Climate Litigation: Lessons from South Africa

Cornerstone Climate and Mishcon Purpose present the fourth in our flagship Climate Litigation Lessons from Around the Globe series, which will focus on South Africa. The jurisdiction has been describes as a “microcosm” of the challenges facing the global response to climate change: the country is the largest greenhouse gas emitter on the African continent, with a carbon-intensive economy; but it is also extremely vulnerable to climate change and it still has a deeply unequal society in which both access to energy and a just transition are crucial.

The climate cases in the jurisdiction (which number more than the ten on the Sabin Centre database) include:

• environmental impact assessment cases against new large fossil fuel and other impactful projects;
• challenges based on corporate greenwashing and on shareholder-proposed resolutions on climate change;
• competition cases to stop state-owned fossil fuel power from blocking major renewable energy projects;
• constitutional challenges ranging from infringement of the rights of indigenous communities because of lack of consultation to systemic infringement of the constitutional environmental rights and the rights of children arising from the government’s plans to procure new coal-fired power.

These cases arose in the context of decades of public interest lawyering in South Africa, including the need for strong client organisation, movement building, long-term strategy, and information-sharing.

The session will provide litigation insights from every area of litigation: from the attorney (solicitor) looking to bring cases, to the advocates (barristers) arguing on behalf of applicants (claimants) and amicus curiae (intervenors) to the client organisation looking to address community or issue-specific climate impacts.

Our Speakers

Lazola Kati is the Fossil Ad Ban Co-Ordinator at Fossil Free SA, which is a network of South Africans calling for divestment from fossil fuel companies and restorative reinvestment in sustainable energy. It brought the first successful greenwashing case against a fossil fuel major in South Africa, resulting in the advertising regulator finding TotalEnergies’ sustainability claims “misleading”. Lazola is a specialist and practitioner in the fields of social justice, climate change, and greenwashing campaigns, with over eight years of project management and campaign experience. Lazola has also made significant contributions to projects such as the Anti-Disinformation initiative, a collaborative effort aimed at eradicating disinformation in South Africa during elections, and she was also instrumental in driving the Oceans Not Oil campaign on Change.org, which garnered over 100,000 signatures and halted Shell’s ocean exploration activities in South Africa’s Eastern Cape. Additionally, Lazola spearheaded a commission of inquiry through the Competition Commission of South Africa into data costs. The findings of this research prompted network companies to reduce prices, ensuring that access to the internet is recognized as a fundamental right for all citizens. She holds an undergraduate degree in political and international studies and a postgraduate diploma in international relations, peace and conflict resolution studies, both from Rhodes University.

Wandisa Phama is the Executive Director of the Centre for Environmental Rights (CER), which is a non-profit organisation and law clinic based in Cape Town, defending the right of communities and civil society organisations to an environment not harmful to health or wellbeing for present and future generations. CER has been the instructing attorneys in a number of the main climate cases in South Africa, including Earthlife Africa (the Thabametsi coal-fired power station case); Trustees for the time being of the Groundwork Trust (the Dirty Air case) and African Climate Alliance (the first SA youth justice climate case). Wandisa is a human rights lawyer and social justice activist.  She holds an LLB and LLM in Social Justice from the University of Cape Town. With over a decade of work holding various roles in the Public Interest Law and Social Justice Sector in South Africa, her work has included litigating these climate and environmental cases, as well as for the inclusion of community voices in the formulation of the South African Mining Charter, the protection of the right to social security, holding financial institutions accountable for their role in human rights abuses in projects they finance and defending activists from victimisation and intimidation by the state and private actors. She currently serves on the Board of Ndifuna’Ukwazi, a non-profit advocacy organisation advocating for affordable housing in well-located urban spaces.

Adv Ruth Kruger is an advocate/barrister practicing at Ruth Kruger Thulamela Chambers in Johannesburg. However, she started her career as a sustainability scientist, conducting research with communities in the Northern Cape in South Africa and along the Congo river in the DRC. She studied environmental science at Rhodes University in South Africa and Lund University in Sweden, and spent some time working at the Centre for Environmental Rights in South Africa, and as a visiting scholar at the University of St Andrews in Scotland. She then turned to law, wishing to work in an interdisciplinary matter. Ruth studied law at the University of the Witwatersrand, clerked at the Constitutional Court of South Africa, and then joined the Bar. Her practice is primarily in public law, with a particular focus on environmental law. She appeared for the Amicus Curiae, Vaal Environmental Justice Alliance (instructed by Section 27) in South Africa’s first youth-led climate litigation, African Climate Alliance v Minister of Mineral Resources and Energy, which resulted in an order setting aside the government’s plans for new coal-fired power. She is presently involved in litigation on biodiversity as a relevant public law consideration; on the link between environmental and animal rights and on the climate liability of carbon majors.

Adv Chris McConnachie is a South African advocate at Maisels Chambers in Johannesburg. Chris has a public law and human rights practice, with a focus on climate change and environmental rights.  He was involved in five of the ten climate cases listed on the Sabin Centre’s climate database, including the first (Earthlife Africa); the litigation that stopped two proposed new coal-fired power stations (Khanyisa and KiPower); and he co-argued the groundbreaking youth-led African Climate Alliance case. He is involved in litigation and advisory work covering a range of climate issues, including climate shareholder activism, air pollution controls, renewable energy development, and loss and damage claims.  Before joining the bar, Chris read for the BCL, MPhil, and DPhil at Oxford as a Rhodes Scholar.  He also served as a law clerk at the South African Constitutional Court.