The cheapest climate defence we have is in the ground

South Africa's legal framework is increasingly recognizing natural ecosystems—such as wetlands, grasslands, and rivers—not merely as environmental amenities, but as indispensable infrastructure for climate defense and resilience. While the Constitution and key environmental statutes like NEMA, NWA, and NEMBA provide a robust foundation for their protection, the recent enactment of the Climate Change Act 22 of 2024 marks a pivotal moment. This legislation offers a critical opportunity to explicitly integrate nature-based solutions into national climate policy, moving beyond an implicit understanding to a proactive, legally mandated approach that leverages these ecosystems for climate mitigation and adaptation, thereby enhancing the country's overall climate resilience.

The assertion that our wetlands, grasslands, rivers, and the wildlife that sustain them are not a luxury but integral to solving urgent problems resonates deeply within the discourse on climate change and environmental law. This perspective, highlighted by the Mail & Guardian, underscores a critical shift in understanding: natural ecosystems are increasingly recognized as vital 'green infrastructure' or 'nature-based solutions' (NbS) essential for societal well-being and climate resilience. In a country as ecologically diverse and climate-vulnerable as South Africa, the legal recognition and robust protection of these natural assets become paramount, moving beyond traditional conservation paradigms to embrace their functional role in climate defense.

This article explores the evolving legal landscape in South Africa concerning the protection of these critical ecosystems, examining how existing legislation and the recently enacted Climate Change Act 22 of 2024 provide a framework for leveraging them as climate defense mechanisms. It argues that while a foundational legal basis exists, a more explicit, integrated, and proactive approach is required to fully harness the climate adaptation and mitigation potential of South Africa's natural capital. For legal practitioners, understanding this evolving nexus between environmental protection and climate resilience is crucial for effective advocacy, compliance, and strategic planning in an era of escalating climate impacts.

The bedrock of environmental protection in South Africa is Section 24 of the Constitution of the Republic of South Africa, 1996, which enshrines the right to an environment that is not harmful to one's health or well-being, and mandates the state to protect the environment for the benefit of present and future generations through reasonable legislative and other measures. These measures include preventing pollution and ecological degradation, promoting conservation, and securing ecologically sustainable development. This constitutional imperative has led to a 'plethora of environmental legislation' since 1994, forming a comprehensive, albeit sometimes fragmented, legal framework.

Central to this framework is the National Environmental Management Act 107 of 1998 (NEMA), which serves as the overarching statutory framework for environmental governance. NEMA establishes principles for sustainable development, including the 'duty of care' (Section 28), requiring individuals and entities to prevent, minimize, and rectify environmental degradation. It also declares that the environment is held in public trust for the people, and its beneficial use must serve the public interest. Complementing NEMA are specific environmental management acts (SEMAs). The National Water Act 36 of 1998 (NWA) is critical for rivers and wetlands, defining wetlands and establishing the Minister as the public trustee of all water resources, with a duty to ensure their sustainable and equitable management and protection. The National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) focuses on the conservation and sustainable use of biodiversity, including the protection of threatened ecosystems like grasslands and wetlands, and the regulation of activities impacting them. Furthermore, the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPAA) facilitates the establishment of protected areas, including through the Biodiversity Stewardship Initiative, which can encompass critical grasslands and wetlands.

While South Africa's existing environmental legislation provides a strong foundation for protecting ecosystems, their explicit recognition and integration as 'climate defense' or 'nature-based solutions' has largely been implicit. Wetlands, for instance, are legally protected for their roles in water quality, flood control, and as water sources, but their explicit function in climate adaptation, such as buffering against extreme weather events, is not always foregrounded in policy or legal instruments. Similarly, grasslands, vital for water production and biodiversity, often receive protection through general conservation measures rather than specific climate resilience strategies. A notable gap exists in the specific legal protection of 'Strategic Water Source Areas,' which, despite supplying 50% of the nation's freshwater, currently have only 13% under formal protection, highlighting a need for more targeted legal tools.

The recent enactment of the Climate Change Act 22 of 2024 represents a significant development, aiming to provide a comprehensive legal framework for South Africa's climate response, including mitigation and adaptation strategies. The Act mandates public bodies to review and align their policies with climate change considerations and emphasizes a 'just transition' towards ecologically sustainable economies. Crucially, the Act's application is guided by NEMA's environmental management principles, which inherently support ecosystem protection. However, the effectiveness of the Climate Change Act in explicitly mainstreaming nature-based solutions as a primary climate defense strategy will depend heavily on the specific regulations and implementation plans that follow. While the Act provides a mandate for adaptation, the detailed articulation of how ecosystem protection and restoration will serve as explicit climate infrastructure within these plans remains to be fully developed.

South African courts have played a vital role in upholding environmental rights, often balancing them against socio-economic development. Cases such as *BP Southern Africa v MEC for Agriculture, Conservation & Land Affairs* affirmed the judiciary's role in determining 'reasonable measures' for environmental protection under Section 24(b) of the Constitution. More recently, the *Endangered Wildlife Trust and Another v Director-General (Acting) Department of Water and Sanitation and Another* [2025] ZASCA 69 case, while ultimately dismissing an appeal on factual grounds, demonstrated judicial engagement with the protection of wetlands in the context of water use licensing. A landmark decision in *African Climate Alliance & Others v. Minister of Mineral Resources and Energy & Others* (December 4, 2024) further underscored judicial willingness to enforce Section 24 in climate-related matters, declaring a government plan for coal-fired power unlawful due to insufficient consideration of human rights and environmental impacts. These judgments, while largely anthropocentric in their interpretation of Section 24, lay the groundwork for a more expansive understanding that could embrace the intrinsic value of ecosystems as climate defense. The growing discourse around 'Rights of Nature' in South Africa, which seeks to move beyond an anthropocentric view to recognize ecosystems as rights-bearing entities, could further strengthen the legal standing and protection of these critical natural assets.

South Africa possesses a robust, constitutionally entrenched legal framework for environmental protection, which implicitly supports the role of natural ecosystems in climate defense. The National Environmental Management Act, National Water Act, and National Environmental Management: Biodiversity Act provide significant tools for safeguarding wetlands, grasslands, and rivers. The recent Climate Change Act 22 of 2024 offers an unprecedented opportunity to explicitly integrate nature-based solutions into the country's climate response, moving beyond a reactive approach to one that proactively leverages these ecosystems as essential climate infrastructure.

For legal practitioners, the imperative is clear: to advocate for and ensure the explicit recognition and integration of nature-based solutions within the regulatory instruments and implementation plans flowing from the Climate Change Act. This involves leveraging existing provisions under Section 24 of the Constitution, NEMA's duty of care, and the specific protections afforded by NWA and NEMBA. Practitioners should closely monitor the development of regulations under the Climate Change Act, engage in climate litigation that champions ecosystem-based approaches, and explore opportunities for a more ecocentric interpretation of environmental rights. By doing so, the legal profession can play a pivotal role in securing the 'cheapest climate defense we have' and ensuring a more resilient and sustainable future for South Africa.