OPINION for THE CENTRE FOR ENVIRONMENTAL RIGHTS concerning THE POTENTIAL FOR CLIMATE LOSS AND DAMAGE CLAIMS IN SOUTH AFRICA

The document provides a preliminary legal mapping of the procedural and substantive requirements for a delictual claim against Carbon Majors in South Africa. It examines jurisdictional hurdles, such as the need to attach assets for foreign defendants, and the potential for state immunity defenses for state-owned companies. Substantively, it analyzes the elements of delictual liability—wrongfulness, fault, and causation—suggesting that South African courts' flexible approach to factual causation and the use of attribution science could support such claims. It also discusses parent company liability and the possibility of holding a select group of joint wrongdoers severally liable for the full extent of damages.

• To establish jurisdiction over a foreign Carbon Major without a registered office in South Africa, a plaintiff must typically obtain an order for the attachment of assets located within the country to found or confirm jurisdiction.
• Claims against state-owned Carbon Majors face significant risks from the foreign act of state doctrine and the principle of state immunity, which may lead a court to decline jurisdiction if the matter concerns the unlawful conduct of a foreign state.
• There is a strong legal argument for applying South African law to the merits of these claims based on the "place of damage" principle, as the harms from the 2022 KwaZulu-Natal floods were suffered within South Africa.
• Parent companies are generally not vicariously liable for subsidiaries, but may be held liable for their own independent negligence if they exercised a sufficient degree of de facto control, intervention, or supervision over the subsidiary's operations.
• Wrongfulness is presumed in cases of positive conduct causing damage to persons or property; however, for omissions or misrepresentations, the plaintiff must prove that imposing liability is reasonable based on public policy and constitutional values, including section 24 environmental rights.
• Establishing fault (negligence) requires proving that the risk of climate-linked harm was reasonably foreseeable. Evidence suggests Carbon Majors knew as early as the 1960s that burning fossil fuels contributes to climate change and harmful consequences.
• Factual causation can be established using a "flexible" approach or a "material contribution" test, meaning a plaintiff may not need to prove the defendant was the sole "but-for" cause, but rather that their conduct materially contributed to the risk or intensity of the harm.
• Under the Apportionment of Damages Act, a plaintiff can target a single Carbon Major or a small group as joint wrongdoers and seek the full amount of damages, as joint wrongdoers are jointly and severally liable.

APA

McConnachie, C., Raqowa, Z., & Mutemwa, D. (2024). OPINION for THE CENTRE FOR ENVIRONMENTAL RIGHTS concerning THE POTENTIAL FOR CLIMATE LOSS AND DAMAGE CLAIMS IN SOUTH AFRICA. Centre for Environmental Rights. https://cer.org.za/wp-content/uploads/2024/03/CER-Loss-and-Damage-Opinion-28.2.2024.pdf?x21779

Chicago

McConnachie, Chris, Ziphozihle Raqowa, and Deborah Mutemwa. OPINION for THE CENTRE FOR ENVIRONMENTAL RIGHTS concerning THE POTENTIAL FOR CLIMATE LOSS AND DAMAGE CLAIMS IN SOUTH AFRICA. Centre for Environmental Rights, 2024. https://cer.org.za/wp-content/uploads/2024/03/CER-Loss-and-Damage-Opinion-28.2.2024.pdf?x21779.

Wikipedia

{{cite report |last1=McConnachie |first1=Chris |last2=Raqowa |first2=Ziphozihle |last3=Mutemwa |first3=Deborah |title=OPINION for THE CENTRE FOR ENVIRONMENTAL RIGHTS concerning THE POTENTIAL FOR CLIMATE LOSS AND DAMAGE CLAIMS IN SOUTH AFRICA |publisher=Centre for Environmental Rights |date=29 February 2024 |url=https://cer.org.za/wp-content/uploads/2024/03/CER-Loss-and-Damage-Opinion-28.2.2024.pdf?x21779 |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{mcconnachie2024opinion, author = {McConnachie, Chris and Raqowa, Ziphozihle and Mutemwa, Deborah}, title = {{OPINION for THE CENTRE FOR ENVIRONMENTAL RIGHTS concerning THE POTENTIAL FOR CLIMATE LOSS AND DAMAGE CLAIMS IN SOUTH AFRICA}}, institution = {Centre for Environmental Rights}, year = {2024}, month = feb, url = {https://cer.org.za/wp-content/uploads/2024/03/CER-Loss-and-Damage-Opinion-28.2.2024.pdf?x21779}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }