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The Heat is On: Local Government and Climate Resilient Development in South Africa. Prof. Anél du Plessis NMMU – November 2012 Faculty of Law North-West University, Potchefstroom [email protected] Outline. Climate change – does it matter whether it matters?

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the heat is on local government and climate resilient development in south africa

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

Prof. Anél du Plessis

NMMU – November 2012

Faculty of Law North-West University, Potchefstroom

[email protected]

  • Climate change – does it matter whether it matters?
  • Meaning of climate change concepts from a law, policy and governance perspective
  • Where is South African policy heading?
  • “Local” government and climate change as a “global” agenda item
    • Some of the links
    • Some of the complexities
  • Applicable SA law framework
  • Status quo in local government
  • Conclusion
does it matter whether climate change matters

Calls in literature that the world stops questioning as a matter of principle the “existence” and “causes” of climate change but instead invests energy and money in the visible occurring changes in our environments and in scientifically sound modelling and projections on the changes to come.

Does it matter whether climate change matters?
  • Environmental change visible world-wide
  • Some scepticism and questions about its causes across scientific disciplines and sectors
  • Questions about the scientific methodologies used to generate knowledge about climate change
  • Mixed messages from slow-to-react governments (e.g. Australia, Canada, USA)
  • Yet, visible signs in many parts of the world of climatic related change and resultant impacts on ecosystem services, resource availability etc and, as a result, on people

The world needs to look forward: whether or not “climate change” exists – we need to deal with unsustainable life on earth.

Attempts to address “climate change” must be seen as attempts to fast-track the journey towards sustainable development.


Meaning of the concepts

Adjustments and reactions in natural or human systems in response to actual or expected climatic stimuli and their effects

(Lin, J 2009)

Requisite threshold: “limiting the human causes of climate change as much and as soon as possible” (Erens S et al 2009)

Monitoring and assessment of measures to reduce GHG emissions




national policy direction in sa
National policy direction in SA
  • SA is Non-Annex 1 country; non-binding obligations
  • Part of BASIC / G4 countries – emerging geopolitical alliance
  • White Paper on Climate Change, 2011
  • Focuses on “climate resilient development”:

Effective management of inevitable climate change impacts through interventions that build and sustain SA’s social, economic and environmental resilience and capacity to respond

  • Categorising responses as ‘adaptation’ or ‘mitigation’ obscures real and potential combined impact of responses – “integrated strategic approach” (integration & alignment)
2011 white paper cc considerations to be integrated in idps and service delivery programmes
2011 White Paper: CC considerations to be integrated in IDPs and service delivery programmes

Schedule 4B and 5B of the Constitution – items relevant for CC – speak to ‘subsidiarity’

Localised impacts of climate change

“Developmental local government” vis-a-vis“service delivery arm of government”

International directions: ICLEI CCCP Programme etc.

Municipalities have legislative and executive powers – enable localised responses

Role of LG in responding to climate change widely recognised internationally (UN, UNFCCC, COP 1 + etc) – but not well-defined!

development opportunities for lg
Development opportunities for LG
  • Addressing climate change need not stifle economic growth; several opportunities for municipalities:
    • Building a green economy locally
      • Couple imperatives of economic development with low carbon pathways
      • Financial benefits from improved energy efficiency
      • More business opportunities
      • Creating more jobs etc.
    • Attract more investment as environmentally responsible ‘leaders’
    • Overall economic benefits e.g. urban projects for CDM credits
the complexity factor
The “Complexity” factor
  • One thing to acknowledge and call for role of LG in addressing climate change; another to define it and make it operational
  • Known complexities:
    • Many municipalities find themselves vulnerable and unstable in relation to governance difficulties rather than resilient
    • Several pockets of good practice and successful progress – yet several municipalities cannot fulfil constitutionally entrenched targets
    • Rural / urban divide within “local government” complicates consolidated approaches
the complexity factor1
The “Complexity” factor
  • Growing number of (often unfunded) LG mandates, functions and duties
  • Costs & funding
  • Politics in local government – vision “4” and vision “voters”
  • Legislative and structural fragmentation and inefficiency within individual municipalities – working in silos
the complexity factor2
The “Complexity” factor
  • Complexities may easily degenerate vision and drive with respect to CC and LG:
    • As governor
    • As governed
    • As responsible for internal governance
  • Mentioned and other complexities are “real” in SA and must be seen in perspective and to have impact
  • Yet, focus of this presentation is not to be side-tracked by these complexities (for the moment), but to ask in a very specific way and considering the meaning of “climate resilient development” ....

To what extent is it (normatively speaking), possible for municipalities to contribute to ‘climate resilient development’ through the existing legal framework?

status quo in law
Status Quo in law

Environmental Law

Local Government Law


Ss 24, 27


Ch 7


Systems Act

Sectoral & other e-laws

Other LG laws

environmental law in summary
Environmental law in summary
  • ‘Framework’ law:
    • Constitutional mandate to respond b.m.o positive action to impacts and change affecting human health and well-being – s 24 read with rights to life, human dignity, equality etc.
    • S 24 echoed in s 153(c) – municipalities must respond to basic needs of people while promoting social and economic development
    • Environmentally relevant powers of municipalities: air pollution, building regulations, municipal planning, storm-water management, water and sanitation, control of public nuisances etc.
environmental law in summary1
Environmental law in summary
  • ‘Framework’ law:
    • NEMA
      • National environmental management principles applicable to all ‘organs of state’
        • Precautionary principle
        • Preventive principle
        • BPEO
        • Environmental justice
        • Discharge of global and international environmental responsibilities in national interest
      • EMCAs e.g. energy efficiency, recycling and reuse of waste, green building etc.
      • Cooperative environmental government structures
      • Etc.
environmental law in summary2
Environmental law in summary
  • Specific and sector environmental laws:
    • No ‘climate change law’
    • SEMAs etc on biodiversity, protected areas, waste management, coastal zone management, air quality & disaster management
      • Powers inherent to natural resources in ‘public trust’
      • Municipalities have licensing powers e.g air quality (“implement SA’s obligations in respect of international agreements”)
environmental law in summary3
Environmental law in summary
  • Municipalities may devise / participate in:
    • strategic plans e.g. biodiversity management plan, water services development plan, protected area management plan etc.
    • spatial plans and schemes
    • programmes e.g. coastal management programmes
    • frameworks e.g. disaster management frameworks
    • intergovernmental structures e.g. national disaster management advisory forum
local government law in summary
Local government law in summary
  • Constitutional objectives and powers aimed at ‘development’ vis-a-vis mere service delivery
  • Mandate to provide ‘environmentally sustainable services’ defined as to mean inter aliathat risk of harm to environment and to human health and safety must be minimised to the extent reasonably possible (Systems Act, s 1)
  • Short, medium and long term strategic ‘development oriented planning’ – IDPs with SDFs and sector plans
    • SALGA aims at mainstreaming climate change in LG via IDPs – new sector plan coming?
provisions and instruments in law and relevant for climate resilient development
Provisions and instruments in law and relevant for climate resilient development:

Mandatory & voluntary planning

(strategic, spatial and other types of planning)

Programmes allowing for innovation

Strategic frameworks

Discretionary / compulsory institutional set-up in & involving municipalities

what has thus far developed with what we ve got in sa law
What has thus far developed with what we’ve got in SA law?

Case: eThekwini

  • - Several climate change policies, projects, plans and programmes since 2000 wrt mitigation and adaptation
  • First GHG inventory completed in 2006
  • Municipal Climate Protection Programme established in 2004 to integrate CC issues into all aspects of the municipality’s work


  • - Headline Adaptation Strategy - highlighting some key interventions required for adaptation in areas of human health, water, sanitation, biodiversity, coastal zone, infrastructure, food security and agriculture, strategic planning, LED and disaster management
  • Carbon Storage and Sequestration Analysis
  • Adoption of three sectoral municipal adaptation plans for water, health and disaster management
  • Computer based GIS Urban Integrated Assessment Tool to simulate, evaluate and compare strategic plans and policies to inform future planning


  • - Establishment of “Climate Protection”-Branch in municipality to mainstream climate change into city’s planning and development
  • GIS Computer Model “Sea-level Rise Viewer” to project sea-level rise along the city’s coastline to assist with “Shoreline Management Plans” and “Municipal Adaptation Plans”
  • 2011 – first “South Durban Shoreline Management Plan” – a guiding framework to respond to the potential effects of seawater inundation
  • First on African continent: Clean Development Project (CDM project): “Durban Landfill-gas-to-electricity”-project – collection of gas, use of recovered gas to produce electricity for municipal grid

Several climate change related developments also in the cities of Johannesburg , Cape Town etc!

< Mostly programmatic developments>

  • Climate change / change in the environment at unprecedented rate has international arena devising new policies and legal instruments
  • It is happening with SA on board
  • Implications for municipalities arise from:
    • Climate / environmental change per se
    • State authorities’ response b.m.o, inter alia, international law and policy
    • Fact that municipalities may / must respond and ensure compliance through the use of its own executive and legislative powers
  • View: getting ‘sustainability’-thinking and action
  • and ‘developmental local government’
  • right at local level may go long way towards ‘climate resilient development’
  • SA’s national law and policy makers should avoid further ‘strangulation of local government’
  • Entire government must work towards integration and alignment
  • Existing laws do provide an enabling framework & adequate flexibility for addressing CC – several municipalities serve as example!