THE LEGAL RESPONSIBILITIES OF LOCAL GOVERNMENTS IN THE ADAPTATION AND MITIGATION OF CLIMATE CHANGE IN SOUTH AFRICA THROUGH THE PRINCIPLE OF SUBSIDIARITY

This paper examines an overview of the foundation and evolution of climate change awareness in local governments in South Africa. Municipalities in South Africa have a constitutional obligation to promote and protect the environment and thereby to take action to mitigate and adapt to climate change. The author explores the idea that to be more sustainable as a municipality and to provide an environment that is not harmful to present and future generations, the evolving legislation should be interpreted and applied. Local governments in South Africa are bound by national legislation as well as various environmental and local government laws. South African municipalities are subject to Schedule 4(B), read with section 156(1), of the Constitution, which states that municipalities (local government) have the power to execute law-making and executive powers. The duty to provide every person with an environment that is not harmful to his or her health or well-being of the benefit for present and future generations is prolonged in section 4 of the Local Government: Municipal Systems Act 32 of 2000 (hereinafter the Systems Act). Arguably, climate change adaptation will be best managed by provinces and local governments. This can be achieved by the adoption of the Principle of Subsidiarity. The Principle of Subsidiarity means that the national government should not exercise functions that can be exercised best by a smaller and lesser body such as a local government. This principle can be explained to stipulate that governance should take place as close as possible to the citizens. Therefore, when implementing the Principle of Subsidiarity, the state shall only take action in so far as the objectives of the proposed action cannot be effectively performed by the communities. Legislation and case law must be understood within the context of mitigation and adaptation in the climate sector and how local government with the Principle of Subsidiarity can achieve this objective. The paper presents the environmental impact of climate change and how the local government dispensation can address this phenomenon through the notion of developmental local governments.