The most catastrophic natural disaster recorded in KwaZulu-Natal — also the worst flood in South Africa for more than a century — has sparked two major lawsuits by insurance companies whose business clients suffered huge flood damage.
The April 2022 floods in eThekwini municipality claimed 544 lives, displaced more than 40,000 people and damaged or destroyed more than 4,000 homes and businesses.
The economic losses were staggering, with major production facilities, logistics routes and informal settlements submerged after record rainfall. Floodwater destroyed machinery and interrupted production in several large companies.
In a legal first, two insurance companies which had to pay out to flooded businesses are suing South African state entities for billions of rand in damages.
They argue the government was negligent in maintaining stormwater infrastructure and this negligence amplified the scale of the loss arising from the disaster.
We are climate and disaster legal researchers and believe these cases raise important questions about who should bear the loss associated with increasingly extreme climate-related events.
As climate-related risks escalate, will insurance companies continue to provide cover, raise premiums or start excluding climate risks?
A growing risk: climate-driven disasters in South Africa
South Africa’s climate ranges from arid and semi-arid in the west to subtropical in the east. This makes the country particularly vulnerable to shifts in regional climate patterns.
It’s already experiencing warming at twice the global average. This has led to an increase in the frequency, intensity, duration and timing of many extreme weather events such as floods, droughts, fires and large storms.
Read more: How insurers can get better at responding to natural disasters
Other disaster risks include lighting strikes, heatwaves, hail damage, wind storms and sea level rise. Health-related disasters may also increase.
In the case of the April 2022 floods, scientists have linked the extreme rainfall to global heating. The rainfall over the two flooding days in Durban (in eThekwini) was 40% to 107% heavier than it would have been before the climate began heating up.
Read more: South African floods wreaked havoc because people are forced to live in disaster prone areas
The climate drivers of this intensified rainfall included a warmer atmosphere (which holds more moisture), warming of the Agulhas ocean current (which increases ocean evaporation and feeds moisture into coastal storms) and changes in wind patterns into KwaZulu-Natal.
This evidence offers a compelling link between climate change and the severity of the flooding, but it doesn’t guarantee success in court for the insurance companies.
From localised flood damage to multi-million rand lawsuits
South African courts have previously dealt with cases of flood damage caused by neglected infrastructure. These cases have been much smaller — typically about damage caused by burst pipes or localised blockages.
For example, in 2017, three businesses successfully sued Ekurhuleni municipality for failing to maintain a river near their properties. The court ordered the municipality to take reasonable steps to restore the local river, including measures to prevent and mitigate flooding of property.
The latest cases related to the 2022 Durban floods are different. The scale of the claims is enormous. Toyota South Africa Motors’ insurer (Tokio Marine and Nichido Fire Insurance) launched a claim in July 2025 for R6.5bn in damages from several government departments and entities.
These organs of state include Transnet, the KwaZulu-Natal transport department and the eThekwini municipality.
The claim alleges all three organs of state failed to maintain a canal which should have been able to channel stormwater away from the industrial area where Toyota’s factory is based. Instead, the factory flooded and had to shut down for three months. About 4,000 vehicles had to be scrapped. Though no jobs were lost, 7,500 employees had to take a 35% salary cut.
The municipality is responsible for managing stormwater, but Transnet and the transport department have probably been cited in the case for their infrastructure management responsibilities.
Read more: Measuring the economic impact of cyclones in Madagascar
The second case was launched in August 2025. The insurers of packaging companies Corruseal Properties and Corruseal Corrugated KZN filed a claim of R540m against the same defendants, also over damage from the 2022 floods.
These two cases differ from past smaller claims because of the clear climate attribution and the scale of the lawsuits. However, to recover huge insurance losses, the insurance companies will have to surmount procedural and substantive hurdles that have tripped up other claimants in the past.
Procedural hurdles
The insurance companies will need to comply with the law that sets out the procedural requirements for suing state entities or government departments.
Specifically, the law says organs of state can’t be sued unless they’re given written notice within six months of the debt becoming due.
In a previous case when a Durban hotel flooded due to the eThekwini municipality’s alleged failure to maintain infrastructure, the court refused to allow a lawsuit against the government 15 months after the incident took place. As a result, the property owner could not proceed with the claim.
Read more: Climate justice for Africa: 3 legal routes for countries that suffer the most harm
The insurance companies will therefore need to prove they notified all three state departments within six months of knowing they were responsible for the flood damage.
Another hurdle they’re likely to face is proving which of these organs of state were legally responsible for maintaining the stormwater infrastructure which overflowed and caused the damage.
Substantive hurdles
The law of delict sets out how a person is legally responsible to pay damages because they’ve harmed another through wrongful or careless actions.
This means the two insurers’ cases are delictual claims. To win, the insurance companies have to prove:
1. Conduct: The insurance companies must prove the flood damage was connected to what the three government bodies did or failed to do — even though the main cause was a climate-related disaster.
2. Causation: The insurance companies must prove the state organs’ failure factually and legally caused the damage and therefore the state organs are liable to pay. When many events contribute to the harm (the floods), then this liability is limited.
For example, in a 2019 case, a man sued a South African municipality because his house flooded three times. The court ruled that simply showing stormwater systems couldn’t cope was not enough to prove the municipality had caused and was liable for the damage. The court found the velocity of floodwater coming down the mountain and a recent wildfire that burnt the vegetation made the flooding worse.
3. Wrongfulness: The insurance companies must prove the municipality, provincial government and Transnet failed to maintain the stormwater system enough. The question will be: to what standard do these organs of state legally need to maintain infrastructure? Is the municipality obliged to maintain infrastructure so it can cope with a one-in-50-year flood or even less frequent flood events such as the April 2022 floods?
4. Negligence: The insurance companies will need to prove the organs of state behaved in a wrongful and negligent way. The only way to prove this is to show the state organs knew that failing to maintain stormwater systems meant floods would damage factories. They also need to prove the organs of state didn’t take any reasonable steps to prevent the damage. Here, it is likely that the organs of state may argue that even if they could have foreseen the floods would do so much damage, they couldn’t have done anything to prevent it.
What will happen next
The two cases are fundamentally about who pays for climate damage, but they also raise deeper questions about climate adaptation and governance.
If the lawsuits succeed they could open the door to more climate-related claims against governments. This could improve government accountability. It could also make government put more effort and funding into maintaining infrastructure.
But it could also backfire: the same organs of state being sued for such huge amounts of money are also responsible for budgeting those funds on maintenance of the infrastructure communities and businesses depend on.
In a country such as South Africa, where public resources are stretched and the effects of climate change are hitting the most vulnerable the hardest, this tension is not just legal; it’s moral, political and structural.
The Conversation
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