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The most catastrophic natural disaster ever recorded in South Africa's KwaZulu-Natal province - also the worst flood in South Africa for more than a century - has sparked two major lawsuits by insurance companies whose business clients suffered massive flood damage.

The April 2022 floods in eThekwini municipality, South Africa claimed 544 lives, displaced more than 40,000 people, and damaged or destroyed over 4,000 homes and businesses.

The economic losses were staggering, with major production facilities, logistics routes and informal settlements submerged after record-breaking rainfall. Floodwaters 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 now suing South African state entities for billions of rand (hundreds of millions of US dollars) in damages.

They argue that the government was negligent in maintaining stormwater infrastructure and that 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 altogether?

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, heat waves, 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 the city of Durban (in eThekwini) in April 2022 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.

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 all reasonable steps to restore the local river, including measures to prevent and mitigate the 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 R6.5 billion (US$368.4 million) in damages from several government departments and entities.

These organs of state include Transnet (a state owned freight transport and logistics company, responsible for the country's rail, port and pipeline infrastructure), the KwaZulu-Natal Department of Transport (a provincial department responsible for road infrastructure in the province) and the eThekwini Municipality.

Read more: Wildfires in South Africa are set to increase: how legal action can help the country adapt better to climate change

The claim alleges that 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. Although no jobs were lost, 7,500 employees had to take a 35% salary cut.

The local government (eThekwini Municipality) is responsible for managing stormwater. But Transnet and the KwaZulu-Natal Department of Transport have likely 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 R540 million (US$30.6 million) 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 massive insurance losses, the insurance companies will have to surmount procedural and substantive hurdles that have tripped up other claimants in the past.

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 that 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 their 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 that they notified all three state departments within six months of knowing that 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 flood damage.

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 all of the following:

1.) Conduct: The insurance companies must prove that 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 that the state organs' failure both factually and legally caused the damage and therefore that 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. But the court ruled that simply showing stormwater systems couldn't cope was not enough to prove that the municipality had caused and was liable for the damage. In fact, the court found that the velocity of floodwaters coming down the mountain and a recent wildfire that had burned the vegetation had made the flooding worse.

Read more: Climate disasters are escalating: 6 ways South Africa's G20 presidency can lead urgent action

3.) Wrongfulness: The insurance companies must prove that 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 that 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 that the organs of state behaved in a wrongful and negligent way. The only way to prove this is to show that the state organs knew that failing to maintain stormwater systems meant that floods would damage factories. They also need to prove that 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 that the floods would do so much damage, they couldn't have done anything to prevent it.

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 very infrastructure that communities and businesses depend on.

In a country like South Africa, where public resources are stretched and the impacts of climate change are hitting the most vulnerable the hardest, this tension is not just legal; it's moral, political and structural.