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Sizwe sama Yende reports that the Centre for Environmental Rights (CER) has explored way for global warming litigation in South African law

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Two years may have lapsed, but in Nomandla Nqanula’s mind, the trail of damage and ruins left from choppy waters of a stream near her house are still fresh.

Nqanula is still shedding tears as she recalls how she lost her house, land and general happiness about life at Quarry Road informal settlement near Durban, KwaZulu-Natal, after a torrent of rain caused unprecedented flooding in the area 2022.

“The stream was very small when we bought our house, and I never thought I would lose it and the land,” Nqanula said.

As fate would have it, Nqanula’s house was washed away by the floods, which did not only affect her and her Quarry Road neighbours, but many people in KZN. 

Statistics indicate that 443 people died and 48 are still missing as their bodies were not recovered. Along the floods’ trail of destruction, 26 000 houses, 600 schools and 84 health facilities were razed.

The damage left the government with a hefty R10 billion bill to repair transportation, communication, water and electrical infrastructure while various sectors recorded major losses - manufacturing (R431m), agriculture (R12.6m), construction (R18m), wholesale and retail (R46m), and warehousing and logistics (R33m).

Nqanula said she first lost her house in floods in 2019. Her family packed up to re-settle on the other side of the stream at Quarry Road and little did they know that the same disaster would befall them again three years later.

“The day of the floods was hectic and traumatic. I don’t think I’ll ever heal. Losing a house took away my dignity, and I lost my voice in the community. When you don’t have a house you are not expected to have an opinion. My happiness and everything I had is gone,” she said.

Nqanula added that the change oof weather – when clouds turn gloomy and give a warning of imminent rainfall – drives panic in her and her neighbours. “Those staying close to the river pack and go to safer areas,” she said.

AVENUE TO SUE FOSSIL FUEL COMPANIES

There is, however, a glimmer of hope for people like Nqanula who are victims of climate-change related disasters.

According to the Centre for Environmental Rights (CER), the affected KwaZulu-Natal communities can sue for damages but it will not be an easy task.

Michelle Sithole, an attorney at CER, told The People’s Eye this week that an avenue for damages claim against climate-changing fossil fuel companies did exist in the South African law.

“Theoretically speaking, yes affected communities in KZN can bring a claim, the avenue to do so does exist. However, practically speaking we are a long way from doing that, bringing a claim would require a lot of evidence gathering and extensive research, as stated in the report,” Sithole said.

She is the co-author of CER’s recently-released report, The Polluter Pays for Climate Change Loss and Damage.

The authors used the KZN case and sought to explore whether South African law allowed for claims for climate loss and damage to be brought in court.

The KZN floods were, undoubtedly, caused by climate change factors, according to scientists.

Sithole said that in the KZN case, a class action could be suitable. “Speaking, still, from a strictly theoretical perspective, as this would need to be assessed on a case by case basis. I would say that given the scale of climate-linked disasters and the size of potential classes of affected individuals, a class action maybe a suitable route in light of its advantages, which include making justice accessible for a large group of affected individuals, with limited means and whose claims may not be big enough to justify approaching a court on an individual basis,” she said.

TARGET POLLUTING COMPANIES

Sithole said that the starting point on pursuing a lawsuit would be to target carbon majors (the biggest polluters) who were responsible for 63% of global carbon dioxide and methane emissions.

“Climate impacts are the result of the cumulative carbon dioxide and methane emissions from carbon majors, you cannot say that there is one carbon major responsible for climate linked disasters. Bringing a case against a carbon major would require extensive research and evidence gathering. It’s hard to say but the starting point would be to look at the carbon majors,” Sithole said.

She said that if those carbon majors were state-owned, it would be a challenge to sue them because courts may decline to adjudicate a matter which related to the alleged unlawful conduct of a foreign state.

“That then narrows down your search to privately owned carbon majors, but this isn’t where the inquiry or research ends. Like I said, bringing a case like this requires extensive research and there are other steps from a legal procedural perspective that will equally play an important role in identifying a carbon major or carbon majors to sue,” she added.

Brendon Abdinar, another co-author, said that reparations in climate change could not only be achieved through litigation. The could be other measures to ensure that victims were paid.

“Another way could be ring-fencing carbon taxes to pay towards loss and damages of climate change. US states impose levies on fossil-fuel companies to create a superfund to be used for loss and damages,” Abdinar said.

SHRINKING GDPS

Over and above individuals and communities, global warming has also been shrinking the Gross Domestic Products (GDPs) of poor countries in Africa, even though they contributed less to greenhouse gas emissions.  

Higher temparatures, above preindustrial levels all over the world, have caused extensive heatwaves, droughts and other weather extremes that have affected economic growth.

A University of Delaware report - The Loss and Damage Today: The Uneven Effects of Climate Change on Global GDP and Capital – found that the unweighted percentage of global GDP lost is estimated at 1.8%, or about $1.5 trillion in 2022.

Low- and middle-income countries experienced $2.1 trillion in produced capital losses due to climate change. African nations have experienced an average loss of 8.1% in GDP in 2022. The most severely affected region was South-East Asia, which had suffered an average loss of 14.1% of GDP.