These regulations make an energy crisis in South Africa ineffective

The decision by the South African government to proclaim a state of calamity over the country’s 15-year-long energy problem faces substantial legal challenges.

According to a recent collaborative work by Weber Wentzel firm partner Mzukisi Kota, senior associate Lubumba Kamukwamba, and candidate attorney Lize-Mari Doubell, this is the case.

The trio contended that legal challenges to the state of disaster, such as those filed by the Democratic Alliance and Solidarity, might be pursued since it did not fulfil the provisions of the Disaster Management Act (DMA).

“The declaration of a national state of disaster (and the installation of a new Minister of Electricity) appears to be little more than an attempt to ‘side-step’ addressing the root causes of the energy crisis,” they said.

“These include the lack of coordination, cooperation, planning and political agreement between the existing ministries and the national utility, Eskom.”

They also claimed that the government failed to put in place the current regulatory framework and policies to eliminate load shedding, infrastructure issues, and rampant vandalism and theft at power facilities.

“The biggest elephant in the room remains what is happening on the transmission infrastructure required to unlock various projects which have been orphaned from the renewable energy independent power producers programme due to their inability to connect to the national grid,” the trio said.

“This issue will not be resolved by the declaration of a national state of disaster.”

Ramaphosa’s energy plans contradict the statement.

According to legal experts, President Cyril Ramaphosa’s intentions revealed during his state of the nation address (SONA) were “always achievable” under current legislation, with ample channels for extraordinary and rapid action.

In his address, Ramaphosa cited the following arguments for declaring a state of disaster:

• Enabling an effective response co-ordinated from the centre of government
• Supporting businesses in the food production, storage, and retail supply chains through the roll-out of generators and solar panels
• Exempting critical infrastructure — such as hospitals and water treatment plants — from load-shedding
• Accelerating energy projects and limiting regulatory requirements while maintaining rigorous environmental protections, procurement principles and technical standards

According to the Weber Wentzel team, a national catastrophe may be proclaimed only if current legislation and contingency plans do not fully provide for the national executive to cope with the crisis efficiently.

Alternatively, there may be additional “exceptional circumstances” that justify the declaration.

“While it seems that the definition of a disaster would be satisfied by the energy crisis, it is highly debatable whether the requirements for the declaration of a national disaster, as set out in section 27(1), have in fact been satisfied,” they said.

“It seems to us that a strong argument exists that adequate provision has been made in existing legislation to address the energy crisis in general, and to enable the measures articulated by the president, in particular.”

Section 34 of the Electricity Regulation Act is one piece of law that empowers Ramaphosa’s administration (ERA).

It enables the ministers of natural resources and energy to acquire new generation capacity to ensure an uninterrupted supply of power.

The removal of the 100MW licencing requirement for embedded generation, according to the trio, demonstrated the drastic actions that may be implemented under ERA.

The minister is also able to “issue any guarantee, indemnity or security or enter into any other transaction that binds the state to any future financial commitment that is necessary or expedient for the development, construction, commissioning or effective operation of a public or privately owned electricity generation business”.

Furthermore, the government may expropriate land to meet the ERA’s goals.

“In our view, the ERA already contains special legislative mechanisms designed to ensure the uninterrupted supply of electricity, and these could be deployed to address aspects of the energy crisis,” the Weber Wentzel team stated.

Second, the Public Finance Management Act (PFMA) has particular crisis-response tools.

Section 16 of the PFMA, for example, gives the finance minister the authority to “authorise the use of funds from the National Revenue Fund to defray expenditure of an exceptional nature which is currently not provided for, and which cannot, without serious prejudice to the public interest, be postponed to a future parliamentary appropriation of funds.”

“This is an extraordinary power that bypasses the ordinary appropriation of funds through parliament and enables the Minister of Finance to respond efficiently to situations of urgent or emergency need,” the legal experts said.

“An emergency situation means a serious and unexpected situation that poses an immediate risk to health, life, property or the environment, which calls for urgent action and if there is insufficient time to follow a competitive bidding process,” the legal experts explained.

“An ‘urgent case’ is a case where early delivery is critical and the invitation of competitive bids is either impossible or impractical and crucially, not due to improper planning.”

Coordination should not necessitate a state of emergency.

It is simply addressing the issue of government-wide coordination in the absence of an instantly apparent current legislative instrument.

However, the three stated that procedures such as those in the Infrastructure Development Act, at least in terms of infrastructure coordination, might potentially enable this.

“It is, in any event, most surprising that government requires the adoption of a national state of disaster and legislation to achieve coordination in implementing actions intended to address the energy crisis,” they said.

“The declaration, therefore, does not satisfy section 27(1) of the DMA because it has been declared despite the existence of legislation and contingency arrangements to adequately address the crisis.”

Finally, there was a distinct lack of “other special circumstances” to justify the proclamation.

The trio determined that any rules and orders issued under the declaration might be examined and overturned under the Promotion of Administrative Justice Act of 2000 or the legality principle.

“Similar challenges were launched during the Covid-19 state of disaster, such as in the case of Minister of Cooperative Governance and Traditional Affairs v British American Tobacco South Africa (Batsa) and Others,” they said.

In that instance, Weber Wentzel acted on behalf of Batsa and the other respondents and successfully challenged the now-infamous tobacco ban.