Judge Dennis Davis blasts government over climate inaction, says courts alone can't save the planet

Daily Maverick

6 days ago

At a recent climate law discussion at Stellenbosch University, former judge Dennis Davis took aim at government inertia on both the environment and the economy, saying the real work lies not in the courts, but in politics.
South Africa's climate crisis is not just about emissions – it's about accountability. And the courts, for all their power, cannot substitute for the political will of a government that has failed to rise to the challenge.
This was the message delivered with characteristic candour by former judge Dennis Davis in a keynote address at Stellenbosch University's Faculty of Law on 28 June 2025.
Speaking at a colloquium on climate change law and green finance, Davis gave a blistering critique of government policy, warning that while civil society and the judiciary have done their part to uphold constitutional rights, it is ultimately the legislature and the executive who must 'just do their job'.
'The South African growth story is nothing more than absolutely disastrous,' he said.
He traced the country's failure to strike a suitable balance between economic growth and environmental protection to a deeper absence of political leadership – and urged a 'serious debate' on the kind of policy South Africa actually needs.
Legal dimensions of sustainable development
The event was jointly hosted by two research chairs in the faculty – the Chair in Urban Law and Sustainability Governance, held by Professor Anél du Plessis, and the Gys Steyn Chair in Financial Regulation, held by Professor Johann Scholtz. Both chairs underscore the university's growing focus on the legal dimensions of sustainable development.
Introducing the keynote, Scholtz described Davis as uniquely qualified to speak on the subject – a jurist, scholar and former director of the Centre for Applied Legal Studies, who handed down landmark judgments on socioeconomic rights, including the seminal Grootboom decision in 2000, which confirmed that socioeconomic rights are not merely aspirational but legally enforceable.
Constitutional prescience
Davis opened with a reminder of South Africa's own legal promise – section 24 of the Constitution, which guarantees the right to an environment that is not harmful to health or wellbeing, and mandates protection of the environment for present and future generations.
'That was in 1996,' he said, 'and I'm not sure anyone drafting it then grasped the immensity of the challenge we face today.'
Citing a 2023 Intergovernmental Panel on Climate Change report, he highlighted the disproportionate toll of climate change on vulnerable populations. 'Between 2010 and 2020, human mortality from floods, droughts and storms was 15 times higher in highly vulnerable regions than in regions with very low vulnerability.'
'Rolls-Royce framework lacking traction'
But recognising rights on paper is not the same as enforcing them. 'One of the great problems in South Africa,' Davis noted, 'is that we're very good at having Rolls-Royce regulatory proposals without the foggiest idea as to how they should be implemented, or what their traction is going to be in practice.'
So where does that leave the courts?
'Lawfare' not enough
Davis pointed to a series of landmark judgments in South Africa as reasons for hope. These decisions, he said, showed that section 24 was more than symbolic – it could be a tool for real change. But that tool had its limits.
'There's a significant limitation to the process of 'lawfare',' he said. 'As attractive as it may be for lawyers to march into court, relying on the judiciary alone will not suffice.'
Civil society, he argued, had played an essential role. The NGOs who brought these cases were 'brave' and 'not prepared to shut up'. But their success only highlighted the failures elsewhere.
Shell case 'a milestone'
A case that looms large for Davis is Sustaining the Wild Coast, in which the courts found in 2022 that Shell's proposed seismic surveys for offshore gas deposits had been authorised without adequate consultation. The court's insistence on meaningful engagement with affected indigenous communities – in their own languages and cultural context – was, for Davis, a milestone in recognising both environmental and human rights.
But he questioned the broader system that allowed such authorisations in the first place. 'To what extent are we talking about intergenerational justice? To what extent are we actually grappling with these issues in economic policy?'
Deep divisions
To illustrate the gap, Davis recounted his recent interview with Minister of Mineral and Petroleum Resources Gwede Mantashe for his television programme Judge for Yourself – a follow-on from his earlier Future Imperfect, the show that first made him a household name for probing some of South Africa's toughest policy questions.
He argued that post-apartheid economic policy had consistently failed to address inequality and unemployment. Instead of inclusive growth, he said, the benefits of development had disproportionately flowed to a small elite, leaving the majority of South Africans 'not just historically disadvantaged but presently disadvantaged'.
According to Davis, Mantashe defended South Africa's pursuit of fossil fuel projects, pointing out that the country's northern neighbour, Namibia, was forging ahead with offshore exploration. By Davis's account, Mantashe argued that if South Africa embraced similar projects, economic growth could have reached 3% or 4%, easing many of the concerns raised by environmental critics.
What troubled Davis most was the minister's proposal for some kind of environmental panel – à la a similar tribunal in Namibia – to expedite approvals and sidestep litigation. 'That is now being considered by Cabinet,' Davis warned. 'It raises profound questions about the extent to which the executive is committed to the rights enshrined in section 24.'
This exchange starkly illustrates the deep division between judicial expectations and executive priorities regarding climate action and economic development.
'Challenge political, not legal'
Davis returned to the principle of intergenerational justice – and the need for politics, not just litigation, to uphold it. He praised the Deadly Air judgment in 2022, in which High Court Judge Colleen Collis compelled the government to improve air quality in Mpumalanga, where most of South Africa's coal-fired power stations are situated. Crucially, the ruling was upheld by the Supreme Court of Appeal in April 2025, with Justice Mahube Betty Molemela confirming that the Constitution could be invoked to protect future generations and that the state bore a positive duty to act.
'And that's the point,' Davis concluded. 'The real challenge is not legal. It's political.'
If South Africa is serious about leaving its children 'a society that's worth living in', he said, it must adopt an economic policy that confronts inequality, poverty and environmental degradation together.
'Presently disadvantaged'
'We have failed to achieve a balance between green growth and the socioeconomic needs of an emerging economy. The vast majority of South Africans are not just historically disadvantaged – they're presently disadvantaged. The question is: what would an economic policy look like if we took these things seriously?'
For now, at least, Davis's answer is clear: 'It's not for the judiciary to manage the process. It's for the legislature and the executive. The rest of us are just squealing at the margins.' DM
Desmond Thompson is a freelance journalist.