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Accepted Paper:

The value of substantive climate adjudication in South Africa  
Melanie Murcott (University of Cape Town)

Paper short abstract:

The South African Constitution calls on the judiciary to engage in legal reasoning and interpretation that advances its transformative purpose: i.e. substantive adjudication. The paper explores the significance of this constitutional requirement for the country's growing body of climate cases.

Paper long abstract:

In 2021 and 2022, in the Sustaining The Wild Coast litigation, climate cases seeking to prevent new fossil fuel development along South Africa's coastline have been adjudicated in the courts. In these cases, the courts engaged, to some extent, in substantive adjudication to enforce the environmental right entrenched in the South African Constitution. They did so since substantive adjudication is constitutionally mandated, including by section 39(2) of the Constitution, which imposes an obligation on courts to interpret law in a manner that gives effect to the spirit, purport, and objects of the Constitution, including the social justice imperative contained in the Constitution's the preamble. By virtue of engaging in substantive adjudication, the courts advanced what I refer to as transformative environmental constitutionalism. The courts did so by adopting a justice-oriented framing of the disputes, and recognizing that the environment and people within them exist in a single socio-ecological system. Further the courts upheld the environmental right alongside other intersecting rights, including by engaging with the significant role that Indigenous peoples play in protecting the environment. With a view to contributing to the discourse on whether there is an "African way" to adjudicate climate cases in pursuit of environmental protection, this paper explores the significance of substantive climate adjudication, drawing on insights revealed by the Sustaining The Wild Coast litigation.

Panel Law03
Environmental and climate rights in Africa: what happens when courts have a say
  Session 2 Friday 2 June, 2023, -