216. ENERGY GOVERNANCE IN BORDER REGIONS

1. Introduction

Energy governance in border regions concerns the legal and institutional regulation of electricity generation, transmission, distribution, energy trade and infrastructure located near or crossing national boundaries. In South Africa, border-region energy governance has both a domestic and regional dimension because electricity networks connect South Africa with neighbouring SADC states through cross-border trading arrangements. The SADC Protocol on Energy 1996 promotes harmonisation of national energy policies, cooperation between Member States, energy security, reliability and sustainable supply.

Border energy governance is therefore not simply a matter of national electricity regulation. It requires coordination between South African institutions, neighbouring states, NERSA, Eskom, SADC, the Southern African Power Pool (SAPP), regional regulators and cross-border infrastructure operators.

2. Legal and Institutional Framework

The principal domestic framework includes the Electricity Regulation Act 4 of 2006 (ERA), the National Energy Regulator Act 7 of 2004, constitutional principles of cooperative government, and applicable environmental and infrastructure legislation.

At regional level, the SADC Protocol on Energy provides the principal cooperation framework. It encourages Member States to harmonise energy policies and procedures and facilitates the sharing of energy information and cooperation with regional and international institutions.

Cross-border electricity trading additionally requires compatible regulatory decisions concerning licensing, imports and exports, transmission access, wheeling, pricing, security of supply and approval of cross-border agreements. SADC regional infrastructure frameworks specifically identify these matters as important regulatory principles.

3. Cross-Border Electricity Trading

South Africa participates in regional electricity markets through the Southern African Power Pool. Cross-border trading allows electricity to move between jurisdictions where generation capacity, demand and system conditions differ.

The regulatory challenge is that electricity may cross several legal jurisdictions while remaining technically part of an interconnected grid. Consequently, regulators must address:

• compatibility of national licences;
• transmission and wheeling charges;
• grid-code compliance;
• reliability and security of supply;
• emergency electricity assistance;
• environmental impacts of infrastructure;
• dispute resolution; and
• transparency of commercial agreements.

SADC has developed regional guidelines intended to make cross-border electricity transactions more transparent, predictable and compatible with national regulatory systems.

4. Constitutional and Cooperative Governance

Border-region energy governance must also comply with South Africa's constitutional principles of cooperative government. National, provincial and local institutions cannot exercise energy-related powers without regard to the responsibilities of other spheres of government.

This becomes particularly important in border municipalities, where electricity infrastructure may affect communities, industries and public services while cross-border arrangements are controlled primarily at national or regional level.

5. Case Law

Case Name/Citation

Eskom Holdings SOC Ltd v AfriForum NPC (1049/2024) [2026] ZASCA 34.

Facts

AfriForum sought information concerning Eskom's electricity transactions with neighbouring countries, particularly the quantities supplied and the contractual terms governing those transactions.

Legal Issue

The dispute concerned access to information relating to Eskom's cross-border electricity supply arrangements and the transparency of those transactions.

Judgment

The Supreme Court of Appeal considered Eskom's disclosure obligations and the information requested concerning electricity supplied to neighbouring countries.

Legal Principle/Ratio Decidendi

The case illustrates that cross-border electricity transactions involving a public electricity utility can raise significant public-law transparency and accountability questions, particularly where public resources and national electricity security are involved.

Significance

The judgment is particularly relevant to border-region energy governance because it demonstrates the relationship between cross-border electricity commerce, public accountability and access to information.

6. Case Law on Intergovernmental Electricity Governance

In Enoch Mgijima Local Municipality v Twizza (Pty) Ltd; Border-Kei Chamber of Business v Eskom Holdings SOC Ltd [2022] ZAECGHC 40, the Court considered Eskom's proposed interruption of electricity supply to a municipality. It emphasised the constitutional responsibilities of Eskom and municipalities toward electricity consumers and the requirement for meaningful intergovernmental engagement before supply affecting an entire municipality is interrupted.

Similarly, Eskom Holdings SOC Ltd v Vaal River Development Association [2022] ZACC 44 demonstrates that electricity governance involves interconnected constitutional responsibilities between Eskom, municipalities and end-users.

7. Legal Significance

Energy governance in border regions therefore operates at three interconnected levels: domestic constitutional and electricity law, intergovernmental governance, and regional SADC cooperation. Effective governance requires harmonised regulation, transparent cross-border agreements, reliable transmission infrastructure and mechanisms for resolving disputes between jurisdictions.

Conclusion

Border-region energy governance is essential to South Africa's participation in the regional electricity system. The SADC Protocol on Energy, ERA, NERSA regulation and SAPP arrangements collectively establish a framework for cross-border energy cooperation. The emerging jurisprudence additionally demonstrates that cross-border electricity arrangements must remain consistent with constitutional accountability, transparency, cooperative governance, public-service obligations and electricity-system security.