This article was first published by De Rebus on 1 September 2025
Regulatory capture occurs when a government entity or regulator is co-opted to serve the special interest of a particular body or group. The government entity or regulator then gives priority to the special interest at the expense of the public interest.
Regulatory capture can occur not only to serve commercial interests of a particular business or economic sector (so-called “rent seeking”). Regulatory capture can also occur to serve an ideological or non-commercial interest.
Even the most well-intentioned promoters of ideological or non-commercial special interests can go too far. They might seek to persuade municipalities to take measures that go beyond the constitutional powers of municipalities.
Take, for example, recent attempts to persuade municipal governments to take specific measures to fight against “climate change”. Combating general climate change is not yet a function or duty of a municipality.
The Constitution states that the objects of local government are restricted to ensuring “the provision of services” and promoting “a safe and healthy environment” in the main. This does not extend to addressing climate change.
A municipality must manage its administration and budgeting to give priority to its community’s “basic needs” and “social and economic development”. Not to combat general changes in the global climate.
The Constitution gives municipalities the right to administer certain listed local- government matters including air pollution, but not climate change.
The Constitution stipulates that the national and provincial governments must assign to municipalities the administration of any listed national or provincial matter which necessarily relates to local government, “if that matter would most effectively be administered locally, and the municipality has the capacity to administer it”. The listed matters include the environment, but not climate change.
Municipal governments can address climate change to a limited extent. A municipality has a constitutional right to exercise “any power concerning a matter reasonably necessary for, or incidental to, the effective performance of its functions.”
Thus, the City of Cape Town has a climate-change strategy which aims at reducing the vulnerability of the municipality area to impacts of climate change and which includes more urban greening, improved water supply, action to reduce storm damage, reduction of fire risks, improved access to public transport, and tariffs which encourage mitigation of climate-change impacts. These measures aim at supporting the City’s statutory functions of providing services and promoting a safe and healthy environment, not at climate change in general.
The City of Cape Town’s climate-change action plan acknowledges that the plan may be ambitious, in that many of its goals are only partly within the control or mandate of local government and that the City must work closely with the national and provincial governments for the plan to be effective.
As said, well-intentioned promoters of ideological special interests could persuade a municipality to take measures that go beyond its powers.
In 2015 an organisation called C40 Cities Climate Leadership Group Inc (“C40”) entered a memorandum of understanding (“MoU”) with the City of Cape Town about greenhouse gas emissions and climate risks. (C40 has similar arrangements with Johannesburg, Tshwane, Durban and Ekurhuleni, apparently.)
C40 is described in its MoU with Cape Town as a nonprofit body incorporated in Delaware and having its registered office in New York City. The MoU states that C40 is “a global network of engaged megacity mayors” who seek to achieve meaningful reductions of greenhouse-gas emissions and climate risks.
The MoU declares that C40 and the City of Cape Town agree to “work together to reduce local greenhouse-gas emissions and climate risks” and to “jointly develop an annual workplan to support this”.
But the MoU stipulates that these arrangements in the MoU are “not binding”.
That stipulation was rightly made. Cape Town cannot acquire new powers by way of an MoU with a global network of engaged megacity mayors. There are no statutory provisions yet in force that authorise the City of Cape Town to address climate change in general.
In July 2024 the Climate Change Act was signed by the President and gazetted as a law. It is declared to be an Act to “enable the development of an effective climate change response”.
This is the first South African statute mainly aimed at responding to climate change. The Act will give effect to the country’s treaty obligations under the 1992 United Nations Framework Convention on Climate Change, which South Africa ratified in 1997.
The Act will impose duties on organs of government and stipulate periods for performing them. Some of the Act’s provisions were brought into operation in March 2025.
Municipal (and provincial) governments cannot act, until after the Minister of Forestry, Fisheries and the Environment has determined climate-change “adaption objectives” and developed “adaptation scenarios” and has then published a “National Adaptation Strategy and Plan”.
The minister must determine the adaption objectives as a guide for developing resilience and adapting to impacts of climate change. He must develop the adaptation scenarios that anticipate likely impacts of climate change and associated vulnerabilities.
Before determining and developing these adaption objectives and scenarios, the minister must consult all Cabinet members whose responsibilities will be affected and all responsible members of the provincial executive councils (“MECs”) whose provinces will be affected.
The minister must also give notice in the Government Gazette and a national newspaper of his intention to determine and develop these objectives and scenarios, with an invitation to the public to lodge representations or objections in 30 days.
The Act gives the minister one year to determine and develop these adaption objectives and scenarios. But the Act’s provisions requiring the minister to determine and develop such objectives and scenarios have not been brought into operation yet.
The reason given for this by the minister is that his Department is developing draft regulations relating to these provisions, some of which are “at an advanced stage” and will be gazetted for public comment soon.
The Act authorises the minister to make regulations to promote effective evaluation of information necessary to determine climate-change vulnerability and foster resilience.
Before making regulations, the minister must consult affected Cabinet members and MECs and give notice in the Gazette and a newspaper of his intention to make the regulations, with an invitation to the public to lodge representations or objections about the draft regulations in 30 days. It could take up to six months to finalise the regulations.
After the regulations are finalised and gazetted, presumably the Act’s provisions requiring the minister to determine and develop climate-change-adaption objectives and scenarios within a year will then be brought into operation.
After the minister has determined and developed the climate-change-adaption objectives and scenarios, the minister must then, in consultation with Ministers responsible for two dozen listed functions ranging from agriculture to sanitation, develop and publish a “National Adaptation Strategy and Plan”. The Act gives the minister two years to publish this National Adaptation Strategy and Plan.
Given that different dates are being fixed for the coming into operation of different provisions of the Act, it may be that the two-year period for the minister to publish the National Adaptation Strategy and Plan will commence only after the minister has determined and developed the climate-change-adaption objectives and scenarios and after a date is then fixed for the coming into operation of the Act’s provisions requiring the minister to publish a National Adaptation Strategy and Plan.
The Act’s provisions for the National Adaptation Strategy and Plan are ambitious.
The Strategy and Plan must achieve the adaptation objectives determined by the minister and provide a directive for adaptation to impacts of climate change. It must reduce vulnerability to the effects of climate change and strengthen resilience to its impacts.
The Strategy and Plan must consider the adaptation scenarios developed by the minister and enhance adaptive capacity. It must provide a coordinated approach to the management of adaptation measures in response to the impacts of climate change by organs of state in all spheres of governments.
Before publishing the Strategy and Plan, the minister must consult affected Cabinet members and MECs and give notice in the Gazette and a national newspaper of his intention to publish it, with an invitation to the public to lodge representations or objections about the draft Strategy and Plan in 30 days.
Only then, within one year after the minister publishes the National Adaptation Strategy and Plan, must a metropolitan or district municipality’s mayor undertake a climate-change “needs and response assessment” for the municipality, as stipulated by the Act. (The provincial MEC responsible for the environment has an equivalent duty for the province.)
The mayor’s needs-and-response assessment must analyse the municipality’s characteristics and climate-change needs, and risks and vulnerabilities that arise. The assessment must identify climate-change-response options and determine measures to implement the required response.
The mayor must consult any organs of state in any sphere of government that will be affected by the proposed assessment. Notice of the proposal must be given in the Gazette and in a newspaper circulating in the area with an invitation to the public to lodge representations or objections in 30 days.
The mayor must then, within two years after undertaking th needs-and-response assessment, develop and publish in the Gazette a climate-change-response “implementation plan” and start implementing it. (The MEC has an equivalent duty for the province.)
The mayor’s implementation plan must be based on his needs-and-response assessment and must include measures to moderate and mitigate harm from impacts of climate change, within the constitutional functions of the municipality.
In short, it could take up to six-and-a-half years or so, but the City of Cape Town will eventually be empowered to respond to climate change.
The Climate Change Act is rightly cautious and procedural about the identifying of appropriate climate-change response measures. Organs of government may, under the Act, be imposing restrictions of as-yet unproven efficacy on economic activity in the name of responding to climate change.
