South Africa has a leg to stand on as far as pursuing a legal claim for the 2022 KwaZulu-Natal floods, a report by the Centre for Environmental Rights (CER) launched on Wednesday has found.

Titled “Polluter Pays for Climate Change Loss and Damage”, the report finds that with the cause attributable to the climate crisis and South Africa being a signatory to the Rio Declaration where the ‘polluter pays’ principle was adopted, there may be grounds for a case. The principle stems from environmental law and demands pollution perpetrators take responsibility for the costs of managing the pollution to repair or prevent harm from the contamination.

The devastating floods, which killed more than 400 people, displaced thousands and caused billions worth of infrastructure damage, were found to be the worst to have taken place in the province ever. The death, displacement and damage were also coupled with trauma, loss of livelihoods and severely disrupted lives.

Read more in Daily Maverick: A Perfect Storm: How the deadly 2022 Durban floods hold crucial lessons for the future of the city and others like it

“We are seeing how the state is having to foot much of the bill for loss and damage from the Durban flood and other similar events. Many vulnerable people and communities have their lives devastated, with no avenue for compensation. This report is intended to join the dots between harmful emissions and impacts on the ground, and it is promising that our legal system is potentially able to facilitate claims for climate loss and damage,” said Michelle Sithole, Candidate Attorney at CER in a statement.

Polluters are what a supporting report referenced in the CER finds refers to as ‘carbon majors’. These are private and state-owned entities that are responsible for around 60% of carbon and methane emissions — these mainly consist of the fossil fuel and cement industries. In this instance, the report pointed mainly towards the fossil fuel industry.

Shacks washed away at the informal settlement between M19 and Quarry road on 12 April, 2022 in Durban, South Africa. (Photo: Gallo Images / Darren Stewart)

Currently, there are 60 cases against carbon majors around the world. Most of these cases have been in the United States, none consisting of African claimants against carbon majors — neither in African nor foreign courts.

“In bringing a claim against a foreign carbon major, which did most of its polluting beyond South Africa’s borders, a South African court will have to determine whether the substantive issues of law must be decided in terms of South African law or the relevant foreign law.

“…Leading academics suggest that in cases of uncertainty, the place where the wrongful act was committed ought to be determined by the ‘place of damage’, where the harms and losses giving rise to the claim were suffered. Therefore, a strong argument can be made that victims of the 2022 KZN floods ought to be allowed to rely on South African law to determine the issue of any claims against foreign carbon majors,” the report found, adding the claim for damages could be made through the law of delict.

Brandon Abdinor, Climate Advocacy Lawyer at CER told Daily Maverick that the law of delict is used to prove that there has been wrongdoing and negligence.

“If for example, a flood victim wanted to sue one of the fossil fuel companies, they would have to choose who they want to sue. One of the challenges of cases like this is jurisdiction, so you would need to sue the head office in order to get accountability from the whole group’s emissions around the world. You would then look at the jurisdiction to see if you could institute a claim like that in South Africa.

An aerial image of a broken section of the Griffiths Mxenge Highway next to Umlazi after floods wreaked havoc in Durban. (Photo: Shiraaz Mohamed)

“Then you would construct a legal argument to say that they knew what they were doing from internal science from decades back, so that they can’t claim ignorance or shift responsibility to the end user; adding the disinformation, greenwashing and sending of lobbyists to the COP (Congress of the Parties) talks. You would use all this to say this was an outfit that knew what they were doing but continued. Attribution science would then be used to highlight their share of global warming and how that caused the rain in KZN to intensify by 8% and the impact the floods had on people and their livelihoods etc,” said Abdinor.

A similar case is unfolding in the US where the State of Minnesota brought a claim against the American Petroleum Institute and others. The state claims that the Institute had caused climate crisis harm by misleading the public and minimising the threat posed by the climate crisis. The state is seeking compensation for climate crisis-linked loss and damage, including the cost of building resilient infrastructure for future climate events.

Abdinor said cases like these seek a high level of organisation across different entities, alongside financial backing. He added that parts of the African continent had not yet reached that level of organisation, so it would take time before cases like these would start to trickle in.

Abdinor added, “The idea of the report is to plant seeds in academia, civil society and within community groupings — as well as to let the fossil fuel industry know that we’re watching and keeping score and that it’s just  a question of time before they are held accountable”. DM