Weather patterns over the past five to ten years indicate that South Africa is increasingly vulnerable to the impacts of climate change. The World Meteorological Organisation (WMO), which is a specialised agency of the United Nations dedicated to international cooperation and coordination on the state and behaviour of the Earth’s atmosphere, its interaction with the land and oceans, the weather and climate it produces, and the resulting distribution of water resources, states that in 2021 the global average temperature was 1,1°C above the pre-industrial baseline (Rachel Russell ‘Climate change: Global temperature could be warmest on record in one of the next five years, Met Office warns’ (https://news.sky.com/, accessed 3-8-2022)). Their latest climate predictions reveal that global temperature will continue to rise with an even chance that one of the years between 2022 and 2026 will reach 1,5°C above pre-industrial levels at the current rate of emissions (WMO ‘WMO update: 50:50 chance of global temperature temporarily reaching 1.5°C threshold in next five years’ (https://public.wmo.int, accessed 4-8-2022)). The WMO further reported that temperatures would continue to rise for as long as greenhouse gases are emitted. The consequence of a higher temperature means that we can expect our oceans to become warmer and more acidic, sea ice and glaciers will continue to melt, sea level will continue to rise, and our weather will become more extreme (WMO (op cit)). More intense, frequent and severe weather events can be expected in the form of high-energy storms, floods and drought (Chris Makhaye ‘KZN flood disaster: “Water was quickly rising and I saw that my house would fall”’ (www.dailymaverick.co.za, accessed 4-8-2022)). KwaZulu-Natal is still recovering from the flash floods during April and May 2022, the biggest natural disaster to strike the country in recent years (Makhaye (op cit)). The flash floods were a catastrophe of unprecedented magnitude.

While the devastation of the recent flash floods was unparalleled, this natural disaster phenomenon is not new to the region. In October 2017, torrential rains and gale-force winds lashed the east coast of SA causing a rainfall explosion of 108 mm over 24 hours. The unrelenting rains left at least eight people dead and caused severe damage across KwaZulu-Natal (Richard Davies ‘South Africa – Storm Leaves 8 Dead, Record Rain in Durban’ (https://floodlist.com, accessed 4-8-2022)). A massive 3 500 tons of plastic were collected when two thousand bags of tiny plastic pellets were lost from a ship’s container in the Durban port during the storm (Lethiwe Mdluli ‘Nurdle beach clean-up efforts paying off’ (www.ecr.co.za, accessed 4-8-2022)). In April 2019, flash floods struck again with a rainfall explosion of 165 mm over 24 hours, the heaviest the city experienced over 24 hours since 30 October 1985 (Wikipedia ‘2019 Durban Easter floods’ (https://en.wikipedia.org, accessed 4-8-2022)). Environmental impacts recorded include raging flood waters, collapsed houses, massive destruction of the natural environment, unprecedented oil, plastic and sewerage pollution of the Durban harbour, beaches and ocean, power outages resulting from electric cable damage, and damage to infrastructure (Desmond D’Sa ‘Durban floods: An open letter to President Cyril Ramaphosa’ (www.dailymaverick.co.za, accessed 4-8-2022)). The most recent deluge measured rainfall of between 200 mm to 400 mm over a 24 hour period on 11 to 12 April 2022, which resulted in drownings, landslides, power outages, water shortages, and flooding of bridges, homes, and businesses (see South African Government ‘National State of Disaster in numbers’ (www.gov.za, accessed 4-8-2022) and Daily Maverick ‘KZN floods: Read these stories about the scale, science and economic impact of the devastation’ (www.dailymaverick.co.za, accessed 4-8-2022)). The explosive impact of the April downpour caused a humanitarian crisis and resulted in the declaration of a national state of disaster in the province (Des Erasmus ‘Ramaphosa calls KZN floods a “catastrophe” as death toll climbs above 300’ (www.dailymaverick.co.za, accessed 4-8-2022)). Six weeks later a further bout of intense rainfall caused more floods measuring a downfall of 240 mm over 24 hours in Mount Edgecombe (Richard Davies ‘South Africa – Evacuations After More Flooding in KwaZulu-Natal’ (https://floodlist.com/, accessed 4-8-2022)). The intensity and frequency of the rainfall are of particular concern. A research consortium of leading scientists, World Weather Attribution, claims that recurring flooding of this nature is a result of global warming (World Weather Attribution ‘Climate change-exacerbated rainfall causing devastating flooding in Eastern South Africa’ (www.worldweatherattribution.org, accessed 4-8-2022)).

The April and May 2022 disasters revealed the country’s lack of preparedness, weak approach to climate adaptation and resilience and poor maintenance and mitigation measures. Approximately 461 fatalities were reported since the May deluge with 23 bodies remaining to be identified, more than 6 000 still homeless and more than 8 000 houses destroyed (Buhle Mbhele ‘KwaZulu-Natal floods death toll rises to 461’ (https://ewn.co.za, accessed 4-8-2022). ‘As in all natural disasters, those who bear the heaviest burden are the poor and vulnerable’ (Dhesigen Naidoo ‘KwaZulu-Natal floods signal climate emergency and urgent need for adaptation measures’ (www.dailymaverick.co.za, accessed 3-8-2022)). Research conducted by World Weather Attribution revealed that indigent and marginalised communities were most affected by the recent floods, particularly informal settlements. The region’s pre-existing structural vulnerabilities worsened the severity of the disaster in these communities. However, it is essential to note that even adaptation objectives designed to protect vulnerable people are undermined by the speed at which climate change appears to be accelerating. Therefore, urgent, and effective measures must be in place as soon as possible.

Durban’s beaches were closed because of high sewerage, chemical and oil pollution from various sources, including a sludge overflow from the SAPREF oil refinery resulting in a long dark oil pollution stain along the beach immediately south of the refinery (Tony Carnie ‘Oh crap! Prolonged closures likely for Durban’s flood-polluted beaches’ (www.dailymaverick.co.za, accessed 8-4-2022)). The UPL South Africa pollution control dam, designed to safely capture toxic and hazardous waste residue from the burnt UPL chemical and pesticide warehouse in Cornubia, Durban, overflowed from the heavy rains. An unspecified quantity of chemically contaminated wastewater was again released into the Ohlanga River and adjacent beaches (Tony Carnie ‘UPL toxic chemical waste leaks on to Durban beaches again in heavy rains’ (www.dailymaverick.co.za, accessed 4-8-2022)). A vast amount of waste and debris from the hinterland found its way into the rivers and ocean and surfaced on the shoreline. Animals were not spared the wrath of the flash flood. Hundreds were found either dead or homeless. Cows, snakes, frogs, dogs, cats, and donkeys were some of the animals impacted by the severe rains (Lisalee Solomons ‘A cow, snakes, dogs and cats are just some of the animals washed away in KZN floods – SPCA’ (www.news24.com, accessed 4-8-2022)). Plant life took a beating with uprooted trees and vegetation washed into the rivers.

The calls for government to take action to address the climate crisis have resulted in the formulation of a Climate Change Bill B9-2022. On 18 February 2022, the Bill was formally introduced to the National Assembly (Centre for Environmental Rights (CER) ‘CER welcomes progress of Climate Bill in Parliament, calls for robust climate law’ (https://cer.org.za, accessed 3-8-2022)). The Bill aims to ensure that SA has the statutory framework to respond to climate change by reducing greenhouse gas emissions and preparing a framework to adapt to the effects of climate change (Centre for Environmental Rights ‘Webinars’ (https://cer.org.za/, accessed 4-8-2022)). Once the Act is legislated, the state must take meaningful action on climate change adaptation and mitigation to ensure an environment that is not harmful to people’s health and well-being. The Act should have adequate incentives, compliance and enforcement provisions with stringent penalties to reach the global net-zero human-caused carbon dioxide emissions by 2050 (according to the Intergovernmental Panel on Climate Change (IPCC), limiting global temperature increases to 1,5°C means that ‘global net human-caused emissions of carbon dioxide (CO2) would need to fall by about 45 percent from 2010 levels by 2030, reaching “net zero” around 2050’ (IPCC ‘Summary for Policymakers of IPCC Special Report on Global Warming of 1.5°C approved by governments’ (www.ipcc.ch, 24-2-2022)).

We need to hasten our response to the climate change crisis by promulgating an adequate legislative framework with effective incentives and rigorous compliance and enforcement implications if we want to curb the impact of further catastrophic natural disasters. According to most experts, curbing greenhouse gas emissions appears to be central to a proper and effective climate response. Other important strategies include reducing our dependence on fossil fuels, curbing excessive consumption, restoring natural ecosystems to promote carbon sequestration, and building a mindful citizenry.

A further important factor in this regard is ensuring a just transition from the fossil fuel dependant approach to energy needs and lifestyles, to a more equitable and climate-friendly approach that places the need to reduce consumption, limit waste and energy requirements, and the creation of meaningful green livelihoods at the centre of climate adaption measures.

The legal profession, particularly, has an important role to play in the climate crisis. The term ‘attorney’ is not just a title – it projects the ethos of a greater duty to society. It is common knowledge that many lawyers have a large carbon footprint. ‘The legal profession must be prepared to play a leading role in maintaining and strengthening the rule of law and supporting responsible, enlightened governance in an era marked by a climate crisis’ says the International Bar Association (IBA) (IBA ‘IBA President: The legal profession must be prepared to play a leading role in climate crisis’ (www.ibanet.org, accessed 4-8-2022)).

‘In 2020, the IBA issued a climate crisis statement setting out actions lawyers could take to combat the emergency. These include engagement with policymaking, advising clients of climate risks and engaging with law schools to educate on legal aspects of the climate crisis and its impact on human rights’ (Katie Kouchakji ‘How the climate crisis is changing the legal profession’ (www.ibanet.org, accessed 3-8-2022)). The IBA resolved, among other things, that lawyers should consider taking a climate conscious approach to problems encountered in daily legal practice, engage with legislative and policymaking efforts to address the crisis by considering a just transition towards carbon neutrality, support the removal of legal barriers to the reduction of carbon emissions, support proactive laws and policies to address future risks to vulnerable populations and encourage sustainable business models.

Perhaps it is time that the professional legal regulatory and governing bodies (the Legal Practice Council, the Law Society of South Africa and other structures) considered adopting concrete measures that would be the impetus for fostering a climate crisis legal mindset to set in motion the changes needed within the profession and society to promote appropriate and structured adaptation behaviour.

Thus, it is only through an integrated and multifaceted strategy that climate adaption measures and significant buy-in from the bulk of SA’s population, that South Africans can hope to attain the global targets required to facilitate and safeguard our and future generations’ safety and sustainability.

Kamini Krishna and Ilan Lax are members of the Law Society of South Africa’s Environmental Affairs Committee.

This article was first published in De Rebus in 2022 (September) DR 6.