Government’s green crackdown – with fines up to R10 million

South Africa’s Climate Change Act aims to set the country on the right trajectory for combating climate change and imposes strict penalties for non-compliance.

On 23 July 2024, President Cyril Ramaphosa signed the Climate Change Bill,  which sets out a national climate change response, including mitigation and adaptation actions.

The government explained that this legislation enables aligning policies that influence South Africa’s climate change response.

It further wants to ensure the country’s transition to a low-carbon and climate-resilient economy and society’s freedom from policy contradictions.

“The law also sets out to enhance South Africa’s ability and capacity over time to reduce greenhouse gas emissions and build climate resilience while reducing the risk of job losses and promoting opportunities for new job opportunities in the emerging green economy,” it said.

“The Act aims to strengthen coordination between national sector departments and provide policy setting and decision-making to enable South Africa to meet the commitments in Nationally Determined Contribution (NDC) under the Paris Agreement.”

Herbert Smith Freehills’ ESG director, Ernst Muller, said South Africa’s Climate Change Act establishes a robust legal framework to address the challenges posed by climate change. 

The legislation mandates a comprehensive and coordinated national response, emphasising both mitigation and adaptation measures.

The Act imposes different duties on different categories of government stakeholders, including organs of state.

Under the Act, they are required to revise, amend, coordinate, and harmonise their policies, laws, measures, programmes, and decisions to ensure that the risks of climate change impacts are considered.

MECs and mayors of metropolitan or district municipalities must undertake climate change needs and response assessments for their provinces and municipalities.

They must also develop, implement and publish climate change response implementation plans. The assessments must be repeated every five years, and the related plans reviewed and amended on the same cadence.

The Minister of Forestry, Fisheries, and the Environment and other cabinet members are required to develop and publish a National Adaptation Strategy and Plan and Sector Adaptation Strategies and Plans, respectively. 

“These strategies and plans should seek to reduce the vulnerability of society, the economy, specific sectors and the environment to the effects of climate change,” he said.

“It also strengthens the resilience of the socio-economic and environmental system and enhances the adaptive capacity of society, the environment, specific sectors and the economy to the impacts of climate change.”

The Act centres around the establishment of a national greenhouse gas (GHG) emissions reduction trajectory that aligns with international commitments. 

He said this trajectory will guide the development of sector-specific emissions targets, ensuring a phased reduction in GHG output. 

The Act introduces a carbon budgeting system, requiring large emitters to develop and implement mitigation plans to monitor and manage emissions effectively.

Recognising the diverse impacts of climate change, the Act places significant emphasis on adaptation. 

It necessitates climate change assessments and response plans at provincial and local government levels. 

In addition, national and sectoral adaptation strategies will be developed to build resilience and reduce vulnerabilities across society and the economy.

The Act requires the Environment Minister to identify GHG-emitting sectors and subsectors and determine a prescribed framework and sectoral emissions targets for them.

These sectors and sub-sectors must then appropriately reflect the national GHG emissions profile.

Muller explained that these emissions targets must be aligned with the national GHG emissions trajectory. They should also include quantitative and qualitative GHG emission reduction goals for the first five years, the subsequent five to ten years, and for a 10 to 15-year period thereafter. 

These emissions targets must be reviewed and, where necessary, revised and amended every five years.

The Act outlines penalties for non-compliance and provides a mechanism for appealing decisions to ensure accountability and enforcement. 

Section 35 of the Act sets out the circumstances under which a person would commit an offence.  

Key examples include failing to provide false data, information, documents, samples, or materials to the Minister or failing to prepare and submit a greenhouse gas mitigation plan. 

A person convicted of an offence is liable to a fine not exceeding R5 million or to imprisonment for a period not exceeding five years.

In the case of a second or subsequent conviction, offenders could be subject to a fine of up to R10 million or to imprisonment for a period not exceeding ten years.