance. The article identifies strengths and weaknesses in relation to the local sphere of government's formal involvement in climate governance vis-à-vis authorities in the provincial and national spheres. It concludes that, as a result of their proximity to the effects of climate change, municipalities have a critically important role to play in the climate governance effort, despite the patchwork of environmental and local government laws and lack of explicit, consolidated policy and legal arrangements to this effect.

Information

Type
Research Article
Information
Journal of African Law , Volume 58 , Issue 1 , April 2014, pp. 145 - 174
Copyright
Copyright © SOAS, University of London 2014 

INTRODUCTION

“… local governments will be critical players in any attempt to implement national and international policy imperatives to reduce emissions of greenhouse gases, and have a significant role to play in climate protection in their own right”.Footnote 1

The way in which the world perceives environmental governance has been fundamentally influenced by climate change.Footnote 2 Overall there seems to be agreement that the causes and impacts of climate change must be governed in order to preserve the environment and life on earth.Footnote 3 Climate change has many dimensions and root causes,Footnote 4 several of which require concerted cross-border and supra-national strategies and action plans.Footnote 5 While climate change has always been perceived as being a global issue, its immediate impacts are decidedly localized.Footnote 6 It is pertinent that national governments must design and implement domestic strategies and action plans to facilitate adaptation, while simultaneously taking measures towards mitigating climate change.Footnote 7 Domestic responses to global environmental problems may have significant bearing on the success of the global response.Footnote 8 It is therefore not only through supra-national interventions and global environmental governance, but also through domestic governance arrangements that climate change must be understood and governed.Footnote 9

In South Africa, climate change is a highly relevant concernFootnote 10 and the state cannot shy away from addressing its causes and impacts, despite the country being a non-Annex 1 country.Footnote 11 Climate change has become an issue which warrants the urgent attention of all three government spheres: national, provincial and local. Yet exactly what this would mean for the semi-federal South African state and its constituencies is not entirely clear. Unfortunately, of the three government spheres, local government is often regarded as the “weakest” sphere. As a result, its contribution to tackling global governance issues, which usually play out in supra-national fora such as the United Nations (UN) and a range of other international organizations, is underestimated.

This article argues that, because of its localized effects, local government has a prominent role to play in the domestic response to climate change. It investigates the extent to which it would be possible for municipalities to contribute to South Africa's climate governance effort through the existing legal framework. In doing so, it offers one of the first scholarly attempts in South Africa to map and critique the role of local government in climate governance. The article commences by briefly surveying some perspectives on climate change and climate governance in the country. It then determines the role of local government in mitigation and adaptation, with reference to constitutional, environmental and local government law as well as the recently published National Climate Change Response White Paper (2011) (the CCR White Paper).Footnote 12 In conclusion, it reflects on what the authors perceive to be some of the remaining gaps and opportunities with respect to local climate governance. The article is based on the central hypothesis that, without municipalities' direct involvement in South Africa's response to climate change, many of the overall national governance efforts and interventions are likely to be stillborn.

A CHANGING ENVIRONMENTAL GOVERNANCE LANDSCAPE

The South African environmental governance landscape has changed dramatically over the last two decades for reasons varying from significant depletion of natural resources to the demise of apartheid and the birth of a new, transformative constitutional order. These progressive developments, however, have not immunized South Africa against the occurrence of many problematic natural phenomena within its own borders and elsewhere in the world. As part of sub-Saharan Africa, it is one of the countries expected to suffer most from climate change.Footnote 13 To be sure, climate change has been described as “the wild card in South Africa's efforts to maintain a functioning environment and the ecosystem services it provides for all human endeavor and particularly in the fight against poverty”.Footnote 14 The complex challenges that might arise from climate change are compounded by, for example: high levels of uncertainty about its effects; wide-spread socio-economic decay among poor and marginalized urban and rural communities; lack of basic services and ill-health; the need for vigorous economic expansion and the country's concomitant reliance on fossil fuels; as well as the need to protect many sensitive (often unique) ecosystems, water resources and biodiversity.Footnote 15

Despite the impetus for transformation that has over time resulted from environmental externalities, the wholesale reform of South Africa's environmental governance regime is a direct result of its dramatically reconstituted post-apartheid democratic order, its foundation being the Constitution of the Republic of South Africa, 1996 (the Constitution).Footnote 16 Together with and as a result of various laws and policies aimed at transformative justice and democracy, the government structure has changed considerably since the early 1990s. In its present guise, the country is constituted as a semi-federal state with three autonomous, yet interrelated, government spheres (national, provincial and local) that are all bound by a set of principles for co-operative government and the maintenance of good intergovernmental relations.Footnote 17 While national and provincial authorities are considered more senior and “influential”, it is local government that has in recent years been constitutionally designated to be the “developmental” sphere of government.Footnote 18 This has been affirmed by the courts where, in the case of CDA Boerdery v Nelson Mandela Metropolitan Municipality, the Supreme Court of Appeal observed that the new constitutional order conferred “a radically enhanced status on municipalities”, which is “materially different from the pre-constitutional era”.Footnote 19 Democratic local government enjoys a far greater measure of self-government and responsibility towards communities and development issues than ever before.Footnote 20 Its developmental mandate bestows upon all municipalities the obligation to be more than the mere service delivery arm of government,Footnote 21 an idea that is rooted in the White Paper on Local Government:

“Extremely rapid changes at the global, regional, national and local levels are forcing local communities to rethink the way they are organised and governed. … National frameworks and support from other levels of government are critical, but cities, towns and rural communities are increasingly having to find within themselves ways to make their settlements more sustainable. This requires trust between individuals and open and accommodating relationships between stakeholders. Local government has a key role to play in building this kind of social capital – this sense of common purpose – to find local solutions for increased sustainability.”Footnote 22

The link between municipalities' function as instigators and protectors of social capital and its important role in climate governance is therefore almost intuitive. Noticeably, since the first conference of the parties in 1995,Footnote 23 local authorities from across the world have been represented at UN Framework Convention on Climate Change (UNFCCC) key events.Footnote 24 The significance of local authorities' involvement in climate change deliberations has been further acknowledged by various international stakeholders and is often articulated along the following lines:

“… by nature, public programs and policy strategies designed at the federal or international level have a limited level of specificity, whereas local, regional and state governments are in a stronger position to tailor climate change preparedness strategies to their specific circumstances, and to the unique set of climate change impacts that they expect to face. Therefore, while higher levels of government can and must provide funding and support for climate change preparedness strategies on the ground, local, regional and state governments have an equal or even greater responsibility to plan proactively.”Footnote 25

Others have argued that “cities, rather than nation-states, may be the most appropriate arena in which to pursue policies to address specific global environmental problems.”Footnote 26 City governments specifically, are regarded as important role players for several reasons. For example, the world is becoming highly urbanized and, as a result of cities being places of significant energy consumption and waste production, local government could directly influence some of the main causes of climate change. In this way, through the regulation of, inter alia, transportation, energy and water supply, and town and city planning, municipalities are ideally suited to being able to contribute directly to the mitigation of, and adaptation to, climate change-induced environmental and social threats. Many municipalities are already familiar with local sustainability issues through their involvement with international developments such as Local Agenda 21,Footnote 27 and becoming more directly involved in local climate governance would not be an entirely foreign idea. Moreover, local governments are ideally placed to foster partnerships between a range of public and private stakeholders.Footnote 28 Against this background, the understanding is that developmental local government in South Africa has a role to play in governance matters with local relevance, including climate governance, no less because climate change impacts on a wide range of development issues including, for example, environment, health, water provision, housing, disaster management, sanitation, food production and human settlements.Footnote 29

CLIMATE CHANGE AND SOUTH AFRICA

It is both impossible and undesirable for this article to review the extensive literature dealing with the impact of climate change on South Africa, its people and the environment.Footnote 30 This is a well-trodden field and this article merely points out some highlights in this respect. First, South Africa is internationally regarded as a significant emitter of carbon dioxide and a major contributor to climate change.Footnote 31 Secondly, the average temperature is rising and has been doing so for more than four decades. In 2004, scientists examined records from 26 weather stations across the country and calculated that there has been about a half degree Celsius average increase since 1960.Footnote 32 More recent studies indicate that the country has warmed by approximately one degree Celsius in the past 30 years; annual rainfall is predicted to decrease by between 20 and 40 mm per annum by 2050; the sea level is rising by between 1.9 mm and 2.74 mm per annum; and there is an increase in climate variability and the incidence of extreme climate events, with a substantial increase in costs to respond to these events.Footnote 33 These sobering statistics suggest that government has little choice but to invest in and develop a suite of laws, policies and programmes directed at climate mitigation and adaptation, especially with a view to mandating immediate action and response from all organs of state in partnership with other stakeholders.

While the causes of climate change are many, it is particularly important to canvass some of the main dimensions of its impacts. In South Africa, a municipality is constitutionally mandated to govern “on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution”.Footnote 34 These local government affairs traditionally include environmental health, town planning, urban settlement, and the provision of water, food, sanitation and emergency services.Footnote 35 Notably, these are also the areas on which climate change will impact most, and it is to be expected that they will form the foci in responding to climate change. As a result of the fact that South Africa is geographically very diverse, the impact of climate change on these areas will also vary from one province to another and from one municipal area or locality to another. Various impacts of climate change must be considered in this respect: predicted warmer temperatures facilitating the increase and spread of several vector- and water-borne diseases, especially bilharzia, malaria and cholera; an increase in other health issues such as respiratory diseases, heat stress and dehydration; intensifying scarcity of water; impacts on agriculture and local subsistence farmers and the rural poor affecting livelihoods and nutrition; affects on biodiversity and ecosystems influencing, inter alia, local tourism and, by implication, local economic development; growing coastal impacts and rising sea-level, posing several problems for local town planning, coastal management and emergency services; and disasters, property damage and increased loss and displacement of people due to unpredictable floods, droughts and fires, for example.Footnote 36 In most instances, these impacts are linked to specific areas of local government competence and are furthermore fundamentally important to human development and survival at community level, and for the everyday health, well being and existence of human beings.Footnote 37 This suggests that local authorities will have a particularly critical role to play in addressing the diverse spread and intensity of climate change impacts, perhaps more than the authorities in the provincial and national spheres.

CLIMATE MITIGATION, ADAPTATION AND IMPACTS: THE ROLE OF LOCAL GOVERNMENT

Mitigation

Mitigation is a central component of responding to climate change, as it refers to the collection of actions that prevent greenhouse gases from entering the atmosphere, remove greenhouse gases from the atmosphere, or reduce the sources or enhance the sinks of these gases.Footnote 38 The primary objective of mitigation is to limit the increase in atmospheric greenhouse gas concentrations, thereby reducing the extent of human-induced climate change.Footnote 39 Erens, Verschuuren and Bastmeijer describe the requisite threshold for mitigation as “limiting the human causes of climate change as much and as soon as possible”.Footnote 40 It is widely acknowledged that any future international commitment to climate change will depend on when and at what level atmospheric concentrations are stabilized through mitigation. As a means of mitigation, much of the international attention has focused on measures to reduce carbon dioxide emissions, especially those related to fossil fuel consumption.

As such, climate mitigation and local government are not the strange bedfellows one would imagine them to be. 18 years ago ICLEI – Local Governments For Sustainability (ICLEI) (the world's flagship local government forum) launched its Cities for Climate Protection (CCP) programme.Footnote 41 The meaning of mitigation for local government is aptly illustrated by the five milestone process that underpins the CCP programme.Footnote 42 In short, ICLEI suggests that mitigation at local government level necessitates ongoing monitoring and verification of progress on the implementation of measures to reduce or avoid greenhouse gas emissions. These measures include, among others, assessments and planning with respect to regulating activities in local communities and changing in-house behaviour such as municipalities' own energy and fuel consumption.Footnote 43

Adaptation

In essence, adaptation deals with ways to cope optimally with climate change and its consequences through strategies ranging from risk-reduction to post-disaster reconstruction.Footnote 44 It encapsulates responses, adjustments and actions by people and natural systems to accommodate and reduce vulnerability to the impacts of climate change.Footnote 45 It refers also to adjustments and reactions in natural or human systems in response to actual or expected climatic stimuli and their effects. Adaptation differs from mitigation in that the former is not aimed directly at addressing the causes of climate change, but rather at reducing vulnerability to its impacts. Some even regard adaptation to be far more complex than mitigation.Footnote 46

Adaptation responses depend on where people live, the structure of their economic systems, and how and from what they derive their livelihoods. One could therefore argue that “adaptation largely entails a localized response”.Footnote 47 Some adaptation measures may have to be reactive, while others may have to be proactive, requiring the implementation of measures to address impacts before they happen, to reduce future climate risks and vulnerability. For countries such as South Africa, the primary focus of adaptation strategies would, depending on local needs and geographic features, be to maintain water and food security, protect peoples' livelihoods, and reduce vulnerability to extreme weather events such as droughts and floods. In these “localized” responses, the role of municipalities may be critical.

There are, however, limits to how far adaptation can maintain current socio-economic and environmental systems. Permanent long-term declines in annual precipitation or permanent changes in seasonal water flows may eventually require the complete transformation of existing agricultural systems or even the total abandonment of agricultural activities in some localities. Food and water scarcity as well as sea level rise may also force some communities to migrate to other areas as the only remaining adaptation option. This could result in conflict in localities receiving climate change refugees, especially when resources are already scarce. These considerations cumulatively suggest that, due to the inherent limitations of various adaptation measures, ongoing planning would be crucial to facilitate both reactive and proactive strategies to reduce vulnerability and the inevitable consequences of climate change.Footnote 48 Municipalities may have a particularly important role to play in adaptation, especially considering their close proximity to the unique make-up of exposed local communities and ecosystems, as well as the risks of harm at the core of local peoples' vulnerability.Footnote 49

ENVIRONMENTAL MANDATES AND AREAS OF REGULATORY COMPETENCE

The entrenchment of a constitutional environmental right and the redesign of the constitutional structures and powers of local government in the post-apartheid ConstitutionFootnote 50 resulted in the creation of an “environmental mandate” for local authorities that is of considerable scope. As shown below, since 1996 local government in South Africa has been obliged to take an active role in designing, implementing and enforcing environmental law. Several constitutional powers and areas of regulatory competence also place the country's municipalities at the core of the strategies considered necessary to respond to climate change. Considering that climate change is perceived as an environmental concern, this section discusses the mandate of municipalities in the broad sense, by distilling from the Constitution and existing local government law their substantive duties in relation to the environment.

The Constitution

The only explicit environmental provision in the Constitution is also the most important and potentially influential in the climate change context. Section 24 provides for an environmental right which raises environmental care to the “higher”, more enduring constitutional level.Footnote 51 The right continues to have a major influence on domestic environmental law and governance, and it is thus not surprising that it has received considerable attention in the literatureFootnote 52 and in court.Footnote 53 For present purposes, it is important to note that section 24 places a positive duty on the entire government to secure a certain environmental quality which is not harmful to peoples' health and well-being, and to protect the environment for present and future generations through legislative and other extra-legal measures. These measures must “prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development”.Footnote 54 This terminology is akin to and characteristic of terminology traditionally found in the climate governance discourse.Footnote 55 Section 24 espouses a very explicit duty for national, provincial and local authorities to devise, adopt and implement a whole range of generally described “measures” that must achieve constitutionally entrenched objectives. These measures must be “reasonable”. They could be legal, extra-legal or both; and they could include virtually anything that is not unconstitutional and that answers to the dictates and achieves the objectives of the environmental right. All public authorities must respect, protect, promote and fulfil all rights in the Bill of Rights in chapter 2 of the Constitution, including the environmental right contained in section 24. Further, apart from the issue of “measures”, section 24 also requires public authorities to act positively by providing them with a constitutional mandate with respect to a list of functional areas of (governing) competence.Footnote 56 This could arguably mean that failure by municipalities to act against climate change might not pass constitutional muster and that a municipality could be held accountable to fulfil its constitutional environmental duties with respect to climate change.Footnote 57 It is thus clear that municipalities have a very explicit constitutional mandate to respond to climate change challenges insofar as they impact on or may impact in future on the local interests protected and guaranteed by the environmental right.Footnote 58 Moreover, the environmental right is sufficiently clear and comprehensively formulated to provide a direct constitutional mandate and obligation to justify and inform the role of municipalities in responding to climate change. It also provides the constitutional mandate either to design and adopt new legal and other measures, or to use and amend existing ones with a view to responding sufficiently to climate change.

The Constitution further provides for the right to equality, the right to life, the right to human dignity and the right of access to sufficient water.Footnote 59 The multidimensional nature of the phenomenon of climate change could in various ways have a negative impact on each of these four rights and what they endeavour to achieve. The fact that municipalities have the duty to protect these rights and that they must take affirmative or positive action to promote, respect and fulfil them is an important factor when assessing the role of municipalities in responding to climate change, an idea which is reinforced by the increasing number of rights-based cases being brought against municipalities based on deteriorating municipal services in the context of human rights.Footnote 60 Several of the constitutionally entrenched objects of local government furthermore determine the kind of activities necessary to respond effectively to climate change, namely: to provide democratic and accountable government for local communities; to ensure provision of services to communities in a sustainable manner; to promote social and economic development; and to promote a safe and healthy environment.Footnote 61

Social and economic development are inherently intertwined with environmental considerations and, in the light of the predicted impacts of climate change referred to earlier, it is clear that the basic needs of people across South Africa have the potential to be affected. The Constitution makes it clear that a municipality must structure and manage its administration and budgeting and planning processes with the view to prioritizing the basic needs of the community, and promoting social and economic development locally.Footnote 62 This duty is not repeated with respect to national and provincial government. Every municipality must structure and manage its operations (including budgeting, planning and land-use management) to avoid, minimize and address negative climate impacts which may affect the fulfilment of its basic constitutional duties. Since 1996 local government has functioned as an autonomous government sphere bestowed with legislative and executive powers;Footnote 63 a municipality may exercise these powers in relation inter alia to air pollution, building regulations, fire-fighting services, municipal planning, municipal health services, municipal public transport, storm-water management systems, water and sanitation services, control of public nuisances and public places, refuse removal, refuse dumps, and solid-waste disposal.Footnote 64 This would mean that municipalities would have the authority both to make their own local laws (by-laws), plans and policies directed at climate governance, and to implement them with respect to a wide range of issues relevant to mitigation and adaptation.

In addition to the areas for which municipalities must take legislative and executive responsibility, it is possible for them to incur many more duties and for their powers to be extended beyond their constitutional areas of original (governing) competence. Complementary to the so-called principle of institutional subsidiarity,Footnote 65 the Constitution determines that national and provincial authorities must assign to a municipality, by agreement and subject to possible conditions, the administration of a matter originally listed as being part of the competence of national and provincial government but which necessarily relates to local government, if that matter would most effectively be administered locally and a municipality has the capacity to administer it. In the climate change context, these matters could include the administration of indigenous forests, agriculture, disaster management, environment, health services, housing, nature conservation, pollution control, soil conservation, and urban and rural development.Footnote 66 This suggests that the Constitution grants almost limitless scope for specifically local government's intervention in responding to climate change. The view that municipalities' governing power in terms of responding to climate change is therefore to a large extent constitutionally protected can also be deduced from a series of recent court cases.Footnote 67 In these cases, municipalities' autonomy with respect to land-use management was a critical issue, with the courts confirming that developments such as mining and luxury housing projects, often authorized at national and provincial level, can only proceed if they also accord with municipalities' land-use management plans and zoning schemes.

Local government framework law

Local government in South Africa is regulated by more than 200 different statutes. The principal suite of laws, however, comprises the Local Government: Municipal Structures Act 117 of 1998, the Local Government: Municipal Systems Act 32 of 2000 (the Systems Act) and the Local Government: Municipal Finance Management Act 56 of 2003. While all of these and many other local government laws may have indirect environmental relevance and subsequent meaning for responding to climate change, it suffices for our current purposes to focus specifically on the primary law in this respect, namely the Systems Act. This act, dealing with the substance of local governance principles and structures, would be the main local government law to determine and frame the environment-related governance functions and responsibilities of municipalities.

The Systems Act compels municipalities to provide environmentally sustainable services and defines “environmentally sustainable” to mean the provision of a municipal service (ie any service which a municipality in terms of its functions and powers provides for the benefit of the local community) in a manner aimed at ensuring that: the risk of harm to the environment and to human health and safety is minimized to the extent reasonably possible under the circumstances; the potential benefits to the environment and to human health and safety are maximized to the extent reasonably possible under the circumstances; and legislation intended to protect the environment and human health and safety is complied with.Footnote 68

The act confirms further that municipal councils must promote a safe and healthy environment in a municipality and contribute, with other organs of state, to the progressive realization of the environmental right and the right of access to sufficient water.Footnote 69 In order to effect the former, all municipalities have since 2001 been required to undertake short, medium and long term strategic “developmentally-oriented planning”.Footnote 70 An integrated development plan (IDP), the content of which is statutorily prescribed, must reflect a spatial development framework (SDF) with basic guidelines for a local land-use management system and different sector plans, including a disaster management plan, an air quality management plan and a biodiversity management plan.Footnote 71 The potential of the IDP system to achieve environmental objectives locally, specifically in relation to climate change response measures, should not be underestimated. SDFs, for example, provide a spatial expression of the IDP and outline priorities from a biophysical and socio-economic perspective on a map displaying the desired spatial layout of a municipality. As such, IDPs with their SDFs could, inter alia, be used to respond in terms of spatial planning (which is an exclusive function of local government) to potential local climate change risks and threats. It has been stated that, to achieve South Africa's national climate change policy objectives effectively, a proper climate change response must be incorporated into the planning and implementation objectives of local authorities: “[m]ainstreaming climate change plans into local development plans requires that planners engage in a systematic and comprehensive effort to reduce the negative impacts of climate change through integration into the overall development and planning of each municipality”.Footnote 72 When read with the various environmental sector plans municipalities must include in their IDPs, it seems as if the IDP system could be an indispensable planning, strategic and measuring tool for local climate change responses in the medium and long term.

As is the case with the Constitution, the foregoing suggests that a prominent yet generic developmental and environmental mandate for local government is entrenched in the framework of local government law. Due to the wide scope of this mandate, every municipality can be expected to be ready to respond locally to the causes and effects of climate change.

Environmental framework law

The National Environmental Management Act 107 of 1998 (NEMA) is South Africa's principal environmental framework law and provides generic or umbrella principles and obligations in relation to all activities that affect or may affect the environment. Although NEMA does not aim to regulate “local environmental governance” explicitly, its provisions bind “organs of state” which, by virtue of section 239 of the Constitution, include municipalities. This is important because section 2 of NEMA sets out the national environmental management principles which “apply to the actions of all organs of state which may significantly affect the environment”.Footnote 73 These principles must “guide the interpretation, administration and implementation of … [NEMA] … and any other law concerned with the protection or management of the environment”,Footnote 74 and are thus explicitly applicable to a municipality's climate governance efforts.

In terms of NEMA's precautionary and preventive principles, municipalities must ensure through their governing efforts, “that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions”, and “that negative impacts on the environment and on people's environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimized and remedied”.Footnote 75 These principles are especially relevant for short and long term climate mitigation and adaptation strategies at the local level because they stress the need to be cautious, risk-averse, preventive and predictive especially where knowledge of the future impact of climate change is limited. Moreover, these principles are part of the suite of “legislative and other measures” provided by the environmental right, which means that they have a prescriptive and proscriptive function in relation to municipalities' actions. All municipal activities, including climate change response measures, must accordingly be guided by the preventive and precautionary approaches. As a regulated entity, a municipality itself must also comply with the NEMA principles with respect to its in-house activities (such as procurement and fleet management) which might contribute to climate change generally.

Section 2 of NEMA stresses the need for an integrated and holistic approach to environmental governance requiring, inter alia, that municipalities acknowledge “that all elements of the environment are linked and interrelated” and that a municipality “must take into account the effects of decisions on all aspects of the environment and all people in the environment by pursuing the selection of the best practicable environmental option”.Footnote 76 Municipalities are therefore obliged to design holistic local strategies and plans and to consider the “best practicable environmental option” in their climate change response measures.Footnote 77 Local measures for mitigation and adaptation must accordingly allow for short- and long-term environmental benefits while not eroding social and economic capital. Environmental justice is another relevant NEMA principle, especially so far as mitigation, adaptation and climate justice are concerned. Local climate change response measures must typically take account of the need to pursue inter- and intra-generational fairness and equality “so that adverse environmental impacts shall not be distributed in such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvantaged persons”.Footnote 78

Section 2(4)(n) of NEMA arguably provides the most explicit mandate for municipalities' involvement in responding to climate change. It requires all organs of state (which includes every municipality) to discharge global and international environmental responsibilities in the national interest. These would include responsibilities deriving from the international climate law framework insofar as South Africa is a party to these (the UNFCCC and the Kyoto Protocol),Footnote 79 as well as all climate-related customary international and soft-law provisions. While public international law cannot impose obligations directly on municipalities, international environmental law obligations may be incorporated by the national legislature into South African law,Footnote 80 which would then be binding on municipalities.Footnote 81 Municipalities' climate response measures may therefore be indirectly dictated by the international legal order's provisions on, for example, mitigation and adaptation. Conversely, municipalities also play an important role in South Africa's overall fulfilment of its international climate law obligations. Local government has a real opportunity to align its own climate change response measures to the prevailing international paradigm, giving effect in real terms to the popular phrase often quoted in local government circles: “[t]hink globally, act locally”.Footnote 82

Chapter 3 of NEMAFootnote 83 provides for two important national environmental management planning instruments: environmental management plans (EMPs) and environmental implementation plans (EIPs). Currently, these plans should only be developed and implemented by national government and environmental departments in the national sphere. The purpose of these plans is to “co-ordinate and harmonise the environmental policies, plans, programmes and decisions of the various national departments that exercise functions that may affect the environment or are entrusted with powers and duties aimed at the achievement, promotion, and protection of a sustainable environment, and of provincial and local spheres of government”.Footnote 84 EMPs and EIPs could be useful tools to aid inter-governmental planning, integration, co-ordination and co-operation; further, municipalities could inform and contribute to the development and implementation of these instruments, also with a view to co-ordinating local climate change response measures and aligning local plans with those of other authorities.

Chapter 8 of NEMA provides for environmental management co-operation agreements (EMCAs) which may be concluded between, for example, a municipality and any (natural or legal) person or community for the purpose of promoting compliance with the NEMA principles.Footnote 85 An EMCA specifically aims to facilitate the undertaking of a person or community to improve on legal standards for environmental protection applicable to the subject matter of the agreement.Footnote 86 The subject matter is not specifically prescribed and parties to an EMCA could, for example, agree on improved energy efficiency, the reduction and re-use of waste, or improving precautionary safety measures in constructing buildings in areas prone to environmental disasters such as floods. Municipalities could typically use EMCAs as legally binding instruments to foster greater co-operation with local industries, with the view to improving climate change relevant standards and requirements laid down by existing environmental laws, such as those relating to air quality and water. The suggested co-operation between municipalities and private sector stakeholders in the jurisdictional area of those municipalities also resonates well with the increasingly popular notion of “governance without government”,Footnote 87 where non-state actors become involved in governance.

Municipalities have fairly far-reaching legislative powers and they are free to develop and adopt their own by-laws (including environmental by-laws) subject to their not being unconstitutional or contrary to provincial or national laws.Footnote 88 The purpose of environmental by-laws is generally to: provide measures that mitigate adverse environmental impacts locally; facilitate the implementation of decisions taken by the municipality and the conditions imposed as a result of the municipality's authorization of new activities and developments, or through the setting of local norms and standards in respect of existing activities and developments; and ensure the effective environmental management and conservation of resources and impacts within the jurisdiction of a municipality, in co-operation with other organs of state. NEMA specifically provides for “model environmental by-laws” (meaning that they have been developed generically by national government) and the opportunity for municipalities to develop further, adopt and implement them.Footnote 89 While the intention is that municipalities will draft and enact their own by-laws, model environmental by-laws may counter insufficient exercise of legislative authority or lack of law-making capacity at the local level. While municipalities may only regulate those environmental issues falling within the purview of their area of governing competence, national government could still use model environmental by-laws to fashion, inter alia, legally enforceable provisions and mechanisms enabling local responses to climate change. National government could accordingly indirectly infiltrate local communities with climate change response measures using model environmental by-laws and the regulatory powers of municipalities as the medium so to do.

Specific and sector (national) environmental laws

South Africa has no specific national law exclusively dedicated to climate change. Instead, climate change is regulated by policy documents, generic laws and a myriad of specific environmental management acts (SEMAs) enacted under the NEMA framework. The SEMAs include provisions relevant for climate governance, particularly with respect to air quality, biodiversity, protected areas, waste management and coastal zone management.

National Environmental Management: Air Quality Act

The National Environmental Management: Air Quality Act 39 of 2004 (AQA) provides, inter alia, for measures to protect and enhance air quality in South Africa.Footnote 90 Section 11 obliges municipalities to “identify substances ... in ambient air which ... present a threat to health, well-being or the environment in the municipality or which the municipality reasonably believes present such a threat”; and “in respect of each of those substances ... establish local standards for emissions from point, non-point or mobile sources in the municipality”. The AQA thus enables municipalities to contribute to climate mitigation through the regulation of emission levels. Under section 14(3), a municipality must designate an air quality officer who co-ordinates air quality management in the municipality's jurisdiction. The act does not specifically detail this officer's duties, giving a municipality a free rein to decide on this official's powers and functions and, specifically, to determine his role in local climate mitigation measures.

Section 15 obliges municipalities to draft air quality management plans (AQMPs) which must be included as a sector plan in the municipality's IDP. AQMPs must aim to: improve air quality; identify and reduce the negative impact on human health and the environment of poor air quality; address the effects of emissions from the residential use of fossil fuels; address the effects of industrial emissions; address the effects of emissions from any point or non-point source of pollution; implement South Africa's obligations in respect of international agreements; give effect to best practice in air quality management; and describe how the municipality will give effect to its AQMP.Footnote 91 The value of an AQMP for the purposes of mitigation at the local level is obvious and it is a potentially powerful planning instrument to factor in additional mitigation considerations. By virtue of the AQA, district and metro municipalities have a very direct “command-and-control” type role to play in reducing emission levels locally. Sections 21 and 22 of the AQA provide for national and provincial governments to publish lists of activities which may result in atmospheric emissions. If an activity is listed, no person may embark on that activity without obtaining authorization or a licence. Importantly, metropolitan and district municipalities are charged with implementing South Africa's atmospheric emissions licensing system.Footnote 92 When considering licence applications, municipalities must take into account, among other things, any applicable minimum standards set for ambient air and point-source emissions, the pollution being or likely to be caused by the activity applied for, and the effect or likely effect of that pollution on the environment, including health, social conditions, economic conditions, cultural heritage and ambient air quality. The municipality must also consider the best practicable environmental option that could be taken to prevent, control, abate or mitigate pollution and to protect the environment from harm as a result of air pollution as well as any relevant tradable emission scheme.Footnote 93 In this way, municipalities have a very explicit role to play in mitigating climate impacts by directly controlling who can emit what.

National Environmental Management: Biodiversity Act

Climate change and other anthropogenic causes of the impact on biodiversity of the depletion of resources are undisputed.Footnote 94 In South Africa, the National Environmental Management: Biodiversity Act 10 of 2004 (Biodiversity Act) provides comprehensive protection for biodiversity resources and indirectly also protects biodiversity from the effects of climate change. For example, section 43 enables a municipality, in consultation with the minister of environmental affairs, to draft a biodiversity management plan (BMP), after which the minister may enter into a biodiversity management agreement with the local authority to implement the BMP.Footnote 95 A BMP must aim to ensure the long-term natural survival of the species or ecosystem to which the plan relates.Footnote 96 While no specific requirements regarding the content of this sector plan are further prescribed, it must be consistent with, inter alia: the NEMA principles; any relevant international agreements binding on South Africa, which presumably could include biodiversity and climate-related instruments (especially those aimed at reducing ecosystem vulnerability);Footnote 97 and a municipality's IDP. These provisions are complemented by sections 52–54 of the act, which determine that listed threatened ecosystems or ecosystems in need of protection must be considered in municipalities' IDPs. A BMP is a useful planning instrument which municipalities could use to provide for, and more importantly to integrate, strategies aimed at strengthening adaptive capacity with respect to biodiversity at the local level. Moreover, a BMP enables municipalities to take on regulation with respect to biodiversity and the vulnerability of ecosystems caused by climate change, despite biodiversity not being listed as one of the constitutional functional governing areas of local government.

National Environmental Management: Protected Areas Act

There is a close link between protected areas and biodiversity and the two are generally considered related issues. The National Environmental Management: Protected Areas Act 57 of 2003 (PAA) is thus also applicable to biodiversity conservation. The act deals, inter alia, with the management of and designation of management authorities for protected areas, which could include municipalities.Footnote 98 Once designated, a municipality must compile a management plan for the area, which must also take into account applicable aspects of the IDP of the municipality in which the protected area is situated. A municipality has wide discretion so far as the content and design of the plan are concerned, but at a minimum must ensure the protection, conservation and management of the protected area.Footnote 99 This planning instrument, albeit an indirect mechanism, is another example of municipalities being enabled in terms of national law to devise local mechanisms in response to the localized impacts of climate change on, for example, existing forms of land use, biodiversity and protected areas in the municipality's jurisdiction.

National Environmental Management: Integrated Coastal Management Act

The National Environmental Management: Integrated Coastal Management Act 24 of 2008 (ICMA) establishes a system of integrated coastal and estuarine management, and aims at the preservation and enhancement of coastal public property being held in trust by the state on behalf of all South Africans, including future generations.Footnote 100 Section 12 of the act places a duty on government to “ensure that coastal public property is used, managed, protected, conserved and enhanced in the interests of the whole community”. It continues to state that an authority must “take whatever reasonable legislative and other measures it considers necessary to conserve and protect coastal public property”. This provision is sufficiently general to provide a coastal municipality with the mandate to devise and implement adaptation measures in response to, inter alia, sea-level rise.

The act contains several other provisions that could be relevant to the adaptation measures of coastal municipalities. Section 35 provides for a National Coastal Committee, which must promote integrated coastal management and the integration of coastal management concerns and objectives into, inter alia, local government development policies, plans and strategies and the other plans, programmes and policies of municipalities whose activities may create adverse effects on the coastal environment. The act specifically requires that one or more of the committee's members must be representatives of coastal municipalities. Section 42 further provides for the establishment of municipal coastal committees in every coastal metropolitan and district municipality. These committees have extensive powers that could be directly relevant to local adaptation measures in local coastal areas, including the powers to: promote integrated coastal management; provide expert advice to municipal managers; and promote the integration of coastal management concerns and objectives into a municipality's IDP, SDF and other municipal plans, programmes and policies that affect the coastal environment.

A coastal municipality must also, under sections 48 to 50 of the act, adopt a municipal coastal management programme, either as a separate programme or as part of its IDP and SDF which must be implemented, administered and enforced by means of by-laws. These programmes must, among other things, set out the local coastal management objectives for the coastal zone within the jurisdiction of the municipality and the strategies by which the objectives will be achieved.Footnote 101 These objectives could arguably include issues related to sea level rise and adaptation measures in the coastal zone or generally.

National Environmental Management: Waste Act

The National Environmental Management: Waste Act 59 of 2008 (Waste Act) has little obvious application to local climate change response measures. Its provisions on waste recycling and re-use could, however, apply to local landfill gas recovery programmes, for example. The act compels municipalities to adopt local integrated waste management plans which must, inter alia, provide for the implementation of waste minimization, re-use, recycling and recovery targets and initiatives.Footnote 102 Importantly, the local solid waste sector poses many opportunities to mitigate greenhouse gas emissions (through the use of mechanical biological treatment and waste-to-energy systems and combined heat and power technologies) as evidenced by existing local government initiatives.Footnote 103 To this end, the act could usefully be employed to guide municipalities in establishing and managing landfill-related programmes aimed at climate mitigation, including the capturing of methane gas to be used in carbon sequestration, for example.Footnote 104 This view is supported by the Department of Environmental Affairs' Municipal Waste Sector Plan published in March 2012.Footnote 105 The plan states that “awareness about the potential to earn carbon credits through good waste management practices must be raised at municipal level. The Department of Energy as the Designated National Authority for the Clean Development Mechanism (CDM) should provide guidance to municipalities on CDM projects which could earn carbon credits”.

Water Services Act

Everyone in South Africa has a right of access to sufficient water (section 27 of the Constitution) and this right is given statutory effect by the Water Services Act 108 of 1997 (WSA).Footnote 106 In terms of current policy and legislation,Footnote 107 everyone is entitled to 25 litres of water per person per day or six kilolitres per household per month free of charge.Footnote 108 This determination is significant for municipalities because they are South Africa's main water services providers and this quantity and the concomitant water provision obligations on municipalities as water service providers may very well come under severe pressure in the future as the availability of water increasingly becomes affected by climate change. It has been illustrated above that climate change will severely impact on water resources and therefore also on the ability of government to provide people with access to water and related services. Adaptation with respect to access to water must ultimately form part of any municipality's climate change response measures, since municipalities fulfil a crucially important role in water services provision.Footnote 109 The WSA compels municipalities to consider several factors when providing water services, several of which are directly relevant for adapting to reduced access. These factors include: alternative ways of providing access to water services; the need for regional efficiency; the need to achieve benefit of scale; the need for low costs; the requirements of equity; and the availability of resources from neighbouring water services authorities.Footnote 110 These factors are sufficiently flexible and well suited to the purpose of local adaptation mechanisms, and indirectly mandate municipalities to devise measures to facilitate adaptation to limited availability of water for household use and other human needs. These mechanisms could, for example, relate to building desalination works, optimizing water purification works, enhancing irrigation, ensuring more efficient water transportation, creating less water intensive sanitation systems, and providing better cost recovery for water services.

The WSA determines that every municipality must have a detailed water services development planFootnote 111 covering issues related to water services provision.Footnote 112 From a mitigation perspective, it would be possible and important for municipalities to make provision in these plans for measures to: address water losses and consumer demand; promote safe and on-site sanitation; revert to anaerobic digestion technology; explore ozonation technology and treat all water supplied to households to drinking water standards.Footnote 113 Section 21 of the act requires municipalities to have water services by-laws to give effect to their water services strategies. Adaptation and mitigation strategies with respect to water could therefore be strategized in terms of municipal planning instruments and implemented by means of by-laws.

Disaster Management Act

Contemporary forms and methodologies of disaster management are increasingly focusing on the myriad natural disasters resulting from climate change such as floods, sea level rise and droughts. South African law also provides for legal measures to regulate disasters in the form of the Disaster Management Act 57 of 2002 (DMA) which defines a “disaster” as:

“a progressive or sudden, widespread or localised, natural or human-caused occurrence which -

  1. (a) causes or threatens to cause -

    1. (i) death, injury or disease;

    2. (ii) damage to property, infrastructure or the environment; or

    3. (iii) disruption of the life of a community; and

  2. (b) is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources”.Footnote 114

A local disaster is one which “affects a single metropolitan, district or local municipality only; and the municipality concerned ... is able to deal with it effectively”.Footnote 115 Climate change impacts, where they do lead to disasters, comfortably lie under these definitions, which means that the provisions of the DMA may have to be used to manage local disasters triggered by climate change. Section 1 of the DMA defines “disaster management” as:

“... a continuous and integrated multi-sectoral, multi-disciplinary process of planning and implementation of measures aimed at -

  1. (a) preventing or reducing the risk of disasters;

  2. (b) mitigating the severity or consequences of disasters;

  3. (c) emergency preparedness;

  4. (d) a rapid and effective response to disasters; and

  5. (e) post-disaster recovery and rehabilitation”.

Against the background of the meaning of “disaster” and “local disaster” it seems as if municipalities, by forming the first line of defence as it were, have a key role to play locally regarding disaster management, which could also be extended to the climate governance context. Sections 4 and 5 of the DMA provide for an Intergovernmental Committee on Disaster Management and National Disaster Management Advisory Forum, both of which must include representatives from local government. These fora have as their primary objectives to plan for, advise on, integrate and co-ordinate disaster-management strategies. In this way municipalities, aware of local risks and phenomena, could play an important role in prioritizing local disaster management within the ambit of the National Disaster Management Framework as the country's guiding strategy provided for in sections 6 and 7 of the act.

Acknowledging the unique vulnerabilities of local communities in different parts of the country, each metropolitan and district municipality must establish and implement its own local framework for disaster management, aimed at ensuring an integrated and uniform approach to local disaster management.Footnote 116 Any municipality would be well advised to use these frameworks to incorporate measures that would reduce human and ecosystem vulnerability. In addition, sections 43 to 50 provide for the establishment of municipal disaster management centres which, by virtue of section 44, have wide-ranging powers with respect to local disaster management. These powers are sufficiently comprehensive to allow a municipality to include implicit or explicit climate mitigation and adaptation measures (including climate change education and awareness raising) in the functions of these centres. The DMA further provides for the establishment of municipal disaster management advisory fora, and requires municipalities to draft and adopt local disaster management plans.Footnote 117 These plans should once again form part of the municipality's IDP. Cumulatively the DMA's provisions enable municipalities to play an active role in responding to the local impacts of climate change, with a very explicit statutory mandate to intervene in mitigation and adaptation, especially with a view to building and strengthening local resilience.Footnote 118

NATIONAL CLIMATE CHANGE RESPONSE WHITE PAPER (2011)

In addition to the legal position analysed above, the tone of recent high-level national policy confirms and further accentuates that local government has a crucial role to play in South Africa's response to climate change.Footnote 119 The CCR White Paper Footnote 120 is the most authoritative national climate change policy in the country. It provides extensively for various objectives, principles, strategies, measures, programmes and developments towards short and long term mitigation and adaptation. The first objective of the state's response to climate change is to manage the inevitable climate change impacts effectively, through interventions that build and sustain the country's social, economic and environmental resilience and capacity to respond to emergencies. The second is to make a fair contribution to the global effort to stabilize concentrations of greenhouse gases within a timeframe that enables economic, social and environmental development to proceed in a sustainable manner.Footnote 121 The CCR White Paper proposes that government will adopt a phased approach with three time bound planning horizons: the short term (2016); the medium term (2031); and the long term (2050).Footnote 122 The government wants to adopt an integrated strategic approach referred to as “climate change resilient development” customized for the “special needs and circumstances of localities”.Footnote 123 With respect to adaptation it is explicitly declared that “developing more detailed bottom-up approaches informed by the responses of local communities and local government will deliver results with a higher degree of confidence”.Footnote 124

Of particular importance for comprehending the role of municipalities is the notion of integration and alignment, because the CCR White Paper stresses that climate change responses require the integration of sector related responses and the coherent alignment of national, provincial and local plans, laws and policies.Footnote 125 The CCR White Paper furthermore notes that 39 per cent of South Africans live in rural areas, making it imperative to design adaptation programmes that build resilience among the most vulnerable sections of the rural population, and to ensure that disaster management architecture includes the provision of safety nets for these communities.Footnote 126 On the mitigation side, a Renewal Energy Flagship Programme and a Waste Management Flagship Programme are underway.Footnote 127 The latter will typically establish the potential of the waste management sector to mitigate greenhouse gases (falling primarily under the regulatory domain of municipalities), including, but not limited to, investigating waste-to-energy opportunities available within the waste management sectors, especially the generation, capture, conversion and use of methane emissions.Footnote 128 These views confirm that municipalities are, at least at policy level, regarded as key for the strategy which government proposes in order to advance climate-resilient development.

The CCR White Paper is also the first statement of official national policy delineating the roles of the different organs of state and other institutional arrangements with respect to climate change.Footnote 129 As for local government, the CCR White Paper states that it plays a “crucial role” in building climate resilience through: planning human settlements and urban development; the provision of infrastructure and services; the management of water and energy demand; and responses to local disasters, for instance.Footnote 130 The CCR White Paper elaborates that climate change considerations will be integrated into municipal IDPs and municipal service delivery programmes.Footnote 131 It is also encouraging to see that the national government acknowledges the concerns of municipalities in relation to climate governance when it admits that:

“At the same time the mandate for local government to take on various specific climate change-related issues is not always clear, and it may be useful to assign specific powers for mitigation and adaptation actions such as coastal management … some of which fall within the jurisdictions of other spheres of government. A critical review of the policy and legislation relating to local government functions and powers with respect to climate change is required.”Footnote 132

This statement is indicative of the intention and potential to devolve climate governance powers to the local level, which would be in line with the principle of subsidiarity entrenched in the Constitution.Footnote 133 Provision is furthermore made for fiscal measures to support local government, best practice knowledge sharing, as well as incentives for local adaptation and mitigation measures.Footnote 134 However, for now the CCR White Paper is only policy. It remains to be seen whether it will help lay the foundations for a comprehensive, consolidated and, above all, effective climate governance response at the local level.

ASSESSMENT

The following sections assess some of the strengths and weaknesses of the legal and policy framework in which the role of municipalities in South Africa's climate governance effort is delineated.

Strengths

In contrast to the situation in many other countries, local government is acknowledged in the Constitution as an autonomous government sphere with developmental, service delivery and resource protection functions and various original governing powers. It is therefore easier to carve out a self-contained role for municipalities in overarching national mitigation and adaptation response strategies. The CCR White Paper even goes so far as to declare that “[l]ocal government plays a particularly important role in implementing adaptation and mitigation actions, some of which extend beyond the existing Constitutional and legislative mandate of local government” and that “[b]ecause local authorities will plan and implement many of the climate change responses, [climate] predictions need to be at a level that they can use”.Footnote 135

Local government has a definite environmental governance mandate which runs through the Constitution,Footnote 136 local government and environmental laws. There should accordingly be no legal or constitutional obstacles to prevent municipalities from engaging fully in local climate governance efforts, despite there being no explicit law to this effect. In fact, municipalities could usefully employ the enabling provisions in existing law and policy to engage fully in climate governance. Furthermore, national and provincial authorities cannot escape the constitutional duty to support municipalities and, conversely, municipalities should not function as independent actors. This implies that an integrated and coordinated approach should be adopted by all spheres of government, which should allow them to do what they do best, but in a concerted way.Footnote 137

This discussion emphasizes that strategic level planning is a crucial instrument for local government to address climate change and to become involved with climate governance efforts. The principal local planning mechanism that a municipality will use in this respect is the IDP and it is commendable that a comprehensive IDP system is already in place.Footnote 138 This is the most important local planning instrument. The IDP could be an invaluable tool for a municipality's design of short, medium and long term local climate action plans, especially in so far as provision is made for the incorporation of supplementary sector plans such as SDFs and other planning instruments derived from the SEMAs and incidental local government and environmental legislation.

Weaknesses

While it is clear from law and policy that, by virtue of its duties and functions, local government has a role to play in climate governance generally, the role of municipalities in mitigation and adaptation as interrelated yet separate action tracks is not clear. The current law and policy framework is disjointed and patchy at best and there is still no coherent and explicit outline of what municipalities can and should do in the climate governance context. A guideline document and decisive direction from national and provincial government would go a long way towards providing municipalities with much-needed direction in this respect.

Despite the importance of law and policy for regulation, it is not yet certain that law and policy could effectively facilitate climate governance, and that they could provide effective means for properly responding to climate change. While the effectiveness of law and policy in this respect has not been determined in this article, it has been established that law and policy are important normative constructs that mandate and legitimize the entire government's response to climate change. Law and policy also provide the means to govern, as well as legitimizing and determining the parameters of governance. Climate laws and policies will thus arguably be equally important in the climate governance context. Thus considered, national, provincial and local government would be well advised to exercise their legislative and executive powers to create, amend and enforce laws, with a view to comprehensive regulation and to ensuring legal certainty with respect to regulating climate change. Even if no more legislative action is taken in this respect, what should then be ensured is strong coordination to ensure that the multitude of laws and policies, scattered across the legal landscape, are sufficiently complementary, mutually supportive and geared towards common objectives with as few conflicts, overlapping mandates and contradictions as possible.

While an explicit climate change law is probably not the Holy Grail for municipalities' response to climate change,Footnote 139 one must at least consider that its absence may result in downplaying the seriousness of the need for climate governance and action. While the suite of existing laws might be sufficient to direct and enable municipalities' response measures in the short term, it would arguably be preferable to have a comprehensive, explicit and consolidated legal mechanism to deal with climate governance in all spheres of governance, especially in light of the fact that climate change will in all likelihood become more severe in future.

The laws and policies applicable to climate governance in South Africa provide in many respects a voluntary enabling framework that must be “unlocked” by municipalities, as it were. This will require political vision and drive as well as every municipality's commitment to making a difference by actively participating in the climate governance effort of the country as a whole. Despite the existence of such good intentions, the workability of a semi-federation and multi-sphere government such as that of South Africa depends on different factors, including for example suitable structures, clear division of powers and sufficient governing capacity. Governing capacity is a crucial factor and is multidimensional to the extent that it can be divided into political capacity, legislative capacity, administrative capacity, fiscal capacity and intergovernmental capacity.Footnote 140 Even though this article has not surveyed these factors, without them it is unlikely that municipalities would be able to respond to climate change in a manner that is sufficient to ensure sustainable, long-lasting human and ecosystem resilience.

CONCLUSION

This article has attempted to consider a small but highly important part of the greater climate governance effort. The authors have set out to assess from a legal perspective the nature and weight of the role reserved for local government in South Africa's existing law and policy response to climate change. As a point of departure, the article has demonstrated that there is considerable global recognition for the role that municipalities can and should play in addressing climate change, and that climate change law and governance can no longer be regarded as a strictly global issue or mandate with mainly national policy or legal implications. Climate change impacts are global and local, and climate change is as much a sub-national issue as a national one. The article has shown that local government, despite the lack of clear guidelines and consolidated, explicit climate governance provisions and legal mandates, now has, more than ever before, the necessary autonomous powers and a comprehensive set of enabling legal arrangements at its disposal to become actively involved as a fully fledged partner in responding to climate change. Municipalities remain the closest government to the people as well as closest to the effects of climate change. While this cliché is admittedly a tired one, it gains new meaning in the context of local government's ability to achieve results and bring about changes in real terms in the climate change paradigm.

Footnotes

1 Betsill, M and Bulkeley, H “Transnational networks and global environmental governance: The cities for climate protection program” (2004) 48(2) International Studies Quarterly 471 at 477.

2 Richardson, BJ et al. “Introduction: Climate law and developing countries” in Richardson, BJ et al. (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy (2009, Edward Elgar Publishing) 1 at 1.

3 See, among others, Intergovernmental Panel on Climate Change reports, available at: <http://www.ipcc.ch/publications_and_data/publications_and_data.shtml> (last accessed 25 August 2011) and the International Alliance of Research Universities synthesis report “Climate change: Global risks challenges and decisions” (March 2009), available at: <climatecongress.ku.dk/pdf/synthesisreport> (last accessed 25 August 2011).

4 See Our Common Future Conference Summary Report (2011, Volkswagen Stiftung and Stiftung Mercator GmbH) at 80–111, for example.

5 Soltau, FFairness in International Climate Change and Policy (2009, Cambridge University Press) at 21–132.

6 Id at 27 and the UN Framework Convention on Climate Change (UNFCCC) “Database on local coping strategies”, available at: <http://maindb.unfccc.int/public/adaptation/> (last accessed 23 July 2011). For views on the impacts of climate change specifically on cities and urban areas, see UN Habitat Global Report on Human Settlements 2011 Cities and Climate: Policy Directions (abridged ed, 2011, Earthscan) at 20–25.

7 Burnell, PClimate Change and Democratisation: A Complex Relationship (2009, Heinrich Böll Stiftung) at 1–47.

8 Hurrell, A and Kingsbury, B “The international politics of the environment: An introduction” in Hurrell, A and Kingsbury, B (eds) The International Politics of the Environment: Actors, Interests, and Institutions (1992, Clarendon Press) 1 at 9–10.

9 UN Habitat Global Report on Human Settlements, above at note 6 at 8–10, highlights the role of international, national, state / provincial and local decision makers in addressing climate change.

10 South Africa's Climate Change Response Green Paper (2010) (the CCR Green Paper), available at: <http://www.climateresponse.co.za/resources> (last accessed 23 July 2011) at 4.

11 For a list of Annex 1 and non-Annex 1 countries, see UNFCCC “Parties and observers”, available at: <http://unfccc.int/parties_and_observers/items/2704.php> (last accessed 15 June 2011). Non-Annex 1 countries are mostly developing countries.

12 Government of the Republic of South Africa National Climate Change Response White Paper (2011), available at: <http://www.pmg.org.za/node/28739> (last accessed 4 April 2012).

13 See CCR Green Paper, above at note 10 at 4.

14 Rumsey, AB and King, ND “Climate change: Adaptation, and mitigation: Threats and opportunities” in Strydom, H and King, ND (eds) Fuggle and Rabie's Environmental Management in South Africa (2nd ed, 2009, Juta) 1048 at 1048.

15 See “South Africa Millennium Development Goals country report 2010”, available at: <http://www.statssa.gov.za/news_archive/Docs/MDGR_2010.pdf> (last accessed 23 July 2011). See also CCR Green Paper, above at note 10 at 4–5.

16 Date of commencement 4 February 1997.

17 The Constitution, sec 40. The powers, functions, mandates, operational features of, and division of revenue between, national, provincial and local government are discussed in chapters 5, 6, 7 and 13 of the Constitution.

18 See id, sec 153 and sec B, para 1 of the White Paper on Local Government (9 March 1998) (the LG White Paper).

19 CDA Boerdery (Edms) Bpk and Others v the Nelson Mandela Metropolitan Municipality and Others 2007 (4) SA 276 (SCA) at para 37.

20 Steytler, N and De Visser, JLocal Government Law of South Africa (2007, LexisNexis) at 1–23. The objects, powers and functions of local government post-1996 are constitutionally entrenched in secs 152 and 156 of the Constitution. The case of Leon Joseph and Others v City of Johannesburg and Others CCT 43/09 2009 (ZACC) illustrates that the Constitutional Court regards the post-apartheid municipality to be a responsive “caretaker” at the local level.

21 Steytler, N “The strangulation of local government” (2008) 3 Journal of South African Law 518. See sec B of the LG White Paper, above at note 18, for a definition and description of the notion of “developmental local government”.

22 Sec B, para 1.4 of the LG White Paper, id (emphasis added).

23 The first conference of the parties of the UN Framework Convention on Climate Change was held in March 1995 in Berlin, Germany.

24 ICLEI “Local government climate roadmap”, available at: <http://www.iclei.org/index.php?id=1197> (last accessed 15 February 2014). Local authorities' involvement in the 17th conference of the parties resulted in the adoption of the Durban Adaptation Charter for Local Governments on 4 December 2011 on the occasion of the “Durban Local Government Convention: Adapting to a Changing Climate” (on file with the authors).

25 Center for Science in the Earth System (The Climate Impacts Group) Joint Institute for the Study of the Atmosphere and Ocean, University of Washington and King County Preparing for Climate Change: A Guidebook for Local, Regional, and State Governments (2007, The Climate Impacts Group and ICLEI – Local Governments for Sustainability) at 27.

26 Betsill, M and Bulkeley, H “Cities and the multilevel governance of global climate change” (2006)12 Global Governance 141 at 143.

27 UN Earth Summit Agenda 21 adopted at the UN conference on environment and development held in Rio de Janeiro in 1992.

28 Betsill and Bulkeley “Cities and the multilevel governance”, above at note 26 at 143. See also See UN Habitat Global Report on Human Settlements, above at note 6.

29 This view is supported by, inter alia, the progressive approach of organized local government in South Africa and the initiatives that have already been taken at the local level. See South African Local Government Association (SALGA) Local Government Climate Change Discussion Document (2009). The city governments of Cape Town and Durban have for example initiated and continue to drive local climate projects that go far beyond the vaguely formulated objectives for local government in the national CCR White Paper, above at note 12.

30 Wold, C et al. Climate Change and the Law (2010, LexisNexis) at 1–28.

31 See National Treasury Department “Reducing green house gas emissions: The carbon tax option” (discussion paper for public comment, December 2010), available at: <http://www.treasury.gov.za/public%20comments/Discussion%20Paper%20Carbon%20Taxes%2081210.pdf> (last accessed 26 August 2011).

32 Joubert, L “Climate change our most pressing environmental issue” in Zipplies, R (ed) Bending the Curve (2008, Africa Geographic (Pty) Ltd) 40 at 53.

33 Government of the Republic of South Africa “Background information and discussion document to facilitate the climate change policy engagement” (2010) at 4–5.

34 The Constitution, sec 151(3).

35 The scope of local government executive and legislative competence is covered in scheds 4(B) and 5(B) of the Constitution. These exclude additional areas of competence that may in terms of national or provincial law be delegated or assigned to municipalities.

36 Rumsey and King “Climate change”, above at note 14 at 1054–63.

37 UN Habitat Global Report on Human Settlements, above at note 6 at 19–25.

38 Rumsey and King “Climate change”, above at note 14 at 1069–71.

39 Dawson, B and Spannagle, MThe Complete Guide to Climate Change (2009, Routledge) at 278.

40 S Erens, J Verschuuren and K Bastmeijer “Adaptation to climate change to save biodiversity: Lessons learned from African and European experiences” in Richardson et al (eds) Climate Law and Developing Countries, above at note 2, 206 at 207.

41 ICLEI “CCP campaign”, available at: <http://www.iclei-europe.org/ccp> (last accessed 15 February 2014).

42 See ibid.

43 See also UN Habitat Global Report on Human Settlements, above at note 6 at 26–34.

44 Burnell Climate Change and Democratisation, above at note 7 at 10.

45 See J Lin “Supporting adaptation in developing countries at the national and global level” in Richardson et al (eds) Climate Law and Developing Countries, above at note 2, 127 at 128.

46 See, for example, Erens, Verschuuren and Bastmeijer “Adaptation to climate change”, above at note 40 at 207.

47 Dawson, B and Spannagle, MThe Complete Guide to Climate Change (2009, Routledge) at 2–3.

48 Burnell Climate Change and Democratisation, above at note 7 at 1–47, devotes an entire enquiry to showing how, inter alia, resource-based conflicts and political instability in young African democracies can surface as a consequence of climate change.

49 Including, for example, disasters and their impact on housing, access to water and public and environmental health.

50 Steytler, N and De Visser, JLocal Government Law of South Africa (2007, LexisNexis) at 1-3 – 1-22.

51 For a recent and insightful discussion on environmental constitutionalism in South Africa and several other jurisdictions, see Boyd, DRThe Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment (2011, UBC Press).

52 du Plessis, AAFulfilment of South Africa's Constitutional Environmental Right in the Local Government Sphere (2009, Wolf Legal Publishers) at 239–54.

53 See, for example, Fuel Retailers Association of Southern Africa v Director General Environmental Management, Department of Agriculture, Conservation and Environment Mpumalanga Province 2007 10 BLCR 1059 (CC) and, further, Kotzé, LJ “The judiciary, the environmental right and the quest for sustainability in South Africa: A critical reflection” 2007 Reciel 298.

54 The Constitution, sec 24(b)(i) – (iii).

55 See Beyerlin, U and Marauhn, TInternational Environmental Law (2011, Hart Publishing) at 159–71.

56 The Constitution, scheds 4(B) and 5(B); see discussion below. See also id, secs 27, 152 and 153.

57 Importantly, it is also only with respect to local government that sec 24 is repeated in the Constitution, with sec 152(1)(d) stating that one of the objects of local government is to “promote a safe and healthy environment”.

58 Du Plessis, AA “South Africa's environmental right generously interpreted: A focus on the role of poverty” 2011 (27) SA Journal of Human Rights (SAJHR) 279.

59 The Constitution, secs 9–11 and 27(1)(b).

60 See, for example, Mazibuko v The City of Johannesburg 2010 (3) BCLR 239 (CC), Beja v Premier of the Western Cape 2011 (10) BCLR 1077 (WCC) and Joseph v City of Johannesburg 2010 (4) SA 55 (CC).

61 The Constitution, sec 152. See further Steytler, N and Fessha, YT “Defining local government powers and functions” (2007) 124(2) South African Law Journal 320.

62 Id, sec 153(a).

63 Id, sec 156.

64 As listed in id, scheds 4(B) and 5(B).

65 See De Visser, J “Institutional subsidiarity in the South African Constitution” (2010) 1 Stellenbosch Law Review 90.

66 See scheds 4(A) and 5(A) of the Constitution.

67 See, for example, Maccsand (Pty) Ltd v City of Cape Town and Others 2011 (6) SA 633 (SCA), City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (9) BCLR 859 (CC), Lagoon Bay Lifestyle Estate (Pty) Ltd v Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape and Others [2011] 4 All SA 270 (WCC) and Louw v Swartland Municipality (650/2010) [2011] ZASCA 142 (23 September 2011).

68 Systems Act, secs 73(2)(d) and 4(2)(d).

69 Id, sec 4(2)(i) and (j) read with sec 23(1).

70 Id, sec 23(1) and chap 5.

71 Id, sec 26, sec 15(2) of the National Environmental Management: Air Quality Act 39 of 2004 and sec 48 of the National Environmental Management: Biodiversity Act 10 of 2004.

72 SALGA Local Government Climate Change, above at note 29 at 49.

73 NEMA, sec 2(1)(a).

74 Id, sec 2(1)(e).

75 Id, secs 2(1)(e)(vii)–(viii).

76 Id, sec 2(4)(b).

77 The “best practicable environmental option” is defined by id, sec 1, as “the option that provides the most benefit or causes the least damage to the environment as a whole, at a cost acceptable to society, in the long term as well as in the short term”.

78 Id, sec 2(4)(c).

79 Adopted in Kyoto, Japan, on 11 December 1997 and entered into force on 16 February 2005.

80 See NEMA, chap 6 and the Constitution, secs 231–33.

81 South Africa follows a partly dualist approach to the incorporation of international law in its jurisdiction.

82 See, for example, “Climate action goes local”, available at: <http://thinkprogress.org/romm/2010/09/15/206730/iclei-think-globally-act-locally-climatel/> (last accessed 22 September 2011).

83 NEMA, secs 11–16.

84 Id, sec 12(1)(a).

85 Id, sec 35(1).

86 Id, sec 35(3)(a).

87 See generally, Rosenau, JN and Czempiel, E (eds) Governance Without Government: Order and Change in World Politics (1992, Cambridge University Press).

88 The Constitution, sec 156.

89 NEMA, sec 46.

90 AQA, sec 2(a)(i).

91 Id, sec 16.

92 See id, secs 36–49.

93 Id, sec 39.

94 Birnie, P, Boyle, A and Redgwell, CInternational Law and the Environment (2009, Oxford University Press) at 583–84.

95 Biodiversity Act, sec 44.

96 Id, sec 45.

97 For example: the Convention on Biological Diversity, 1992; the Convention for the Protection of the World Cultural and Natural Heritage, 1972; the Convention on the Conservation of Migratory Species of Wild Animals, 1979; and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 1973.

98 PAA, sec 38(1)(a).

99 Id, sec 41.

100 ICMA, sec 2(c).

101 Id, sec 49.

102 Waste, Act, sec 12.

103 See Academy of Science of South Africa Towards a Low Carbon City: Focus on Durban (2011, ASSAF) at 111–12.

104 See id at 112.

105 Department of Environmental Affairs “Municipal waste sector plan” (government notice 270) (30 March 2012) Government Gazette 35206. In the notice the minister expressly states that the plan must be implemented immediately.

106 Kotzé, LJ “Phiri, the plight of the poor and the perils of climate change: Time to rethink environmental and socio-economic rights in South Africa?” (2010) 2(1) Journal of Human Rights and the Environment 135.

107 Reg 3 in GN R 509, Government Gazette of 8 June 2001, read with the WSA.

108 This was recently confirmed by the Constitutional Court in Mazibuko v City of Johannesburg (2009) JDR 1030 (CC).

109 WSA, secs 11–21.

110 Id, sec 11(3).

111 Id, sec 12.

112 Id, sec 13.

113 Academy of Science of South Africa Towards a Low Carbon City, above at note 103 at 109–10.

114 DMA, sec 1.

115 Id, sec 23(4).

116 Id, sec 42(1).

117 Id, secs 51–53.

118 Academy of Science of South Africa Towards a Low Carbon City, above at note 103 at 117–28.

119 The background of the political and policy developments which in recent years have put climate change on the national agenda in South Africa is discussed in more detail in id at 63–77.

120 Above at note 12.

121 Id at 11.

122 Id at 12.

123 Id at 11–12 and 15.

124 Id at 15.

125 Id at 13.

126 Id at 22.

127 Id at 31–32. Both programmes make provision for the direct involvement of local government.

128 Id at 32.

129 See B Never “Who drives change? Comparing the evolution of domestic climate governance in India and South Africa” (German Institute of Global and Area Studies working paper 174) (2011) at 5.

130 CCR White Paper, above at note 12 at 97.

131 Footnote Ibid.

132 Footnote Ibid.

133 See the Constitution, secs 156(4)(a)–(b).

134 CCR White Paper, above at note 12 at 36–37.

135 Id at 39 and 46.

136 Chaps 2 and 7.

137 This should be done in line with the provisions on co-operative governance. See the Constitution and the Intergovernmental Relations Framework Act 13 of 2005, sec 41.

138 The Systems Act, chap 5.

139 Similar to the UK Climate Change Act of 2008, for example. For a discussion of the legal implications of this act, see Macrory, R “The UK Climate Change Act - Towards a brave new legal world?” in Backer, IL et al. (eds) Pro Natura (2012, Universiteitsforlaget) 306.

140 See Simeon, R and Murray, C “Multi-sphere governance in South Africa: An interim assessment” (2001) 31(4) Publius 65 at 66–67.

Ibid
Ibid