So far as I know, the first possible basis for suing the government/Eskom/Sasol over their various contributions to climate change would probably be the constitution, which provides for something we clearly don’t have at present. Section 24 of the Bill of Rights:
Everyone has the right
• to an environment that is not harmful to their health or well-being; and
• to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that:
• prevent pollution and ecological degradation;
• promote conservation; and
• secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
When I raise this issue with people, they often mumble about this probably not being enough on which to base legal action, though it seems pretty robust and unequivocal to me.
There’s another possible avenue, though I’m not certain of the basis of this in South African law. The precedent, alone, is fascinating and inspiring:
Relying on a federal public nuisance theory, and citing United States Supreme Court precedent that dates back one hundred years, the California Attorney General sued companies in the auto industry and the power industry for their contributions to global warming. These two industries are among the largest sources of greenhouse gases in the world. The case against the auto industry has been resolved; the case against the power industry is still pending.
This is rather like our South African directorate of public prosecutions, or whatever they now call themselves after various purges, suing Sasol, Eskom and the mining industry for their contributions to climate change and the destruction of our water security. Can you imagine that? No, we probably can’t, our imaginations are too stunted by pollutants.