The transformative potential of climate change litigation and adjudication in South Africa

Abstract

In this dissertation, the author addresses the following central question: Can transformative adjudication, through transformative environmental constitutionalism, enhance a social justice-oriented approach to climate litigation in South Africa?

One of the foremost assumptions in this dissertation is that climate change is not only an environmental issue; rather, it is an existential issue for humanity that is deeply embedded in notions of (in)justice. Proceeding from the point of departure that climate change is a scientific reality with significant justice implications for human populations and the environment, this dissertation is premised on the following central hypothesis: Transformative climate adjudication is consistent with (and a logical extension of) the legal theory of transformative environmental constitutionalism, which suggests, albeit indirectly, that environmental law disputes ought to be conceived in a manner consistent with an Earth system approach.

The dissertation is structured as follows: Chapter 2 explores the concept of climate litigation and how climate litigation has occurred in South Africa. Chapter 3 examines the legal theory of transformative environmental constitutionalism – as an incident of transformative constitutionalism – as well as its application to climate litigation and adjudication in South Africa. Here, the dissertation discusses and expands on Murcott’s criteria for the framing of environmental law disputes, along environmentally transformative lines. In Chapter 4, the author demonstrates the value of transformative environmental constitutionalism as a legal framework for climate adjudication by conducting a critical analysis of the challenges to Shell’s seismic blasting on South Africa’s Wild Coast. This is followed by a short conclusion in Chapter 5 that reflects on the transformative potential of climate litigation and adjudication in South Africa.