Children’s rights and climate action: Assessing the suitability of South Africa’s domestic normative framework

 Nimrod Muhumuza
 LLM (Pretoria) LLB (Makerere)
 LLD candidate, University of the Western Cape, South Africa
 https://orcid.org/0000-0002-2905-9976
 This email address is being protected from spambots. You need JavaScript enabled to view it.

 I wish to acknowledge the research assistance by Nana Koomson. The article is based on the author’s LLD thesis. I also extend my gratitude to my LLD supervisor, Prof Benyam Dawit Mezmur, for his guidance throughout the process.

 Edition: AHRLJ Volume 26 No 1 2026
 Pages: 1 - 33
 Citation: N Muhumuza ‘Children’s rights and climate action: Assessing the suitability of South Africa’s domestic normative framework’ (2026) 26 African Human Rights Law Journal 1-33
 http://dx.doi.org/10.29053/1996-2096/2026/v26n1a1
 Download article in PDF

Summary

South Africa boasts one of the most progressive, elaborate and consultative climate governance frameworks in the Global South. However, children, who are among the groups most acutely affected by climate change, remain largely invisible to the country’s climate law, policy and decision-making architecture. This article examines South Africa’s normative framework to determine whether it adequately protects and promotes children’s rights in the context of climate action. The article argues that, despite robust constitutional guarantees and binding international and regional obligations, such as those under the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, the existing framework does not systematically integrate children’s rights into the country’s climate response. The article draws on these normative standards and the guiding principles of non-discrimination, the best interests of the child, child participation, access to information, impact assessment and the right to life, survival and development to assess South Africa’s domestic law and policy. The article concludes that significant normative and practical gaps persist and proposes targeted reforms to embed children’s rights at the centre of climate governance, thereby advancing equitable, effective and intergenerationally just climate action in South Africa.

Key words: climate change; climate governance; children; rights; South Africa

1 Introduction

Climate change is the defining crisis of the twenty-first century, threatening the enjoyment of a broad range of human rights and posing profound risks to children, who are uniquely vulnerable to its impacts.1 Despite their disproportionate exposure to climate-related harms and their recognised agency as rights holders, children remain peripheral to most states’ climate responses, including those of South Africa.2 While the country has enacted a sophisticated corpus of environmental law and policy and enshrined extensive children’s rights protections in its 1996 Constitution, its climate change governance continues to exclude them and to neglect their specific rights and needs. This article addresses this gap by examining whether South Africa’s normative framework adequately protects children’s rights in the context of climate change. The article argues that, although South Africa’s constitutional and statutory landscape provides a strong foundation, its implementation fails to fully operationalise a children’s rights-based approach (CRBA).3 The CRBA is drawn from the United Nations Convention on the Rights of the Child (CRC), the African Charter on the Rights and Welfare of the Child (African Children’s Charter) and South Africa’s 1996 Constitution. A children’s rights approach requires climate action to be designed, implemented and evaluated in light of children’s specific rights, duties and vulnerabilities.4 It requires states to ‘take affirmative measures to respect, protect, promote, and fulfil’ children’s rights and integrate their rights in all climate mitigation and adaptation.5

Climate change intersects with South Africa’s entrenched socio-economic inequalities, historical legacies of colonialism and apartheid, and structural poverty, all of which exacerbate children’s exposure to environmental and climate harm.6 These intersecting crises undermine not only children’s rights to life, health, development and education, but also broader principles of intergenerational justice and equity.7 A CRBA offers a normative and analytical framework through which the adequacy of state responses can be assessed and improved.8

The article proceeds as follows: First, it outlines the country’s current climate profile before turning to the applicable normative standards on children’s rights. It subsequently situates South Africa’s climate governance within its historical and socio-political context to demonstrate how historical and structural inequality shapes children’s vulnerability to climate harm. The article illustrates how this legacy contributes to children’s absence from the country’s climate governance architecture. It then evaluates the normative foundation for a CRBA by examining the legal and policy framework drawn from CRC, the African Children’s Charter and the country’s domestic legislation, identifying points of alignment as well as gaps in practice and drawing on judicial developments to illustrate both. This framework is undergirded by the principles of non-discrimination, the best interests of the child, child participation, access to information, impact assessment and the right to life, survival and development. The article concludes by reflecting on how these insights can inform a more deliberate integration of children’s rights into South Africa’s climate governance architecture. It then provides brief recommendations for reforms needed to embed a children’s rights-based approach in South Africa’s climate governance.

2 South Africa’s current climate change profile

South Africa’s children are at high risk of and vulnerable to the impact of the climate crisis. A United Nations Children’s’ Fund (UNICEF) study of 163 countries ranks the country at seventy-second in terms of risk, with water scarcity, soil and water pollution having a particular impact on children affected by poverty and poor nutrition.9 The South African government acknowledges that a failure to limit the temperature increase to below 2°C will be significant and catastrophic (although projections now indicate that this is a conservative estimate and that the planet will warm up by between 3 and 4°C).10 On the current trajectory, the South African coast and interior will warm by 1 to 2°C and 2 to 3°C, respectively. The government projects that by 2100, warming will reach around 3 to 4°C along the coast and 6 to 7°C in the interior.11 The government admits that on these trends, ‘life as we know it will change completely’. Parts of the country will become much drier, and increased evaporation will ensure an overall decrease in water availability.12

This will significantly affect child health and hamper South Africa’s water-intensive economic sectors, such as mining and electricity generation. The country is home to the biggest single-point emitter of carbon dioxide in the world.13 SASOL’s Secunda plant, located in Mpumalanga, emits an estimated 56,5 million tons of greenhouse gases (GHG) annually – exceeding the individual totals of more than 100 nations. Secunda is indicative of South Africa’s complex, yet often troubled, relationship with coal. SASOL is also the world’s largest producer of coal-to-chemicals and fuels.14

Residents living near the plant are acutely aware of the short-term effects of the poor air quality it causes. However, they also appreciate the economic opportunity the plant brings to a country where official figures put unemployment at 35 per cent, the highest globally.15 Mpumalanga is one of the world’s largest air pollution hotspots, with sources including emissions from coal-fired power stations, petrochemical plants, metal smelters and mines.16 An estimated 10 000 premature deaths occur each year, which are directly attributable to air pollution in the region.17 The government commissioned two studies in 2016 and 2019, which demonstrated that the emission limits imposed on companies are insufficient, particularly for children. The government inexplicably chose not to disseminate those findings widely.18 The SASOL study highlighted the limited research on the potential relationship between air quality and related respiratory health outcomes among adolescents in South Africa.19

3 Historical and contemporary context and the children-climate nexus in South Africa

South Africa’s response to the climate crisis must be understood against the background of complex historical and socio-political dynamics that continue to shape contemporary environmental governance.20 Colonialism and apartheid profoundly disrupted people’s relationship with land and nature, dispossessed indigenous communities, and entrenched spatial and socio-economic inequalities that persist today.21 These historical injustices created patterns of environmental harm and exclusion that disproportionately affect vulnerable populations, including children, and continue to shape how the state and civil society conceptualise and implement climate policy.22

Since 1994, successive democratic governments have undertaken substantial legal and institutional reforms aimed at redressing these inequities and promoting environmental justice.23 Section 24 of the Constitution of the Republic of South Africa, 1996 (Constitution) guarantees everyone the right to an environment that is not harmful to their health or well-being, while section 28 affirms the paramountcy of children’s best interests and their rights to basic nutrition, health care and social services. These constitutional guarantees are complemented by an elaborate body of environmental legislation and policy frameworks, including the National Environmental Management Act, the National Climate Change Adaptation Strategy and the Climate Change Act.

Yet, despite these advances, South Africa’s climate response has struggled to embed children’s rights as a key organising principle of its climate response.24 Climate governance remains dominated by macro-economic and energy policy considerations, particularly the imperative of balancing decarbonisation with economic growth and development.25 Powerful interests, particularly those tied to coal-based energy production and the Minerals-Energy Complex (MEC), continue to shape national policy, slowing the transition to low-carbon pathways and constraining the integration of rights-based approaches.26 The MEC has also been described as a ‘barrier to the society’s balanced development and also a threat of great magnitude to the local and global environment’.27 Political contestation, capacity constraints and uneven policy implementation further undermine efforts to address the structural vulnerabilities that amplify climate impacts on children.28

This context helps explain why children remain largely invisible in South Africa’s climate change discourse. Historical patterns of exclusion intersect with contemporary political economy dynamics to marginalise children’s voices and interests in environmental governance. As a result, key policy documents rarely mention children explicitly, and mechanisms such as child rights impact assessments or formal participation processes are absent. Understanding this historical and structural background is essential to situating the normative and institutional gaps that this article interrogates and to charting a path towards a climate governance framework that is both rights-based and child-centred.

To properly assess South Africa’s domestic legislation and its (in)ability to address children’s rights, it must be understood in the context of its overall purpose: to be a liberatory framework addressing the country’s centuries-long history of colonialism and apartheid, anchored on environmental justice.29 Environmental justice denotes the fair and equal access to, use of, and benefit from environmental resources and the natural environment by all people, as well as the equal distribution of environmental pollution.30 The history of environmental conservation and the dynamics shaping South Africa’s climate action today are inextricably linked to its people’s relationship to the land which, in turn, was shaped by the authority, perceived or actual, they possessed over it. This exercise is essential because some scholars and well-meaning technocrats in the field tend to misrepresent and obscure Africa’s experience and contribution to ecological preservation.31

3.1 Pre-colonial environmental conservation and its relevance to children’s rights and climate action in South Africa

Children are not prominently featured in the literature on environmental histories in South Africa.32 Their participation in ecological practices is primarily derived from their involvement in community-wide activities aimed at preserving the environment and ensuring group continuity.33 In pre-colonial African societies, the definition of childhood went beyond the Eurocentric delineation of chronological age underpinning the present framework for children. African societies used appellation or nomenclature, membership of a social group such as an age set or age grade, various initiation and scarification rituals, and outward signs of puberty or sexual maturity to delineate childhood.34

The Nguni age-grade system originated partly due to the environmental consequences and natural disasters resulting from a series of migrations.35 Young men were enlisted into military regiments based on age sets to perform civic and military tasks aimed at containing political and environmental crises, including prolonged droughts and deforestation.36 Greaves argues that by keeping groups of individuals of a certain age away from their homesteads, the Zulu King, Shaka, could effectively balance reproduction through birth control against the deteriorating environmental conditions caused by overpopulation.37

Environmental factors significantly impacted childhood expe-riences in pre-colonial South African societies. For instance, despite the duty to respect elders, when disasters such as drought diminished young people’s birthright, this hierarchical respect could be frayed or breached.38 Zulu youths rose against the community authorities, protesting the imposition of a poll tax when, in the late nineteenth century, the rinderpest epizootic killed over 90 per cent of the region’s cattle.39 Beinart and Coates observe that among the San people of Southern Africa, women and children were engaged in agrarian practices of guarding crops and scaring animals away.40

3.2 Apartheid, environmental conservation and children’s rights in South Africa

The apartheid period, during which the South African minority white-led government imposed legislated discrimination, has had far-reaching and enduring impacts on how today’s society and government approach children’s involvement and participation in climate governance. As Steyn observes, in response to the apartheid policy, South Africa was isolated and excluded by the rest of the international community from participating in global environmental initiatives, including the United Nations (UN) Conference on the Human Environment in Stockholm in 1972.41 This, according to Steyn, was responsible for the apartheid government’s inability to keep up-to-date with critical normative changes that occurred in the environmental rights arena in the international arena.42 However, it is doubtful that South Africa’s participation would have had a meaningful impact on the relationship between the environment and its non-white population.43 Conservation came to be seen by black South Africans as the preserve of ‘particular races, specifically whites, and persons belonging to the “upper class” such as the elite and those in positions of power or authority’.44 During this period, children were relegated from an active to a passive interaction with their environment.45 The avenues for children’s participation in environmental utilisation and conservation, such as the age-grade/set system, were closed.46 The introduction of a cash economy required young people to make their labour available to their parents or their parents’ employers for subsistence, radically altering children’s relationship with society and the land.47 Children who could previously literally live off the land had to fend for themselves on township streets or in the hostile rural areas to which colonial and apartheid governments had forcibly relocated them.48 Further, Khan observes that the inhibiting effect of ‘Bantu education’ on the development of African children also had consequences for the environmental sector since the resultant widespread illiteracy and semi-literacy presented a major obstacle to the development of an aware, informed public, able and willing to participate in environmental decision making.49 This historical marginalisation of children’s agency in relation to land and environment under colonialism and apartheid continues to shape their present-day invisibility in South Africa’s climate governance frameworks.

3.3 Democratic South Africa, children and the environment

South Africans would, through felling apartheid, create the enabling political space for civil society to expand their advocacy to include environmental justice as part of democratic South Africa’s cornerstones.50 According to Khan, ‘the traditional notion that equated “conservation” with the protection of wildlife and the preservation of the natural environment began to give way to a more holistic approach embracing economic and political aspects as well as ecological concerns’.51

Civil society demanded that environmental issues be considered in relation to the basic needs of human beings and that human beings’ rights to a clean, safe and healthy environment be recognised as a legitimate environmental goal.52 Democratic South Africa saw the beginning of the application of a CRBA to children’s issues, with a shift from the violence of apartheid to the strong protections of the Constitution and state organs. However, children’s rights and the environment remain underexplored by both civil society and the state.53

Despite the numerous health risks associated with climate change for South Africa’s children and adolescents, the Department of Environmental Affairs’ National Climate Change Adaptation Strategy does not mention children at all.54 Although the National Department of Health’s draft National Climate Change and Health Adaptation Plan (2020-2024) mentions children, it does not recognise that children’s vulnerability and exposure to risk factors require targeted interventions and strategies. As this article argues, climate action for children in South Africa must be based on a sound understanding of the country’s history and an analysis of the conditions of those previously institutionally and structurally alienated from the environment.55 With that background, this study assesses South Africa’s domestic framework on children’s rights in the context of climate change.

4 Normative framework for children’s rights in South Africa

South Africa’s tumultuous political history of colonialism and apartheid, with the attendant gross human and children’s rights violations, provided the foundation for enacting what scholars and activists considered one of the most progressive constitutions in Africa.56 For children, especially, the 1996 Constitution was a watershed moment, marking the first time that children’s rights were robustly and comprehensively recognised by what has been described as ‘a powerful children’s rights clause’,57 in the express language of the country’s Constitution. 58 Section 28 partly provides as follows:

Every child has the right –

1. to a name and a nationality from birth;
2. to family care or parental care, or to appropriate alternative care when removed from the family environment;
3. to basic nutrition, shelter, basic health care services and social services;
4. to be protected from maltreatment, neglect, abuse or degradation;
5. to be protected from exploitative labour practices;

…

9. not to be used directly in armed conflict, and to be protected in times of armed conflict.

The provision does not contain explicit environmental or climate change protections. Nevertheless, the requirement to provide socio-economic and political services to children leads to the inevitable conclusion that the environment, including the climate system, must be protected. A study on South Africa found that for poorer segments of the population, productivity and wages decline as temperatures increase.59 In comparison, the impact on richer segments is less significant due to their greater adaptive capacity.60

Thus, climate action cannot be ‘a marginal concern’ or one on a ‘long laundry list’ of issues on the government’s agenda for children.61 The South African Constitutional Court has acknowledged the inextricable link between economic, social and human development and the environment, albeit through an anthropocentric lens.62

In other words:63

Economics and ecology must be completely integrated in decision-making and law-making processes not just to protect the environment, but also to protect and promote development. Economy is not just about the production of wealth, and ecology is not just about the protection of nature; they are both equally relevant for improving the lot of humankind.

Given their importance as pillars of the children’s rights framework and as interpretative tools, the guiding principles of non-discrimination, the best interests of the child, child participation, access to information, impact assessment, and the right to life, survival and maximum development will provide the framework through which South Africa’s climate change legislation is analysed. These principles are drawn from CRC, the African Children’s Charter, to which South Africa is a signatory, and the country’s domestic framework. They represent the foundational obligations that states must integrate into all actions affecting children, thereby providing the normative yardstick against which South Africa’s climate framework is assessed.64

4.1 Non-discrimination

The principle of non-discrimination is prominently ensconced in South Africa’s legal system as one of the pillars of the country’s democratic dispensation. South Africa’s 1996 Constitution prohibits discrimination on a comprehensive list of grounds, including age.65 It decrees that everyone is equal before the law.66 Some protections against discrimination are also included in the Children’s Act, albeit less comprehensively.67

In the context of climate change in South Africa, this principle has substantive and procedural relevance. It is vital to ensure climate change-related decisions are reached as fairly and justly as possible. Having been systematically excluded from any decision-making process, including those concerning the environment, procedural fairness is crucial to ensure that children’s voices are included in implementing South Africa’s climate action.68 In this regard, the anti-discriminatory provisions and legislation must be read in conjunction with the Promotion of Administrative Justice Act 3 of 2000 (PAJA), which is designed to give effect to the right to administrative action that is lawful, reasonable and procedurally fair.69 Climate action decisions must be made in a procedurally fair manner, giving those affected an opportunity to provide their input.70

The South African government must provide a platform for children to participate and be heard in the formulation of climate governance architecture if it is to meet the procedural test for non-discrimination.71 In a case determining the procedural fairness of a decision with the potential to impact the climate system, the South African High Court has held that the climate change impacts of a proposed coal-fired power station are ‘a relevant factor’ that the relevant minister should consider in a decision to approve or deny a permit in terms of the National Environmental Management Act 107 of 1998 (NEMA). As procedural fairness is fundamental to non-discrimination, the judgment reinforces the obligation to include vulnerable groups, including children, in climate governance decisions.72

Substantively, the South African government must ensure that its climate response is non-discriminatory in its outcome.73 The South African High Court has recognised that children, especially those with pre-existing conditions such as asthma, are particularly vulnerable to high air pollution concentrations.74 The air pollution in some parts of the country is responsible for premature deaths, decreased lung function, deterioration of the lungs and heart, and the development of diseases such as asthma, emphysema, bronchitis, tuberculosis and cancer.75

The non-discriminatory impact or outcome of the government’s climate change policies must be measured through a child rights impact assessment.76 It requires the consistent collation and collection of disaggregated data regarding children. The fact that children in rural areas in Mpumalanga suffer more from pollution despite air quality regulations than their urban counterparts speaks to the government’s failure to meet its obligations. The fact that the government attempted to limit the dissemination of reports on this exact issue in the Vaal and Mpumalanga is also concerning.77 It illustrates the weakness of South Africa’s climate change laws and the absence of the government’s political will to address the discriminatory impact on children of its acts and omissions in the context of climate change.78

4.2 The best interests of the child

South Africa’s Constitution is unique in constitutionalising the best interests principle, and the text of section 28 mirrors that of CRC. Section 28(2) provides that the child’s best interests ‘are of paramount importance’. The use of ‘paramount’ in section 28(2) denotes a higher protection standard.79 The principle is considered a ‘right’ and an interpretative tool.80 The principle has been used to measure the adequacy of children’s rights protections, especially in the absence of set standards (or where standards are evolving) as they are with the climate change regime. However, interpretation should be within the limits of legislative and judicial prudence.81

This principle affords children two layers of protection. First, a child’s best interests must be prioritised in every matter affecting the child.82 Second, the principle guides the interpretation of any other constitutional rights, including the right to the environment. Kaime argues that the principle is relevant for environmental rights in two fields: the design of government policy making, which applies to all children as a group, and decisions made about children individually.83

The South African Constitutional Court has used this principle to plug a normative constitutional gap, such as when the Constitution did not specifically address whether minors aged 16 to 17 are subject to minimum sentence legislation.84 The best interests standard was then applied to decide that minimum sentence legislation for minors was unconstitutional.85 In this sense, it is argued that the principle can and should be applied by courts to address children’s exclusion from the normative framework of climate governance in South Africa.

Boshoff rightly argues that, as a rule of interpretation, the best interests principle requires that all the rights affected by climate change – and it is difficult to imagine which rights will not be – must be construed in such a manner that serves children’s best interests.86 CRC, the African Children’s Charter and the South African Constitutional Court have all highlighted the interdependence of children’s rights.87 Because climate change will, directly and indirectly, affect all the rights guaranteed to South Africa’s children under the Constitution, any response to this phenomenon should, as a matter of law, consider the best interests principle.88 South Africa’s government is duty-bound to address climate change with the urgency and thoroughness it requires, as it is in the best interests of its children to do so: It guarantees their survival, protection, and development.89

Children’s best interests are not served by unbridled greenhouse gas emissions, which the government has admitted will be catastrophic for their health and their ability to live on a habitable planet.90 Furthermore, any decision-making process that fails to consider how children alive today will be affected by the South African government’s inaction or inadequate response to climate change that does not account for the best interests of children. In other words, state actions and omissions that threaten children’s rights, such as failing to mitigate climate change-induced children’s rights violations or actively pursuing measures that contribute to environmental spoliation or the inappropriate exploitation of natural resources, or failing to take adequate action to adapt to climate change, violate the best interests of the child standard.91

The applicants raised this principle, albeit superficially, in The Trustees for the Time Being of the Groundwork Trust & Vukani Environmental Justice Alliance Movement in Action v The Minister of Environmental Affairs & Others (Deadly Air case).92 The applicants contended that the enduring and unsafe levels of air pollution in the Highveld Priority Area violated section 24(a) and the right to have children’s best interests considered paramount in every matter concerning the child.93 Unfortunately, the Court did not address the application of the best interests principle in its final analysis of this case.

4.3 Child participation

South African children have never needed an invitation to participate in addressing the pressing needs of their society, whether political or ecological.94 Their participation in the climate response processes should be viewed from the perspective of this long tradition of active citizen engagement. It speaks to fulfilling their duties to society and their communities as recognised under the African Children’s Charter.95 While these duties are not explicitly outlined in the Constitution, they are reflected in the ubuntu ethic that permeates the country’s normative framework, mediating the relationships between children and other living and non-living members of South African society.96 Nkrumah observes that, in general, the South African state and society have offered children and young people limited opportunities to participate or have ‘a say in the decisions that affect their lives’, especially in the context of climate change.97 The South African Constitution understandably does not contain a provision on child participation as matters of this nature are often left for subsidiary legislation, in this case, the Children’s Act. The Children’s Act provides for the right of a child to participate in all matters that affect them in accordance with their age, maturity and stage of development. It requires the child’s views to be given due consideration.98 The phrase ‘in all matters’ calls for a mechanism that ensures that children are neither passive victims of climate change nor uninterested spectators to climate action.

The African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee) has elaborated on the criteria to be met to ensure children’s meaningful participation.99 The participation mechanisms should be transparent, voluntary, respectful, relevant, child-friendly, inclusive, supported by adult training, safe and sensitive to risk, and accountable.100 Children’s views must be part and parcel of any decision-making process in the personal and public sphere as a matter of right. It is a core principle of South Africa’s NEMA that participation of all interested and affected parties, particularly those that are vulnerable and disadvantaged in environmental governance, must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation.101

NEMA also notes that the vital role of ‘women and the youth’, an inelegant classification often interpreted to include children, in environmental management and development must be recognised and their full participation promoted.102 Some studies indicate that in South Africa, many children understand some of the basic principles of climate change. According to a UNICEF survey, some children can accurately describe the direct causes of climate change, such as the burning of fossil fuels and the release of greenhouse gases.103 Efforts to include children in policy and legislative-making processes, not just on climate action but on all other fronts, however, are still uncoordinated.104 The CRC Committee has recommended that implementing this principle may be achieved through children’s hearings, children’s parliaments, child-led organisations, children’s unions or other representative bodies, as well as discussions at school, among other means.105

The PAJA enhances the requirement for child participation.106 The PAJA can be used to enhance the implementation of children’s rights in the context of climate change by requiring procedural fairness and providing written reasons for decisions with climate change impacts.107 Its relevance might be undermined by a vague understanding and awareness of the law prevailing within government and civil society.108 One government study found that the implementation of the PAJA is not being prioritised or adequately addressed by government departments.109 So far, the PAJA has been used in a manner that demonstrates its potential primarily as a shield against actions by both private and public officials related to corporal punishment in schools and immigration.110 The PAJA has so far been used in litigation by campaigners and advocates to overturn the authorisation of coal-powered projects that could have potentially increased greenhouse gases.111 The petitioners argued that the authorities had not taken into account all relevant factors, including the climate impacts of these projects before they were approved.112

4.4 Access to information

Children’s participation in climate action/response processes follows their ability to access and process the requisite information or data.113 Climate literacy is related to children’s right to freedom of expression and the ability to seek, receive and impart information and ideas.114 Access to and assessment of information allow individuals to understand the effect of climate change on their rights.115 South Africa’s climate action will undoubtedly depend on how well its people, particularly its children, understand the nature, scale and scope of the problem.

In a 2022 study of children from 14 public schools in low-income areas of the resource-rich Western Cape province, 72 per cent of them correctly linked climate change to higher temperatures.116 However, only 60 per cent identified climate change’s anthropogenic origins. According to the study, ‘a few learners’ indicated that they were affected by the impact of climate change, even though 72,9 per cent of them reported difficulties concentrating during hot weather.117 Twenty per cent of the learners believed that climate change was not a serious issue and that mitigation measures were not required.118

The African Children’s Committee has urged states to provide necessary information in a friendly format to children, facilitating their participation, including in the context of climate change.119 Currently, the South African government and civil society are implementing several environmental education programmes, mostly focused on persistent droughts and flooding.120 One of these programmes is the eco-schools programme, aimed at promoting environmental literacy in schools and their surrounding communities, and supporting the incorporation of Education for Sustainable Development (ESD) into the national school curriculum.121 Over 1 100 schools in South Africa are participating in the programme, whose themes include water, waste, energy, nature and biodiversity, lifestyle and healthy living, transportation and climate change.122

As it stands, South Africa will likely miss the Sustainable Development Goals (SDGs) on climate change education and education commitments made in the Lima Declaration on Education and Awareness on Climate Change and the Paris Agreement.123 This is not necessarily a deficiency of the normative framework, but of its implementation. South African formal schooling curricula should feature more environmental education content that allows time for teachers and learners to conduct outdoor experiential learning on environmental issues.124

In South Africa, the media and schools remain the primary sources of information on climate change.125 However, given its focus on short-term news cycles, it is doubtful if this can sustainably engage children over the issues affecting them. Therefore, the South African government must regularly update and disseminate climate-related information, providing affordable, effective and timely access to this information held by public authorities. Regarding the failure to publicise its findings on the Highveld Priority Area, the High Court observed:126

The Minister’s initial failure to disclose her own department’s findings and recommendations is contrary to the special duties of transparency that are imposed on organs of state in constitutional litigation. Organs of state are duty-bound to assist the courts by providing a full and frank account of the material facts where constitutional rights are at risk.

The South African Constitution guarantees freedom of expression, including the freedom of the press and other media, as well as the freedom to receive or impart information or ideas to everyone, including children.127 The absence of regularly updated official disaggregated data on the impact of climate change and climate action on South Africa’s children is a glaring omission on the government’s part and a failure to meet its obligations.

The South African government’s failure to provide official updated disaggregated data on children, their rights and climate change is a breach of international law.128 Such data enable stakeholders, primarily the state, to compare population groups and understand the specific situations of these groups. This information is indispensable to holding the government of South Africa accountable for its climate action priorities.129 This obligation has its premise in article 29 of CRC, but lacks a corresponding provision in South African law. Climate change will radically alter the planet and our way of life. Children, especially, need to be equipped for what lies ahead through the provision of the necessary and appropriate information.130

The UN recommends that environmental education be introduced early in the child’s educational process.131 The same applies to climate-related education. Education should link environmental and sustainable development issues with socio-economic, socio-cultural and demographic issues.132

4.5 Impact assessment

Access to information is closely related to the need to conduct an environmental impact assessment (EIA) and a climate impact assessment. An EIA is a procedure used to guide decision making, provide decision makers with information on the environmental consequences of proposed activities, and require decisions to be influenced by that interpretation.133 EIA is a principle and obligation of international and national environmental law.134 In South Africa, EIAs are required by law before any project that may harm the environment is conducted under the Environmental Conservation Act and the NEMA. For children’s rights, this law requires that environmental impact assessments be conducted before activities that significantly affect the environment are undertaken. The authorities must account for ‘all relevant considerations’. A purposive reading of the law, such as that adopted by the High Court in Thabametsi, in conjunction with the provisions of the Climate Change Act, leads to the conclusion that children’s rights must be included in those assessments.135 Two other tools are emerging as crucial mechanisms to measure the impact of climate change, specifically on children’s rights: climate impact assessments and child rights impact assessments. The African Children’s Committee Working Group on Children’s Rights and Climate Change Action has urged state parties to ‘conduct climate impact assessments on children’s rights and develop data collection methods that are accurate, standardised, and disaggregated, as well as data collection techniques that accurately identify children’s climate risks so that policy can respond adequately to such risks’.136
A climate change impact assessment is a systematic process designed to identify, analyse and evaluate the climate effects of proposed projects, ensuring that these impacts and considerations are factored into project decision making.137 A child rights impact assessment (CRIA) predicts the impact of any proposed law, policy or budgetary allocation that affects children.138

The CRIA should be used to complement ongoing monitoring and evaluation of the impact of measures on children’s rights. It needs to be built into government processes at all levels and as early as possible in developing policy and other general measures to ensure good governance for children’s rights as a measure to realise the child’s best interests. Because they are not required by South African legislation, CRIAs are not mandatory and, as a result, children are often overlooked in the preparation of government policy and legislation.

South African legislation, particularly the Climate Change Act, requires a climate impact assessment (CIA) to be done.139 The Climate Change Act integrates the CIAs into existing planning processes. The Act requires that organs of state, including provincial and local governments, incorporate climate risk considerations and response plans into their existing policy and planning instruments.140 CRIAs have a spotty record of use in the Global South.141 In South Africa, their adoption and use are driven by civil society organisations, such as UNICEF, and its partnerships with national governments.142

The leading decision on CIAs in South Africa is EarthLife Africa NPC & The Trustees for the Time Being of Groundwork Trust v The Minister of Environmental Affairs & Others, also known as the Thabametsi case.143 The applicant challenged the Minister of Environmental Affairs (MEA) decision to grant environmental authorisation for the construction of a 1 200mw coal-fired power station near Lephalale in Limpopo Province. The fifth respondent, Thabametsi Power Company (Pty) Ltd, was to build the power station, which was intended to operate until at least 2061. When complete, the power station would have been among the world’s most carbon-intensive coal power stations and a drain on meagre water resources in the arid Limpopo province.144

The applicant argued that the MEA and its officials were obliged to consider the proposed power station’s climate change impacts before granting authorisation and had failed to do so. The applicant contended that without the CIA, the government’s authorisation was unlawful, irrational, unreasonable, and liable to be set aside under the PAJA. The department argued that no provision in international or domestic law binding on South Africa expressly stipulates that a climate change assessment must be conducted before granting an environmental authorisation for the project.

The South African High Court found that the country’s legislative and policy scheme and framework ‘overwhelmingly support the conclusion that an assessment of climate change impacts and mitigating measures will be relevant factors in the environmental authorisation process, and that consideration of such will best be accomplished by means of a professionally researched climate change impact report’.145

The Court relied on an expansive and teleological interpretation of the NEMA, particularly section 24, which requires the DEA and MEA to consider all relevant factors enumerated in the law when assessing an application for environmental authorisation. Under section 24, the EIA report must contain all information necessary to provide the authorities with a complete picture of the situation. Part of the ‘relevant factors’ is the irrefutable evidence of climate change’s extant and future danger to South African children and broader society, even though these were not explicitly considered in the Court’s judgment.146 The Court also took into account international law, as required by the Constitution, particularly article 4(1)(f) of the United Nations Framework Convention on Climate Change (UNFCCC), which mandates that climate considerations be incorporated into environmental assessments and that state take precautionary measures to anticipate, prevent or minimise causes of climate change.147

While the project’s impact on children was not featured at all in the Court’s reasoning or decision, its teleological approach to statutory interpretation leaves the door open to such considerations being included in feature EIAs. This is especially in light of the growing evidence of the effect of pollution on children in places such as Limpopo itself and Mpumalanga Province.148 It is incumbent upon children and their advocates to bring these factors to the fore in cases such as Thabametsi.149

The limitation of impact assessments is that they impose obligations of process, rather than of result.150 The Thabametsi decision underscores a judiciary willing to interpret environmental statutes teleologically but also highlights the limits of judicial intervention in the absence of explicit legislative mandates on children’s rights. Without statutory requirements for child-specific impact assessments, the courts are left to infer obligations rather than enforce them. Where proof exists that climate and child impact assessments were considered, a coal-fired power station with its impacts on climate change can still be approved. That is not what transpired in this case, as the multinational consortium behind the Thabametsi project withdrew its financial backing, leading to its termination.151

4.6 The right to life, survival and development

Of all the children’s rights or principles that climate change will probably affect, none will be more directly affected than life, survival and development. South Africa has the highest air pollution exposure, driven by greenhouse gas emissions, in sub-Saharan Africa, accounting for over 14 000 confirmed cases annually.152 The majority of those cases are children.153 Coal-powered energy generation is the largest contributor to air pollution in South Africa.154 The World Health Organisation (WHO) has estimated that, in South Africa, 124 out of every 100 000 deaths of children under five are linked to the environment, and congenital environmental disorders (caused by environmental exposures before birth) are increasing.155 South Africa’s Constitution does not provide for a ‘right to life, survival and development’ but does contain a right to life.156 The right to life, survival and development appears in various iterations in the Bill of Rights, such as through the right to health, basic nutrition, and protection from harm, abuse and exploitation.157

The entire Bill of Rights aims to ensure this set of rights. Life, survival and development are mutually reinforcing principles that cannot be realised without one another. They encompass all interventions necessary for a child’s healthy development. The Constitution provides for an unqualified right to life, therefore, the South African government has an obligation to mitigate and ensure children adapt to the effects of climate change. It is the only way to guarantee children’s right to life.158 In Deadly Air, the High Court found that 10 000 premature deaths occur in the Highveld Priority Area, leading to the inescapable conclusion that the levels of air pollution are inconsistent with section 24(a) of the Constitution.159

The South African Constitutional Court has stated that the right to life is the ‘most important’ of all human rights and the source of all other personal rights.160 It urges that the state reflect the primacy of these rights in everything it does because they are the essential content of all rights under the Constitution.161 The right to survival is a flexible and broad concept that encapsulates all the steps a state party must undertake to ensure the healthy development of children.162 It requires the state to take those measures that, at a minimum, ensure a child’s survival. The realisation of socio-economic rights is crucial. These include providing adequate nutrition, safe drinking water, basic health care, and protection from abuse, harm and customs and practices that are prejudicial to the child’s life or health.163

In the context of climate change, this right requires the government to take steps to mitigate the harm it causes to children. Foreign jurisprudence is not binding on South Africa’s judiciary. However, the South African Constitution provides that when interpreting the Bill of Rights, courts ‘may consider foreign law’. Since its establishment in 1994 until the end of 2011, the Court has handed down 437 judgments. More than half of these judgments (223 in total) have cited more than 3 047 foreign cases. Therefore, foreign law, including jurisprudence, is persuasive on South Africa’s courts. This is significant given the ‘environmental blind spot’ and silence exhibited, particularly by the Constitutional Court, regarding the ecological implications of its decisions.164

South Africa’s domestic normative framework provides a progressive constitutional base, supported by teleological jurisprudence and a set of guiding principles rooted in international and regional children’s rights obligations. These features firmly position the country well to integrate a children’s rights-based approach into its climate governance structure. However, the analysis also reveals significant normative and institutional gaps. Children remain largely absent from climate-specific legislation and policy instruments. Mechanisms such as child rights impact assessments are not mandatory. Participation rights, while recognised in principle, are seldom operationalised in climate decision-making processes. Additionally, there is a persistent lack of disaggregated data capable of informing targeted child-centred climate interventions. Without deliberate and structural integration of children’s rights into climate governance, these constitutional promises risk being continually undermined by climate change, and the institutional response to it.

5 Children’s rights, air pollution and climate change: The Deadly Air case

The Deadly Air case illustrates the South African government’s legal obligation to address climate change impacts specifically as they affect vulnerable populations, including children, whose health and well-being are disproportionately impacted by toxic air pollution. The case, eponymously named, challenged the South African government’s acts and omissions that contributed to and led to poisonous levels of air pollution in the Highveld Priority Area.165 The Highveld Priority Area is a 31 000 square kilometre swathe of territory covering the Gauteng and Mpumalanga Provinces. The area comprises some of South Africa’s most polluted towns, including eMalahleni, Middelburg, Secunda, Standerton, Edenvale, Boksburg and Benoni.166 The area is home to 12 of Eskom’s coal-fired power stations, and SASOL’s coal-to-liquid fuels refinery, situated in Secunda, all supplied by numerous coal mining operations. Due to its concentration of industrial pollution sources, residents, including children, experience particularly poor and dangerous air quality. All the parties to the case agreed that the pollution in the area is harmful to human health and well-being – exceeding the National Ambient Air Quality Standards.

At the heart of the dispute were two questions, namely, (i) whether the high level of pollution is a violation of the constitutional right to environment under article 24; and (ii) whether the government/minister was in breach of their duty by failing to promulgate and enforce regulations necessary to bring the pollution levels back within habitable conditions. Part of the uncontroverted evidence before the Court were the government’s reports of 10 000 annual premature deaths, including those of children, which are directly attributable to air pollution in the Highveld Priority Area.167 Reports about the ambient pollution of the area stretched as far back as the 1950s.168 In 2007, the area was declared a ‘priority area’ in terms of the National Environmental Management: Air Quality Act. The designation was required because, according to the government, ‘people living and working in these areas do not enjoy air quality that is not harmful to their health and well-being’.169 It was a recognition that ambient air quality standards are being, or may be, exceeded. Further, the area requires specific air quality management action to rectify the situation.170 These measures had been implemented, but their effectiveness, by the government’s own admission, was inadequate.

The Court found that the right to environment under section 24(a) of the Constitution was immediately realisable because the textual structure of the provision was neither qualified nor subject to progressive realisation based on availability of resources. On the available evidence of the harm in the Highveld Priority Area, and the constitutional provision requiring immediate realisation of the right to environment, the Court found that the levels of air pollution violated section 24(a) of the 1996 Constitution.171

Regarding issue (ii), the Court took a holistic interpretation to section 20 of the Air Quality Act which provides that the responsible minister ‘may’ promulgate regulations necessary for implementing and enforcing approved priority area air quality management plans. The decision on this issue was dependant on whether ‘may’ was a discretionary or mandatory injunction. Court found that in the appropriate circumstances, ‘may’ imposes mandatory obligations on the relevant authority in order to protect and promote constitutional rights and values.172 This was one such case. Having found that the ambient pollution levels violated section 24(a) of the Constitution, it was incumbent upon the minister to take the necessary measures to safeguard the rights of the residents in the area. A failure or refusal to do so was a violation of section 24 of the 1996 Constitution. The matter is now before the Supreme Court of Appeal pending determination.173

Several pertinent issues arise from this ruling on children’s rights in the context of climate change. First, the Court found that based on evidence of harm to vulnerable persons, including children, caused by ambient air pollution in the Highveld Priority Area, there was prima facie evidence of a violation of the right to environment in terms of section 24.174 At the domestic level, in the context of climate change, the causation and attribution barriers to establishing liability for the detrimental effects of climate change do not hold as much sway as they do on the international plane in terms of holding states accountable for acts and omissions within their jurisdictions. In this case, the government was held liable for its acts and omissions in delaying the promulgation of regulations to curb pollution in the area.

The second is the finding that the right to environment is an immediately realisable right not subject to the limitation or qualifier of progressive realisation. The Court rejected the minister’s contention that this right would be realisable with time. It is common cause that the environment requires some time to recover from spoliation. Given the stock-and-flow problem of climate change, even if the emission of greenhouse gases immediately ceased today, the released carbon dioxide will remain in the atmosphere for thousands of years.175 The earth’s surface temperature would require thousands of years to cool and return to the level in the pre-industrial era.176

On a timescale relevant to humans, once released, the carbon dioxide is in our environment essentially forever.177 No court decision will change that. Mitigating emissions today to the levels envisaged under the UNFCC and the Paris Agreement, which aims for 1,5°C above pre-industrial levels, might offer a window of opportunity to allow for adaptation, but the warming will continue nonetheless.178 On the Court’s rationale, this state of affairs violates and will continue to violate the right to environment under section 24 and related children’s rights discussed in this analysis. Immediately realising the right, such as through getting rid of the pollution responsible for climate change, is nearly impossible.179 In the Deadly Air case, the Court does not address these constraints in its decision. If immediately realising the right is impossible, what could be done, immediately?

The Court’s decision on the minister’s failure to enact the necessary enabling regulations is instructive. The Court found that the minister had a legal duty to enact regulations under section 20 of NEMA and to enforce the Highveld Priority Area Air Quality Management Plan.180 To that end, the Court directed the government, through the minister, to prepare, initiate and prescribe the necessary regulations to implement and enforce the Air Quality Management Plan.181 The law and judicial compulsion can require governments to take the necessary steps to mitigate the impact of global warming in the short, medium and long term.182 In the context of climate change, the government’s efforts to take appropriate mitigation, adaptation and remedial action can and should be scrutinised to determine whether they meet South Africa’s children’s rights obligations. The decision demonstrates the judiciary’s potential as a catalyst for rights-based climate action. However, its effectiveness is contingent upon sustained civil society mobilisation and robust enforcement mechanisms, both of which remain underdeveloped.

6 Conclusion

This article has examined whether South Africa’s legal and policy framework adequately protects and promotes children’s rights in the context of the climate crisis. It has shown that, despite the country’s progressive constitutional guarantees and statutory obligations, children remain largely invisible in climate governance. Assessing South Africa’s framework against the guiding principles of children’s rights, namely, non-discrimination, the best interests of the child, participation, survival and development and access to information, reveals significant normative and practical gaps. Laws and policies seldom explicitly address children, and mechanisms to ensure their participation in decision making are underutilised or underdeveloped. Additionally, tools such as child rights impact assessments are often absent. The failure to collect disaggregated data on climate impacts further obscures children’s experiences and undermines evidence-based policy making.

Recent judgments, notably EarthLife Africa and Deadly Air, unequivocally demonstrate the importance of children’s rights in framing climate action. These judgments unequivocally determine that it is unlawful for officials to authorise certain developments without assessing climate risks and impacts, even on children, despite how marginally they are included in these processes. The 1996 Constitution’s liberal rules on locus standi, for instance, and its guarantees of a right to the environment, are critical in this regard. For now, it appears that direct climate-related action will take the form of market adjustments, such as carbon taxes and air quality regulations, which are primarily geared towards the automotive and industrial sectors. It is contended, from a discussion of the international and the national children’s rights framework, that the government is obligated to establish mechanisms and standards to which it can be held to account.

Bridging these gaps requires embedding a children’s rights-based approach at the centre of climate governance. Legislative reform should mandate child rights and climate impact assessments for all major projects and policies. National climate strategies must explicitly integrate children’s rights and establish mechanisms for their meaningful participation in decision making. Strengthening data collection and dissemination, including disaggregated, child-specific information, is essential for monitoring progress and designing targeted interventions. Ultimately, institutional capacity must be strengthened to ensure the effective implementation and enforcement of rights-based climate measures.

This call for reform must be understood in light of the historical trajectory outlined earlier in this article. The colonial and apartheid era exclusion of children from environmental decision making has created enduring patterns of invisibility that continue to influence contemporary climate governance. Furthermore, the deep-rooted influence of the MEC illustrates the persistence of structural political economy constraints that hinder transformative, rights-based climate action. Addressing these legacies is crucial to fulfilling the Constitution’s promise and ensuring that children’s rights are substantively and practically realised.