Transparency and accountability in the loss and damage debate? A critical analysis of South Africa’s position

 Oliver C Ruppel
 LLB Hons / State Law Exam (Germany); LLM (Stellenbosch); Master of Mediation (Hagen); PGDip Human Rights (Åbo Akademi); Doctor of Laws (Bratislava)
 Professor of Public, Mercantile and International Law, Director, Development and Rule of Law Programme (DROP), Stellenbosch University, South Africa; Director, Research Centre for Climate Law (ClimLaw: Graz), University of Graz, Austria
 https://orcid.org/0000-0003-3362-4285
 This email address is being protected from spambots. You need JavaScript enabled to view it.

 Ruda Murray
 LLB (Stellenbosch); LLM (Cape Town); Doctoral Candidate (Stellenbosch)
 Researcher, Development and Rule of Law Programme (DROP), Stellenbosch University, South Africa
 https://orcid.org/0009-0004-1485-6851
 This email address is being protected from spambots. You need JavaScript enabled to view it.

 Edition: AJCLJ Volume 1 2024
 Pages: 21 -56
 Citation: OC Ruppel & R Murray ‘Transparency and accountability in the loss and damage debate? A critical analysis of South Africa’s position’ (2024) 1 African Journal of Climate Law and Justice 21-56
 https://doi.org/10.29053/ajclj.v1i1.0002
 Download article in PDF

Abstract: The 27th United Nations Climate Change Conference (COP27) in Sharm el-Sheikh, Egypt, in 2022 ended with an agreement to establish a loss and damage (L&D) fund to aid climate-vulnerable developing countries. During COP28, in Dubai, the United Arab Emirates, in 2023, the highly anticipated Loss and Damage Fund was operationalised. Yet, several lingering questions and concerns remained, on the way to COP29. Over the past few years, there has been a deluge of academic research that has greatly improved the general understanding of L&D. Still, few address national responses thereto. These include how national policymakers understand the concept, and what progress has been made to develop and implement L&D policies. As an expected beneficiary of the Loss and Damage Fund, this article, accordingly, critically examines the relationship between South Africa’s national climate change legislation and policy relevant to L&D. This contribution found that South Africa addresses the impacts of climate change through its disaster management framework, albeit with limited policy coherence between the two. Until recently, the concept of L&D has been foreign. Reactive instead of proactive disaster management approaches were favoured, with allocated public funding frequently misplaced. To benefit from the Loss and Damage Fund, measures should be taken to enhance and strengthen government budget tracking, reporting , and verification systems in South Africa.

Key words: climate law; disaster management; loss and damage; UNFCCC

1 Introduction

The 27th United Nations Climate Change Conference (COP27), held in Sharm el-Sheikh, Egypt, in 2022, was described as a ‘breakthrough’, ‘historic’, ‘landmark’, ‘important step’, and ‘milestone’, which ended with an agreement to establish a Loss and Damage Fund to assist climate-vulnerable developing countries.1 During COP28, Dubai, the United Arab Emirates, in 2023, the highly-anticipated fund was operationalised.2 On the occasion, South Africa’s President remarked that the country ‘applauds the landmark decision … and welcomes the pledges that have already been made’, and ‘would like to see the fund growing along with the implementation of all other commitments that have been made thus far’.3

South Africa, however, to this point, for the most part, had remained silent on the topic. This is despite the country having played a key role in advancing the ‘African Agenda’ in continental and international affairs and having also been at the forefront of global efforts to address climate change.4 The only notable, pre-COP28, remark on the subject came in response to the commentary received on the country’s Climate Bill of 2022 (now Act 22 of 2024). Commentators had critiqued South Africa’s climate bills from 2018 to 2022 for, among other issues, failing to provide for loss and damage (L&D) or, at the very least, acknowledge it, to which the Department of Forestry, Fisheries, and the Environment (DFFE) replied that ‘[L&D] issues are dealt with through the Disaster Management Act 57 of 2002 [DMA] where once a disaster happens there is a legal process to respond to the disaster. At current there is no information system agreed upon to deal with and submit [L&D] in the international space.’5

In contrast, Kenya’s Climate Change Act 11 of 2016, read with the Amendment Act 9 of 2023, provides a climate change fund (section 25), which is a financing mechanism for priority climate change actions and interventions.6 They have also implemented a county climate change fund, which is designed to finance local adaptation measures and is managed at the discretion of the county government.7 Similarly, Nigeria’s Climate Change Act of 2021 in section 15 establishes a Climate Change Fund, which also allows for international contributions.8 Section 21 of Uganda’s Climate Change Act of 2021 provides for a similar financing mechanism, while section 26 permits an individual to claim L&D from the government, an individual, or a private entity in line with the polluter-pays principle.9

As Van der Bank and Karsten point out, not only has South Africa agreed to and ratified several vital international instruments, but it has also implemented diverse national climate programmes and policies.10 However, South Africa, as noted, has remained a silent bystander to the L&D debate, compared to, for example, outspoken Kenya.11

Accordingly, this article critically discusses the relationship between South Africa’s climate change laws and policies with L&D, considering the country’s role in promoting the ‘African Agenda’ and global efforts to address climate change. A special focus lies on the need for transparency and accountability in the L&D debate. As McNamara and Jackson demonstrate, the majority of L&D-related literature concentrates on the general international landscape.12 Recently, Calliari and Vanhala have called for a ‘national turn’ in the study of L&D governance, urging researchers to help identify knowledge gaps to support L&D policymaking from the global to the local level, as well as identify potential tensions and impediments within L&D policy-making processes.13 While progress is being made at the global level, addressing L&D must also take place from the ‘national level of determining policies and strategies to the local scale, where communities and households must confront changing conditions’.14 As Vanhala and others stipulate, the way L&D is ‘constructed by different actors across levels of governance will shape whether and how it is understood, prioritised, institutionalised and operationalised in research and policy-making’.15

Therefore, the purpose of this article is to turn the focus to South Africa. Our contribution aims to build on existing knowledge and offer a ‘helicopter view’ of South Africa’s legal and policy framework concerning climate change to determine if and how it relates to L&D. This contribution will first provide an overview of the definitions and meanings that have been attributed to L&D in ongoing research. It will then note South Africa’s vulnerability to climate change-induced impacts and demonstrate the country’s mitigation and adaptation focus, to the omission of L&D. Challenges hindering the implementation of South Africa’s relevant climate change policies will then be discussed. This contribution will thereafter examine South Africa’s approach to climate change-induced disasters. Lastly, a few aspects of the Loss and Damage Fund will be addressed, along with a few of the remaining questions. This part will be followed by the conclusion.

2 Understanding loss and damage

2.1 Finding a definition

Currently, there is no universally accepted definition of L&D.16 In the context of climate change, it may be defined as ‘the actual and potential manifestation of climate change impacts that negatively affect human and natural systems’.17 As Roberts and Pelling explain, ‘loss and damage’ (lower case) refers ‘to the impacts of climate change not avoided by mitigation and adaptation efforts’, whereas ‘Loss and Damage’ (upper case) refers ‘to the broader policy frameworks at all levels within which these impacts are being addressed’.18 Van der Geest and Warner refer to L&D as the ‘negative effects of climate variability and climate change that people have not been able to cope with or adapt to’.19

Thus, L&D is often referred to as the ‘third pillar of international climate change law’, that complements mitigation and adaptation.20 As Broberg summarises, there are three common approaches to understanding this relationship. The first concerns the interpretation of L&D as going ‘beyond adaptation’, L&D including actions that address the impacts of climate change that are ‘residual’ to mitigation and adaptation.21 The second focuses on ‘tolerable risk’, where adaptation is about ‘keeping risks within the range of what is perceived as tolerable’, and L&D ‘is a response to risks that cannot be kept within that range’.22 The third distinguishes between ‘avoidable, unavoidable, or unavoided impacts’.23 If it is ‘impossible to adapt to an impact so that it becomes unavoidable, it will fall in the L&D category’.24 Martyr-Koller and others concur that L&D denotes the impacts of climate change that ‘(a) can be avoided by mitigation and adaptation efforts,
(b) have not been avoided (unavoided) through adequate mitigation and adaptation efforts, or (c) cannot be avoided (unavoidable)’.25

Displacement is also connected to L&D – people who are facing intolerable levels of risk, and who do not have the ability or the resources to cope with hazards while remaining where they are, have no other options but to either flee their country or relocate internally.26 Therefore, Bhandari and others argue that L&D actions ‘must also be understood to go beyond relief, rehabilitation and recovery from disasters to include safe migration and resettlement and long-term security to re-establish lives and livelihoods’.27 To clarify, L&D is said to have two components: pro-action and reaction. The first, which precedes L&D, includes climate change adaptation, disaster risk reduction and management, training, and long-term partnerships, while the second, which comes afterwards, includes disaster relief and long-term recovery, grants through government programmes, insurance pools, humanitarian aid, and potential compensation.28

There also is a distinction between economic L&Ds that ‘are traded in markets and quantified’, including harms to property and infrastructure, and non-economic L&Ds that are ‘intangible or are not traded in markets’, including loss of life, loss of biodiversity, and loss of cultural heritage.29 Thus, Kreienkamp and Vanhala explain that while one can simply define L&D as referring ‘to the residual effects of climate change that cannot (or will not) be avoided through mitigation and adaptation’, it still has many facets thereto.30 This includes impacts related to extreme weather events, such as flooding, droughts, or cyclones, and slow-onset events, such as sea level rises, desertification, or melting glaciers.31

As Boyd and others note, most of the concerns surrounding L&D could have been resolved by now, had there not been so many different perspectives on it.32 While an unclear definition of L&D is constructive for diplomatic negotiations and engages researchers in debate, it could, as Toussaint warns, pose a significant obstacle for potential litigants seeking to base their arguments on the international policy response and for judges looking for clear guidance on state obligations regarding climate damages.33 Thus, it is critical that a precise, universally-accepted definition, including the meaning and scope, of L&D, be established.

2.2 Practical examples

Climate change causes monetary and non-monetary losses and damages, particularly in vulnerable countries. Between 2000 and 2019, 6 681 climate-related disasters were recorded worldwide, affecting 3,9 billion people.34 In 2023 alone, nearly 15 700 people were killed in extreme weather disasters in Africa, while a further 34 million were affected.35 In Southern Africa, over 10 million people are displaced due to climate-related disasters, economic pressures, and human insecurity.36 By 2050, over 85 million people could be forced to migrate throughout Africa if concrete climate and development actions are not taken.37 It is estimated that up to 600 million more people in Africa could be affected by food insecurity and malnutrition as agricultural systems break down due to climate change impacts, and another 1,8 billion people could be affected by water scarcity.38 In addition, nearly 200 heritage sites in Africa could be exposed to extreme events by 2050 if climate emissions remain unchecked.39

Many of the world’s most climate-vulnerable countries and peoples, such as the least-developed countries (LDCs), which account for only 4 per cent of global greenhouse gas (GHG) emissions, have contributed little to climate change. Africa, for example, accounts for the smallest share of GHG emissions, at nearly 3,8 per cent.40 Yet, they are being heavily exposed to extreme climate-related disasters.41 A report by the Vulnerable Twenty Group, which consists of 68 countries including 28 from Africa, estimated that they had lost one-fifth of their gross domestic product (GDP) over the past two decades and would have been 20 per cent wealthier today without climate change.42 It is reported further that annually African countries lose 3 to 5 per cent of their GDP, responding to climate change vulnerability costs and, in some cases, more than 15 per cent. According to an analysis of the nationally determined contributions (NDCs) of 51 African countries, an estimated €548 billion in adaptation funding is needed.43 While the war continues to wage in Ukraine, an urgent and sizeable funding gap continues to widen in humanitarian aid for displaced persons in Africa.44

3 South Africa and loss and damage

3.1 Vulnerability to climate change-induced impacts

As part of the continent most vulnerable to climate change-induced natural disasters, South Africa is experiencing severe droughts, floods and storms.45 This has resulted in over 40 000 displacements in 2022.46 Over the last several decades, warming in the Southern African interior has occurred at about twice the average rate of global warming.47 Systematic increases in extreme temperature events, such as heat waves and high fire danger, have also been recorded.48 By 2100, marine heat waves will increase around Africa, with a hotspot of around 2ºC along the 24 coastlines of South Africa.49 During the 2023 festive season, Simon’s Town, in the Western Cape province of South Africa, was faced with a raging mountain fire.50 This follows floods in September that resulted in damages estimated at R500 million (€24,51 million) for provincial infrastructure and a further R154 million (€7,55 million) for municipal damages.51

During 2016 to 2021, South Africa spent nearly R1 billion (€49 million) in drought relief fund allocations.52 Between 1952 and 2019, the country experienced total economic losses of over €8 billion in responding to natural disasters,53 less than 16 per cent of which was insured.54 It is anticipated that these disasters will continue to grow in their severity, while relief costs and rebuilding will become increasingly unaffordable for a country with an already weak economy, massive unemployment, and growing social support demands. By 2100, the country could lose up to 13,5 per cent of its GDP if climate change continues unabated.55

Since 1980, ‘noticeable weather-related disasters’ have caused over R113 billion (€5,54 billion) ‘in economic losses’.56 These costs have diverted resources from both long-term developmental objectives, such as education, health and poverty reduction, and from short-term much-needed repair of nationwide failing infrastructure.57 For example, it will cost the government of South Africa an estimated R4,5 billion (approximately €220,62 million) to repair and replace infrastructure damaged by flooding in 2023.58

Although L&D debates are taking place internationally, it ‘is mostly a local problem’ that is increasingly difficult for vulnerable communities to address.59 As Khine and Langkulsen discuss, climate change has a significant impact on South Africa’s vulnerable populations, by further exacerbating their losses and damages, which is only expected to worsen as climate change persists.60 Gray and others specifically note the significant impact of climate change on worker welfare and employment rates in South Africa.61 Although the economic losses suffered are often cited, Bouchard and others rightfully encourage not to forget about the psychological harm incurred by the victims of climate change-induced events.62

In South Africa, cumulatively, drought has affected nearly 22 million people; every year on average, disasters result in 63 deaths and affect more than 500 000 people.63 Approximately 300 000 people, per year, are anticipated to be vulnerable to malaria by 2050, under a high-emissions scenario.64 It is also projected that, by 2030, an additional 8 500 people may be at risk of river floods annually as a result of climate change, and an annual average of 13 900 people are projected to be affected by flooding due to sea level rise between 2070 and 2100.65 It, therefore, is domestically ‘crucial’ for South Africa to both articulate and clarify its position on L&D.66

3.2 Obligations under the Paris Agreement

3.2.1 Relevant domestic policies on climate change

At COP21, held in Paris, France, in 2015, the Paris Agreement emerged, which highlights the ‘importance of averting, minimising, and addressing’ L&D ‘associated with the adverse effects of climate change, including extreme weather events and slow onset events, and the role of sustainable development in reducing the risk of’ L&D (article 8(1)).67 Under the Paris Agreement, South Africa has the following main obligations: to pursue efforts to keep the global average temperature rise to well below 2°C (article 2); to prepare and periodically submit nationally determined contributions (NDCs) (article 3); to submit an NDC with a mitigation focus and to pursue steps to achieve the communicated contribution, with subsequent NDCs every five years representing an increase in ambition targets (article 4); and to implement its adaptation contribution (article 7); as well as reporting obligations under article 13.

South Africa’s National Development Plan (NDP) and the National Climate Change Response White Paper together provide the strategy for the country’s transition to a lower carbon and climate-resilient society. The overarching aim of the NDP is to eliminate poverty and reduce inequality by ensuring, among others, a transition to an environmentally sustainable, climate change-resilient, low-carbon economy, and just society.68 The NDP does stipulate that climate change impacts have caused ‘losses’ in the form of human life and economic and ‘damage’ to the environment, such as soil loss due to erosion, loss of soil fertility, salination, and other forms of degradation, but makes no other mention thereof. The White Paper has two main objectives: to manage expected climate change impacts through interventions that build and sustain South Africa’s social, economic, and environmental resilience, and emergency response capacity; and to make a fair contribution to the global effort to stabilise GHG concentrations in the atmosphere at a level that avoids dangerous anthropogenic interference with the climate system within a timeframe that enables economic, social, and environmental development to proceed sustainably.69

The national priorities highlighted in the White Paper and NDP are the basis from which other programmes, plans, and reports are developed on a national, provincial, and municipal level. Planning and reporting documents are prepared both on a national level and as part of international reporting commitments. The national planning and reporting documents cover both adaptation and mitigation. The key document on adaptation is the Long-Term Adaptation Scenarios, which details national and sub-national adaptation scenarios for South Africa under future climate conditions and development pathways.70 The scenarios summarise climate change impacts and potential response options for water, agriculture and forestry, human health, marine fisheries, and biodiversity. The key document on mitigation is the Mitigation Potential Analysis, which identifies and analyses further mitigation options in strategic economic sectors, including energy, industry, transport, waste and agriculture, forestry, and other land use.71

The National Climate Change Response Green Paper presents the government’s vision for an effective climate change response and the long-term transition to a climate-resilient and low-carbon economy and society, based on the government’s commitment to sustainable development. The Green Paper outlines several methods for achieving the government’s climate objectives, such as giving adaptation and mitigation measures top priority; mainstreaming climate change responses into all national, provincial, and local planning processes; and acknowledging the efforts made by developed nations to combat climate change. Given its energy-intensive, fossil fuel-powered economy and high vulnerability to the effects of climate variability and change, the Green Paper characterises South Africa as ‘both a contributor to and a potential victim of global climate change’.72

As required by article 12 of the United Nations Framework Convention on Climate Change (UNFCCC), South Africa’s Third National Communication reports on national circumstances; provides an GHG inventory; sets out trends and projected changes in the country due to climate change; sets out measures to mitigate and adapt to climate change; and other relevant information. The Communication discloses that monitoring of vulnerability and the evaluation of adaptation measures in the country are ‘considerably challenging’ due to ‘a lack of consensus regarding the appropriate frameworks and best methodologies for assessing vulnerability’.73 This might explain the lack of attention given to displacement resulting from climate change. As Jegede and others discuss, South Africa’s climate-related policies and laws are centred around the prioritisation of the economy and the environment, to perhaps the omission of human rights and climate justice.74 An additional hindrance is the country’s reluctance to sign or ratify the Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), which was adopted by the African Union (AU) in 2009 and entered into force in 2012 and which aims to prevent internal displacement, to protect internally-displaced persons, and to provide for durable solutions.75

The National Climate Change Adaptation Strategy is a ten-year plan describing key strategic areas with measurable outcomes. It seeks to ensure that different levels of government and the private sector integrate and reflect climate change adaptation. The Strategy acknowledges that, currently, there is a lack of clarity and coordination in different spheres of government and sectors regarding responsibilities and mandates for climate action.76

South Africa’s Climate Change Bill B9B-2022 was finally approved and on 23 July 2023, President Cyril Ramaphosa signed it (Act 22 of 2024) into law, setting out a national climate change response, including mitigation and adaptation actions, which also constitutes South Africa’s fair contribution to the global climate change response.77 No mention is made of L&D. As stated, this was a point of contention during public hearings. ‘Losses’ are also not mentioned, the distinction being that L&D encompasses all adverse effects of climate change that cannot be mitigated or adapted to, including both reversible and irreversible impacts, whereas ‘losses’ specifically refer to the irreversible impacts of climate change that cannot be restored or recovered.

As King and others observe, one need not discuss all of South Africa’s achievements as regards climate change to be able to deduce that the focus is on mitigation and adaptation.78 Mitigation efforts include reducing or preventing GHG emissions by utilising new technologies and renewable energies.79 Adaptation denotes altering our behaviour, economies, infrastructure, and so forth, to reduce our vulnerability to the effects of climate change.80 South Africa made a firm commitment in its statement to the COP13 Plenary to ‘take ambitious mitigation action’ and ‘contribute its fair share towards our common responsibility for the future’, with the assertion that ‘inaction by any country’ is ‘inexcusable’.81 However, 17 years later, South Africa faces several diverse challenges in achieving its international commitments: ‘Timely and full implementation of’ the country’s climate change-related policies ‘remain uncertain’ with a ‘lack of progress in recent years and missing political leadership to take the required measures’.82

3.2.2 Challenges in the public sector

Government officials have confirmed that there ‘are not enough funds to implement all climate change plans and projects’ and, although ‘we receive external funding from donors, it is never enough’.83 A recent report found that the country’s current public and private climate investments, at an average of
R131 billion (€6,42 billion) a year for the 2019 to 2021 period, must increase to an average of R334 billion (€16,37 billion) per year to meet its net zero goal by 2050, and R535 billion (€26,22 billion) per year to meet its NDC target by 2030.84 Yet, the paradox remains: South Africa continuously receives climate finance, which mostly remains either unallocated or is said to fund renewable energy solutions, funding, policy reforms, and capacity building – all measures, the implementation of which is said to be hindered by funding constraints.85

The Southern African region is said to bear the largest financing gap as regards climate change investment funding, but South Africa continues to receive the most.86 Yet, South Africa is not even listed as one of the countries and regions most affected by impacts from climate-related extreme weather events.87 Therefore, in their proposed Climate Justice Charter (2020), the Climate Justice Charter Movement – a South African collaborative movement that engages with grassroots inputs from various communities, climate scientists, and academics – emphasises the necessity for transparent and accountable spending of funds related to climate change.88 They had even launched petitions requesting that international funders and investors stop contributing to South Africa’s just transition until the government begins fulfilling its promises, claiming that the ‘government is engaging in doublespeak’.89

According to a 2021 survey, roughly 49 per cent of South Africans have heard of climate change, while the other half are unfamiliar with the concept.90 Of the 34 African countries surveyed, South Africa ranked among the bottom ten in citizen awareness of climate change.91 Researchers also looked at how farmers in South Africa perceived and dealt with adaptation and mitigation and found that they faced institutional, political, economic, and biophysical barriers.92 For example, they experience a lack of governmental support, due to political tensions regarding land rights, and a lack of reliable and long-term information regarding climate change.93

According to government officials, the following are key challenges to developing and implementing climate change adaptation policies: outdated information used; not enough climate change plans in place; lack of knowledge by staff members; no climate change unit at district and local levels; no legal mandate at the local level; inadequate coordination across government levels; limited understanding by communities; limited political will at local level; lack of human capacity at provincial and local level; and inadequate financial resources.94

As Averchenkova and others discuss, there is a pervasive tendency for municipalities and regional authorities to operate in ‘silos’.95 As Leck and Simon deliberate, in South Africa, tackling climate change involves processes and institutions operating at multiple interlinked scales, but meaningful and sustained cross-scale climate change governance has been lacking.96 By its admission, the South African government notes the challenges faced ‘on enhancing institutional relations between governmental departments … to fast-track the implementation of mitigation actions’, which has resulted in ‘silo approaches’.97

Exemplifying their argument, Leck and Simon examined the eThekwini Metropolitan Municipality, which has substantial financial resources with considerable infrastructure and capacity, and Ugu District Municipality, which is financially under-resourced and under-skilled, both located in the KwaZulu-Natal province.98 Leck and Simon found that while both municipalities face similar challenges of high spatial segregation and social exclusion, extreme poverty, inadequate living facilities, unemployment, and water, sanitation and electricity backlogs, eThekwini is regarded as a world-leading municipality for its anticipatory climate change actions, specifically its explicit focus on adaptation at the municipal and community scales.99 Ugu, on the other hand, is comparatively understaffed, with weaker expertise and resource capacities for developing climate strategies, which is ‘a secondary priority’ for the district, ‘competing with other short-term critical issues’.100

While historical inequitable political-economic and social ordering can be blamed, which has resulted in municipalities with disparate resource capacities and development trajectories, Leck and Simon identified enduring constraints, such as a lack of harmonised and sectoral planning for climate change.101 They interviewed officials from both municipalities, who cited poor meaningful interaction and guidance on climate change issues; weak vertical integration, collaboration and information sharing; and a prevalent lack of understanding at the provincial and national government scales about local-level realities and contextual considerations, as major stumbling blocks:102 ‘We are guiding them, unfortunately; that is the way it is. They are not in the same boat as us in addressing climate change … We are all caught in the middle of political games here; the politicians play us off.’

Adom and others concur, contending that ensuring a coherent policy formulation and implementation, both vertically and horizontally, remains a severe challenge for South Africa, highlighting a lack of clarity among government structures, which has led to poor coordination on how the policies should be aligned and implemented.103 These constraints are said to be more severe at provincial and municipal levels.104 While it is correct to state, as Sibiya and others do, that these issues have time and again been cited by researchers, for example, by Ziervogel and others, it is concerning that these issues remain unaddressed.105

Irrespective of the concerns, in its updated draft NDC, South Africa notes that its estimates are based on ‘the assumption that support will be provided for’ the country to achieve its targets and ‘for mitigation, adaptation, and [L&D]’,106 explaining further that most of the climate finance that South Africa has received to date has supported mitigation projects. This contrasts with the findings of Serradinho and others, that ‘due to its standing within the region as predominantly a provider rather than the receiver of’ international disaster assistance, such assistance ought not to be ‘a priority’ for South Africa.107 Critics have cautioned against this ‘victim mentality’.108 As one researcher contended, ‘the most damaging unintended consequence of the … [L&D] fund is what it does to the headspace of African countries … Psychologically, it entrenches us as recipients of donor aid; victims.’109 Unfortunately, as Adom and others discuss, the reality is that the South African government alone cannot provide all the financial resources needed to address climate change effectively.110

Although the issues highlighted in this article are not exclusive to South Africa,111 one would expect the country to present a better role model on the continent. As Schoeman and others discuss, South Africa frequently portrays itself as a ‘bridge between the North, the Global South and Africa’ and as a ‘gateway into the continent’, given its membership in the (growing) alliance of (among others by now) Brazil, Russia, India, China, and South Africa (BRICS) and the G20.112 With numerous reports cautioning African countries about the steady increase in climate change impacts, it no longer is acceptable for South Africa to window-dress its policies with attractive long-term goals and nett zero emission targets while half-hearted implementation measures are being undertaken on the ground to alleviate its citizens of impacts being felt today.113

3.3 South Africa’s approach to climate change-induced disasters

Despite its policies stating the contrary, South Africa has a persistent and enduring habit of focusing on relief and emergency support, rather than implementing a proactive policy.114 This approach is not new to countries similarly forced to deal with more pressing issues.115 Yet, it must be borne in mind that the country has been advised to adapt to climate change and warned of the consequences of failing to do so since the 1990s.116 Disaster risk reduction and climate change adaptation are connected through their common goal of ‘reducing the impacts of extreme events and increasing urban resilience to disasters’.117 Many countries, South Africa included, address the impacts of climate change through their disaster management frameworks, albeit with limited policy coherence between the two.118

Since 2018 the ‘national state of disaster’ was declared by the South African government several times, due to ‘severe weather events’.119 Such declaration enables the government to utilise emergency financial reserves through the Disaster Management Act 57 of 2002 (DMA) (sections 27(2) and 56).120 Currently, there are two sets of overarching emergency funding, namely, the Provincial Disaster Relief Grant (PDRG) and the Municipal Disaster Relief Grant (MDRG), intended to fund emergency repairs to essential basic services infrastructure, the provision of temporary infrastructure, humanitarian relief, and other immediate essential services following a declared state of disaster. Both grants are administered by the National Disaster Management Centre (NDMC) in consultation with the National Treasury (chapter 3 of the DMA). These grants are allocated solely to respond to immediate needs, the so-called first phase response. Coupled with these funding streams, the government has implemented a Provincial Emergency Housing Grant (PEHG) and a Municipal Emergency Housing Grant (MEHG) for the provision of temporary shelter assistance to households affected by disasters. There is also the Municipal Disaster Recovery Grant, introduced to restore the functionality of municipal infrastructure following a disaster. Provinces and municipalities may further apply for post-disaster damages financing for the second phase of emergency response. However, according to the Policy Framework for Disaster Risk Management 2005 (Framework), this is contingent on the relevant state organs having earmarked money therefor.121 Before any funding is released in either phase, verification processes must be followed.

In 2022, when severe floods hit parts of South Africa, massive unattended or inadequately-addressed needs were reported, notably, in the most remote and isolated affected areas.122 The auditor-general commented that ‘the overall response to’ disasters is ‘too slow and inadequate’, indicating ‘systemic failures’.123 For example, of the 4 799 temporary residential units, which had to be provided in 2022 for flood victims, only 45 were completed.124 The Minister of Human Settlements has confirmed that several affected families had to wait two to three years after the disaster struck for adequate housing provisions.125 In the eThekwini Metropolitan area, 57 per cent of victims had not received drinking water for more than three days following the flooding.126

Although disaster relief funding is available, only small amounts of it have been spent.127 R1 billion (€49 million) were made available by the government for emergency relief in 2022.128 However, the National Treasury reported that approximately R359 million (€17,60 million) had been spent in response to the disasters.129 In August 2022, the KwaZulu-Natal and Eastern Cape provinces submitted requests for R2,9 billion (€142,17 million) and R50 million (€2,45 million), respectively, for reconstruction and rehabilitation interventions.130 The auditor-general observed that this was due to a lack of effective oversight and monitoring of the original funding provided.131 Community members affected by these events have voiced their distrust in the government when it comes to expecting disaster assistance.132 This raises the question of why the money was not used to provide relief and, more importantly, whether the same would happen with L&D funds. Considering that the DMA contains limited provisions regarding international disaster assistance, let alone specific provisions on transparency and accountability mechanisms.133

In 2023, R372 million (€18,23 million) was added to the MDRG, while R1,2 billion (€58,83 million) was added to the Municipal Disaster Recovery Grant for the repair and rehabilitation of infrastructure damaged by flooding.134 Aiming to avoid the scrutiny faced in 2022, the government appointed an Ad Hoc Joint Committee on Flood Disaster Relief and Recovery in 2023 to oversee the flood disaster relief and recovery measures in the affected provinces. These two instruments, being the added funding and oversight committee, certainly illustrate improvement from the national government. Provincial and municipal governments, however, still ‘appear to lack’ sufficient budgets and political will to invest in effective preparedness strategies.135 In their inspection of the affected areas, the Ad Hoc Joint Committee noted housing units being built for victims on flood plains, making them again susceptible to damage. The progress on implementing disaster relief and recovery measures ‘has been very slow’, with certain disaster management plans received being ‘too broad’ and lacking time frames, and certain municipalities did not even request funding, leaving the flood damage as is,136 thereby, leaving reaction as the preferred approach.

The concerns listed could be attributed to numerous obstacles, including heavy bureaucracy, intergovernmental fragmentation, rigidity of existing institutions, and corruption due to a lack of transparency and accountability measures.137 According to Bhandari and others, ‘quickly accessing reliable climate funds has been a persistent challenge for developing countries due to factors’, such as ‘insufficient fundraising, difficulties and inconsistencies in fund allocation, delays in access channels, as well as the structural political and organisational complexities in each of the existing funds’.138

Therefore, Baudoin and others conclude that ‘there is little evidence’ in practice of ‘disaster risk reduction, preparedness, mitigation, and rapid, effective response’.139 Coupled therewith is South Africa’s ‘tardiness’, to date, in committing to the Southern African Development Community (SADC) Humanitarian and Emergency Operations Centre (SHOC) in Mozambique. The SHOC will be responsible for coordinating regional disaster risk preparedness, response, and early recovery efforts to support member countries affected by disasters. The Centre facilitates the supply chain management of equipment and supplies that SADC responders require during the deployment of humanitarian support to member states. This again highlights a lack of political will regarding emergency operations. As a country vulnerable to climate change and high-impact extreme climate events, South Africa has been urged to endorse the SHOC.140

Regarding proactive procedures, the DMA requires provinces and municipalities to implement relevant risk preparedness measures and to use early warning technologies to avoid or at least minimise the occurrence of disasters.141 However, studies conducted on weather events in 2022 indicate that while South Africa’s weather advisories predicted these events in advance, many people did not respond to the warnings or were not made aware of them.142 In a study of some of the worst natural disasters recorded, De Perez and others found that disasters do not occur due to a lack of forecasts and early warning systems, but rather due to inadequate communication and response capability,143 both issues that Mashao and others contend must be greatly improved in South Africa.144

Given that South Africa conflates L&D, and its disaster management processes, the purpose of the contribution thus far is to highlight the problems that have been apparent for several years now, to caution of a similar outcome for the Loss and Damage Fund, should South Africa become a beneficiary thereof. As Baudoin and Ziervogel warn, there currently is ‘limited exploration of how international funding is landing on the ground and impacting on adaptation and the targeted vulnerable groups’.145 Schultheiß and others further concede that it ‘is already well established that most climate funds have struggled to reach the most vulnerable communities and groups, despite having … policies in place’.146

3.4 COP28 and beyond

3.4.1 Loss and Damage Fund: Additional concerns

In 2024, the Loss and Damage Fund has made significant strides towards becoming fully operational.147 South Africa holds a position on the Board and has been actively participating in meetings. Yet, several lingering questions and concerns remain. As can be expected, ‘the political nature’ of L&D has contributed to its lagged development, specifically, concerning the provision of international finance.148 Vulnerable countries have traditionally advocated L&D finance to be provided by industrialised countries given their argued ‘historical contribution’ to climate change which, in turn, has continually been met with strong resistance by developed countries.149 This has led to a serious stalemate in the discussions of the Transitional Committee, which was appointed in the lead-up to COP28 to make recommendations for consideration and adoption of the proposed fund, namely, who should pay and receive the L&D funding support.150

The Committee has vaguely remarked that the fund ‘should target the particularly vulnerable people and communities … in developing countries that are facing the adverse impacts of climate change and have limited capacity for adaptation’.151 Other options include either limiting the fund to developing country parties to the UNFCCC and the Paris Agreement or LDCs and small island developing states (SIDs).152 A representative of SIDs commented that ‘all developing nations should be eligible to receive support’.153

It has been confirmed during COP28 that the fund is open to all developing countries ‘particularly vulnerable’ to the effects of climate change.154 However, the fear is that ‘small, highly vulnerable communities’ might be side-lined ‘by the demands of bigger nations’, such as, for example, South Africa.155 South Africa is an attractive candidate for L&D funding, not only because it is part of the continent scientifically most vulnerable to the effects of climate change, but also because of its standing and relations in the international community, which has made it a favourite recipient of climate-related funding.156 Moreover, as a negotiating partner has remarked, the (previous) ‘minister of energy in South Africa called himself “minister of coal”, just to tell you where the mentality is’, thus, ‘we need to work with South Africa’, and that is ‘why the finance is going in that direction’.157 Therefore, a careful reconsideration of the meaning ascribed to ‘particularly vulnerable country’ might be imminently warranted158 – the definition of which is not detailed in the approved text.

Boyd notes that in terms of eligibility for the Loss and Damage Fund, the question as to ‘what extent should the country have been affected’ remains unanswered.159 This also raises the question as to whether the ‘beyond adaptation’ element is strictly required. There is room to argue that the damage caused by extreme weather events in South Africa over the last few years could have been lessened were infrastructure maintained and disaster fund spending strictly monitored.160 For example, it is predicted that if adequate adaptation measures are implemented, South Africa could reduce climate-related road maintenance by 2050 by 43 per cent.161 Furthermore, the University of Notre Dame Global Adaptation Initiative has ranked South Africa with a ‘low vulnerability score’ because ‘its current vulnerabilities are manageable’, albeit noting that ‘improvements in readiness’ are necessitated.162 Ortega-Cisneros and others concur that scientific research is needed to determine whether present impacts and longer-term impacts are reversible with adequate measures in place or beyond adaptation.163 Additionally, with the extreme weather incidents that occurred in 2023, experts cautioned that while climate change has made South Africa more likely to experience such events, we cannot cry climate change after every episode, as more ‘long-term data is required’.164

Currently, L&D falls within South Africa’s existing disaster management realm. This highlights the complexity of deciding on the objective of the fund. Sherman, the co-chairperson for developing countries of the Transitional Committee on L&D finance, has stated that for South Africa, the fund could take the form of financial support to help respond to events, such as those seen in 2022 to 2023 or address slow-onset events, such as the economic costs of agricultural losses owing to a possible decline in pollinators, or economic losses because of a change in weather conditions that could destroy fisheries.165

Zero Carbon Analytics, an international research group, discusses that for African countries, the Loss and Damage Fund needs to function at multiple levels to cover unavoided, unavoidable, economic and non-economic L&D, and would require close cooperation and coordination among different levels of government, the multilateral system, and various sectors across society.166 Using the flooding in South Africa in 2022 as an example, they discuss how ill-prepared the country was to respond to the event, given that there is no reliable disaster risk database; local, provincial, and national governments have not been proactive in planning and building resilience; and early-warning systems and flood mitigation measures are inadequate, thus, no rapid-response system is available. In addition, they point to uncontrolled urbanisation and a lack of land-use zoning enforcement, for example, prohibiting people from building below the flood line, and the poor education of many communities on the danger posed by such an event, as areas in need of improvement. Accordingly, for South Africa, they suggest that, in terms of disaster management, the Loss and Damage Fund be used to develop an advanced early-warning and rapid-response system; relocate at-risk communities; protect at-risk infrastructure; invest in projects that empower local government to educate communities regarding climate change; and provide mobile health facilities in anticipation of disaster events.167 It is regrettable, however, that they suggest that if the fund were to be allocated to South Africa, priority should be given to addressing issues that should have already been tackled by now.

Boyd also points out that the question remains as to what types of losses and damages will be covered.168 For example, humanitarian assistance is merely one component of L&D.169 Indeed, it has been clarified that while humanitarian aid is related to L&D in terms of reacting to climate change-induced disasters and could enhance the response time of existing programmes, duplication of funding must be avoided.170 Then there is also the issue of displacement, which can simultaneously be an indication of L&D incurred by people and communities, L&D in itself, and a cause thereof.171 During COP28, it was confirmed that the Loss and Damage Fund could be utilised to support ‘safe and dignified human mobility in the form of displacement, relocation and migration in cases of temporary and permanent loss and damage’.172 In a country where timely relief for ‘normal’ weather disasters is severely lacking with mismanaged funds, a mechanism as vital and long fought for as climate change-induced L&D cannot merely be lumped under the existing pile of unimplemented policies or exposed to the ‘black hole of public financing’. Thus, dedicated L&D policies in South Africa are necessary to not only set out its functioning and scope but also to harmonise it with disaster management, instead of merely making it ancillary thereto.

It was decided at COP28 that the fund will aid in addressing a variety of challenges associated with the adverse effects of climate change, such as climate-related emergencies, sea level rise, displacement, relocation, migration, insufficient climate information and data, and the need for climate-resilient reconstruction and recovery.173 The focus is on providing complementary and additional support and improving the speed and adequacy of access to finance for responding to L&D.174 The Transitional Committee concurred that the fund should be flexible enough ‘to evolve in connection with evolving needs, priorities, and science’.175 It was agreed during COP28 that the Loss and Damage Fund would be overseen in a country-driven manner, given that applying a strict scope would fail to consider the needs and realities on the ground in different countries.176 With this flexibility, countries could reallocate funding to other areas of addressing L&D.177 This raises the question of nationally managing the fund.

It was agreed that the beneficiary developing countries may designate a national authority or national focal point to be responsible for the overall management and implementation of activities, projects and programmes supported by the fund.178 These activities are expected to be regularly monitored for impact, efficiency and effectiveness.179 Periodic independent evaluations of the performance of the fund will also be conducted to provide an objective assessment of the results of the fund, including the activities financed thereby.180

For countries such as South Africa, transparency is crucial for successful implementation.181 Fair Finance, a civil society coalition that investigates government spending, reports that there is a lack of transparency as to how the South African government utilises its climate finance.182 Fair Finance further expresses concern over the lack of public consultation undertaken in that regard.183 According to a 2022 study, communities ‘wish to be part of the just transition decision-making and implementation process and wish to be empowered to participate in and support the transition effectively’.184 However, communities lose interest because climate-related issues are often, perhaps intentionally, conveyed in an overly technical manner.185 The hope is that the Loss and Damage Fund will be different in ‘truly involving and being centred around affected communities and groups who have traditionally been excluded and marginalised’.186

To achieve this, strict guidelines must be set out to ‘ensure that adaptation and [L&D] finance is not conflated and that finance for [L&D] is not diverted or relabelled’.187 This point must not be glossed over but considered carefully. As a South African government official remarked, ‘different political parties have different priorities and oftentimes climate change is not prioritised’.188 Strict guidelines on accountability and transparency are crucial to prevent governments from merely reprioritising L&D funding to other areas carefully window-dressed to meet the fund’s criteria. Especially since in their report, the Transitional Committee noted difficulties in monitoring L&D finance.189

Further lingering questions concern how the money from the Loss and Damage Fund will be paid out, how the fund will be financed or replenished, as there is no firm obligation for developed countries to pay into the fund, and whether the World Bank should administer the fund in the long term.190 There are concerns over the World Bank serving as the interim organisation to manage the Loss and Damage Fund because it ‘would lack independence, fail to provide communities direct access to funds, and risk further indebting nations’.191 Critique has also been raised regarding the current commitment of $700 million (€635,06 million), as it lags behind the estimated $150 to 300 billion (€136,08 to 272,17 billion) needed by developing countries by 2030.192

A last issue concerns the interlinkage of the Santiago Network for L&D and the Loss and Damage Fund.193 While the Loss and Damage Fund establishes new funding arrangements and a fund for assisting developing countries that are particularly vulnerable to the adverse effects of climate change, in responding to loss and damage, the Santiago Network emerged from COP25 in 2019 as part of the Warsaw International Mechanism for Loss and Damage, which serves both the UNFCCC and its Paris Agreement.194 The Santiago Network is meant to catalyse technical assistance related to L&D directly to developing countries.195 Parties at COP26 agreed to six functions for the Santiago Network, namely, assisting in identifying and communicating technical assistance needs and priorities; identifying relevant technical assistance; and actively connecting those seeking technical assistance with best-suited organisations, bodies, networks and experts that could provide that assistance.196 The Santiago Network’s governance arrangements and institutional structure were further agreed upon during COP27.197 During COP28, the UN Office for Disaster Risk Reduction and the UN Office for Project Services were selected as the hosts of the Santiago Network secretariat.198 Apart from mentions relating to the need for coherence between the two, more clarity on how the Santiago Network will fit into the L&D funding arrangements is needed.199

3.4.2 Beyond the Loss and Damage Fund

There are significant global developments underfoot, such as the pending advisory opinions from the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (IACHR) on the obligations of states concerning climate change.200 The joint request for an advisory opinion on the climate emergency was submitted to the IACHR on 9 January 2023, by the Foreign Ministers of Chile and Colombia. This significant step aimed to clarify the scope of state obligations in addressing the climate crisis within the framework of international human rights law, particularly the American Convention on Human Rights. The request was prompted by the escalating impacts of climate change in the region, which disproportionately affect vulnerable populations and ecosystems. Recognising the urgent need for comprehensive and effective measures, Chile and Colombia sought to establish clear legal standards and guidelines for states to follow in their climate actions. This move highlights the growing recognition of the intrinsic link between environmental degradation and human rights violations, emphasising the need for robust legal frameworks to safeguard fundamental human rights in the face of climate change.

The European Court of Human Rights’ (ECHR) recent ruling in Verein KlimaSeniorinnen Schweiz and Others v Switzerland (2024) marks a historic moment in climate change litigation, but it also highlights a missed opportunity to explore reparations for climate-related harm.201 The case, involving four elderly women and a climate advocacy group, challenged Switzerland’s climate policies under various ECHR articles, claiming health risks from climate-induced heatwaves. While the Court found violations, it did not address reparations. Instead, it emphasised general measures for Switzerland to achieve significant GHG reductions and carbon neutrality, reflecting its traditional cautious approach. Although the ruling did not delve into specific remedies, it sets important precedents for future climate litigation and guides for improving national climate policies. This decision might signal the start of a broader trend in addressing climate change through human rights frameworks.

On 21 May 2024, the International Tribunal for the Law of the Sea (ITLOS) issued its first advisory opinion, determining that GHG emissions caused by human activity are considered ‘pollution of the marine environment’ under the United Nations Convention on the Law of the Sea (UNCLOS). This decision establishes that states have specific obligations, including the responsibility to prevent, reduce, and control anthropogenic GHGs originating from both land and sea sources. The African Union (AU), in their written statement and during oral hearings, emphasised the vulnerability of the African continent to climate change, confirmed their position in favouring the grant of an advisory opinion that bears in mind the principle of common but differentiated responsibility and, accordingly, urged ITLOS to take this ‘unprecedented opportunity’ to ‘address this problem in a way that contribute[s] to … the betterment of the majority of mankind’.202

As Torre-Schaub discusses, while advisory opinions ‘do not have the same binding force as decisions in litigation cases’, they can have ‘important effects on the principles of international law’ and on ‘climate disputes in the regional and national context’.203 As Nedeski and others conclude, even if the expected outcome is not as hoped for by those petitioning it, global collective action is required to combat the climate emergency, and legal insight from these international courts could play a significant role going forward in negotiations.204 For example, they could guide whether and how reparations should be calculated for the L&D suffered by countries due to climate change which, in turn, could further bolster climate litigation.205

A study on 73 legal cases demonstrates that currently it remains very difficult to hold private actors liable because the scientific evidence needed to distinguish their contributions from the whole ‘lags’.206 Attribution science continues to develop, which helps us to understand ‘whether, or to what degree, human influence may have contributed to extreme climate or weather events’.207 As a matter of fact, the ‘interplay between climate science and climate law becomes increasingly important when addressing L&D,’ causation, and compensation, which mandates that ‘science must enlighten the law’.208

Few attribution studies have considered African events to date.209 Developments in attribution science could support plaintiffs in satisfying legal tests for causation and, thus, provide a crucial step in successful litigation concerning adaptation and losses where no claims for remedies have been successful.210 Were such data readily available, the current legal framework in South Africa for claiming damages could accommodate such claims.211 However, first, the ambiguity, which still shrouds L&D, must be settled.212 Once the concept has been adequately defined, its litigation could become a vital gap filler to understanding how its elements set it apart from mitigation or adaptation cases.213

Only 15 climate change-related cases have so far been heard by national courts on the African continent, consisting of 54 countries, out of over 2 180 cases globally, these being in Kenya (two cases), South Africa (nine cases), Nigeria (two cases) and Uganda (two cases).214 Several factors hinder climate litigation on the continent, and beyond,215 including the complexity of the judicial processes; the onerous evidential burden and standard of proof required; the complexity of environmental issues; the lack of capacity and resources of communities affected; and the difficulty in proving causation due to a lack of scientific data.216 Moreover, it could be attributed to either a lack of legislative frameworks for litigants to rely on or the ‘newness’ of such frameworks.217 Only from 2022 onwards has there been a steady increase in climate change framework laws being implemented across Africa. Therefore, it might still be too early to expect substantive climate litigation from the region.218 Moreover, for countries such as South Africa, the focus first is on addressing poor enforcement of existing planning and environmental legislation before litigants tackle climate change matters.219 As a government official confirmed, ‘[i]t is not because people are in denial, but people are dealing with real-life issues’.220 For example, less than 50 per cent of audiences surveyed in South Africa, Kenya and Nigeria are interested in climate change as a news topic, given the daily challenges they are facing.221 In a recent survey, when citizens of 34 African countries were asked what they considered the most important problems that their government should address, fewer than 1 per cent of the participants listed climate change as a concern, while unemployment was at the top, followed by crime and housing.222

Since 2023, a notable shift has emerged in global climate litigation, characterised by increased efforts to hold major polluters accountable. This trend is particularly evident in the Global North, where jurisdictions are taking proactive steps to address climate change impacts. For instance, Multnomah County, Oregon, is seeking damages from corporations for the 2021 heat dome, while Vermont has enacted the Climate Superfund Act (S.259), imposing strict liability on major oil and gas companies for carbon pollution.223 Similar legislative initiatives are underway in other US states.224 This growing focus on climate liability underscores stark global disparities. While the Global North advances these measures, Global South communities often face significant barriers in pursuing comparable legal actions.

3.4.3 COP29

The 2024 UN Climate Change Conference (UNFCCC COP 29), set for 11-22 November 2024, in Baku, Azerbaijan, will advance the objectives of the UNFCCC and the Paris Agreement. The conference will focus on limiting global warming, enhancing adaptation efforts, and mobilising financial resources. Key sessions will include the 29th Conference of the Parties (COP 29), the 19th Meeting of the Parties to the Kyoto Protocol (CMP 19), and the sixth Meeting of the Parties to the Paris Agreement (CMA 6). Major agenda items will be finalising the enhanced transparency framework and setting a new collective quantified finance goal, alongside addressing other critical climate issues.

In the 2023 Global Stocktake, key findings from the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) were brought to light. The report confirmed that human activities have driven global warming of approximately 1.1°C, with widespread impacts that disproportionately affect the

most vulnerable populations, who have contributed least to climate change.225 It highlighted that current adaptation efforts are often fragmented and uneven, with significant gaps remaining. The Stocktake emphasised the need for integrated, multi-sectoral approaches such as sustainable land management and ecosystem conservation to bolster resilience and adaptation. It also called for continued financial support from developed countries and voluntary contributions to address L&D, following the Paris Agreement and the Warsaw International Mechanism. Progress under international mechanisms was acknowledged, yet the report noted persistent gaps in finance and support, stressing the urgency for enhanced action and coherence in managing climate impacts.

As the effects of climate change grow increasingly severe, COP29 faces immense pressure to produce actionable and impactful outcomes.

4 Concluding remarks

Thomas and Benjamin assessed the state of L&D management in both the Caribbean and Pacific Islands and found that a lack of data constrains it; gaps in financial assessments; and the absence of specific policies or mechanisms that holistically address L&D.226 Vanhala and others investigated the type of knowledge and ideas national policymakers and civil servants in Antigua and Barbuda draw on when conceptualising L&D as a governance object.227 They identified several barriers to policymaking, including a lack of shared understanding of what L&D entails and how to address it across government departments; a lack of relevant data; and political tensions around its collection and disclosure.

South Africa certainly qualifies for prospective L&D funding, on paper at least, ticking the vulnerability box.228 However, as highlighted herein, and mirrored by similar research by Thomas and Benjamin and Vanhala and others, significant obstacles remain. South Africa has shown limited progress in implementing the adaptation and mitigation measures it set out in its policies.229 The current reliance on disaster management is merely an insufficient reactive over proactive strategy, exacerbated by unmaintained infrastructure. The scale of vulnerability increasingly projected in Southern African cities is focused on a broad range of sectors, including business and tourism, air quality, health and food security, infrastructure and services, biodiversity and water resources.230 While larger cities have the political will and capacity to ensure the implementation of key climate policies, smaller cities continue to struggle therewith.231 While this could be argued as self-inflicted, they are reliant on national and provincial support and oversight.232 Thus, despite its sophisticated legal framework, implementation is hindered by South Africa’s complex and layered challenges.

At the beginning of 2024, President Ramaphosa introduced a new Climate Change Response Fund aimed at financing infrastructure projects to bolster South Africa’s climate resilience.233 This fund, a collaboration between the government and the private sector, is intended to address the growing impacts of the climate crisis. Unlike disaster response funds, it focuses on investments in sectors that enhance resilience to extreme weather events. The criteria for accessing the fund are still being finalised, and it is expected to become operational in the 2025/2026 financial year. It remains to be seen whether this fund will effectively address the issues highlighted or suffer from the same mismanagement as existing funds. Regardless, it will serve as a critical test of how climate resilience investments are managed and could provide insights into the management and benefits of L&D funding.

Awareness, capacity building, and policy alignment across the board must be the centre points for South Africa, should it become a beneficiary of the Loss and Damage Fund. Measures should be taken to enhance and strengthen government budget tracking, reporting, and verification systems.234 As the saying goes, ‘where there is bad governance, aid is ineffective, and where there is good governance, aid is unnecessary’.235 It is important to note that potential donors must have an appreciation for the fact that ‘achieving climate justice in South Africa demands global climate finance measures responsive to the problematic roots of the country’s political economy’.236 It is all well and good for a country to be able to boast that they have contributed toward the Loss and Damage Fund and call it a day, but that does little to advance the contours of climate justice and alleviate the harm suffered by vulnerable communities whose governments are not concerned with their climate adaptability or losses and damages suffered.237 Accordingly, before the fund becomes fully operational, the funding commitments must be made more clear and detailed, subject to appropriate conditions that enhance transparency and accountability. Such an L&D fund can support those who bear the major brunt of the climate crisis, based on the polluter-pays principle in response to non-economic losses and damages.

Moreover, it could present an attempt to rectify prevailing Global North-Global South injustices in the spirit of common but differentiated responsibilities and capabilities. As Bhambra and Newell discuss, colonialism has left a lasting imprint on climate change, as historical exploitation and resource extraction continue to shape environmental inequalities. The legacies of colonial practices contribute to disparate vulnerabilities and hinder the global efforts needed to address the challenges of a changing climate.238 Unfortunately, since L&D is both a political object and a scientific concept, countries will continue to struggle with how to develop policies and frameworks at the national level long after the fund’s anticipated operation.239 This is especially the case in South Africa, where competing socio-economic demands continue to outweigh the need for urgent climate change response. As has rightfully been pointed out, the current approach appears to be ensuring that South Africa attracts international investors with its ambitious policies and targets in the ‘(vain) belief that doing so will not only make [it] look more presentable but will somehow work its way down’, rather than first and foremost laying a foundation of efficient proactive policies with capable well-financed institutions to ensure their implementation.240

This is exemplified in the country’s Just Transition Framework, which aims to ensure that the shift to a low-carbon economy does not leave any communities or workers behind and considers the social and economic impacts of the transition towards a more sustainable and inclusive economy.241 As Swilling and others discuss, the Just Transition Framework is ambitious but its execution suffers institutional weaknesses and corruption; they posit that a just transition requires a socio-political regime aligned with a sustainability paradigm.242 While the policies are in place, contradictory government actions hinder a truly just transition.243

In discussing the potential for improved environmental policies under South Africa’s new government, it is essential to highlight the role of the Executive Committee of the Warsaw International Mechanism for Loss and Damage (EXCOM) in guiding these efforts. The new government, viewed as a beacon of hope following years of perceived neglect, aims to spearhead a just energy transition, integrating EXCOM’s insights to address climate change and protect vulnerable communities.244 As the first new government in South Africa in 30 years, changing political dynamics might pave the way for better implementation and proactive measures. Should it become a beneficiary of the Loss and Damage Fund, this article encourages South Africa to uphold its ‘African role model’ mantle and utilise the fund’s resources to greatly improve its disaster management processes, particularly turning the aim from reaction to pro-action, and urgently addressing the issues listed herein.