The Green Connection, a non-governmental organisation, and the Southern African Faith Communities’ Environment Institute (SAFCEI) have filed papers in the High Court in Cape Town to compel the government to implement sections of the National Energy Act that came into effect in 2008. 

In particular, they want the energy minister to implement section 6 of the act, which requires the government to create an Integrated Energy Plan (IEP), which Mantashe has yet to publish for comment. 

Kholwane Simelane, an advocacy officer at the Green Connection, questioned why the government has not implemented section 6 of the act since it became law in 2008. 

“The National Energy Act 24 of 2008 became law when the President assented to it on 17 November 2008. Rather than coming into operation upon publication, the act delegated to the President the power to bring its provisions into effect by proclamation in the Gazette. The President has brought all the provisions of the act — except section 6 — into operation,” Simelane said. 

“Green Connection and SAFCEI apply to this honourable court to have the President’s ongoing failure or refusal to bring section 6 into operation judicially reviewed. And seek an order compelling the President to take the necessary steps to bring sections into effect,” he added. 

The other sections of the act were brought into effect between April 2009 and March 2012. 

Section 6 of the act calls on the energy minister to develop, annually review and publish the Integrated Energy Plan. The plan must deal with issues relating to the supply, transportation, storage and demand for energy. This should be done while accounting for the security of the supply, economically available resources, affordability, universal accessibility to free basic electricity and consumer protection. The plan is also meant to consider the environment, employment, social equity and the contribution of energy to socioeconomic development. 

The IEP is meant to “have a planning horizon of no less than 20 years” and serve as a guide for energy infrastructure investments, “taking into account all viable energy supply options and guide the selection of the appropriate technology to meet energy demand”. 

Simelane questioned why Mantashe had not acted in this regard, saying that initial public comment was sought in 2016. A draft Integrated Energy Plan has been in the works ever since. 

“There is no rational basis for the President to withhold his exercising delegated power to bring section 6 into operation… That section 6 is not yet operative impedes parliamentary oversight. The department’s engagement with the National Assembly’s Portfolio Committee on Mineral Resources and Energy reveals that Parliament assumes that section 6 is operative, as much as it has sought to hold the minister and his predecessors accountable for the delay in finalising an IEP.” 

Simelane argued that withholding the implementation of section 6 “impacts on South Africa’s response to its energy crisis”. 

“Government has been exploring alternative energy sources, with many controversial options being considered. But none of these options has been guided by an IEP, as the act envisions,” he said. 

Simelane added that the act required public participation in the formation of the IEP, and the shelving of section 6 was “frustrating a key purpose of the act”. 

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The Green Connection wrote to the Presidency as far back as November 2020, asking why the IEP had not yet been published since Mantashe had promised to publish the document before the end of that year. 

The Presidency referred the Green Connection to Mantashe’s office. The NGO responded that the President, and only the President, could bring section 6 of the act into effect. 

In July 2021, the department eventually responded to the correspondence by saying it was concluding “six sector plans” before finalising the IEP. These plans include an electricity distribution industry asset assessment, an electricity transmission plan, an electricity generation plan, a draft liquid fuel masterplan, a draft gas utilisation masterplan and a gas masterplan.  

The NGO has called this approach “illogical”. 

“Making each depend on the other would not be rational. None of the sector plans that the department referred to has any legislated deadline. The risk was that the development of the IEP, on the department’s own version, could be delayed endlessly,” Simelane said. He has also argued that the failure of the President to take a decision could constitute an exercise of public power and wants the court to hold him accountable for this inaction. 

The Green Connection is a member of Electricity Governance International, a global initiative that seeks to promote transparent decision-making around electricity supply. SAFCEI is focused on ensuring that people of faith are informed about energy supply choices, along with the right to public engagement. 

These NGOs are not the only entities threatening the government with legal action over energy concerns. Earlier this week, a group of law firms wrote to Public Enterprises Minister Pravin Gordhan, on behalf of politicians, political formations and some ordinary citizens. The letter, which was also addressed to Eskom CEO André de Ruyter, calls on the government to stabilise the supply of electricity or face legal action. 

Read in Daily Maverick: 

“Legal challenges mount for Eskom and Department of Public Enterprises over rolling blackouts”

“Gatvol citizens threaten Eskom and government with legal action, demand stop to rolling blackouts”

The law firms represent the United Democratic Movement’s (UDM) Bantu Holomisa, Build One South Africa’s Mmusi Maimane, the Inkatha Freedom Party and active citizens’ group The Circle, among others. 

The letter calls on the government to halt rolling blackouts immediately or provide a specific timetable on when they will end. It also wants the 18.65% tariff increase granted to Eskom stopped and a commitment that the state will “compensate everyone who has suffered quantifiable financial losses because of load shedding”. DM