1. Introduction

Path dependency describes a situation in which earlier institutional choices, investments, regulations, technologies, and political decisions constrain the choices available to decision-makers later. In energy governance, this concept is particularly important because electricity systems require long-lived infrastructure, large capital investments, specialised institutions, contractual commitments, and interconnected networks. Once a particular energy pathway becomes established, changing it can be legally, economically, and institutionally difficult.

South Africa provides a significant example. Its electricity governance has historically developed around coal-based generation, Eskom's central role, vertically integrated infrastructure, state planning, and electricity-security objectives. At the same time, constitutional environmental rights, renewable-energy procurement, private participation, climate policy and electricity-market reforms have increasingly pushed the system toward diversification.

Thus, path dependency in South African energy governance is not simply "dependence on coal." It concerns the interaction between historical infrastructure, Eskom's institutional position, regulatory arrangements, investment decisions, policy commitments, and legal expectations.

2. Meaning of Path Dependency

Path dependency means that:

Past institutional and infrastructural decisions influence the range, cost and feasibility of present and future regulatory choices.

Three elements are particularly important.

A. Historical choices

A government may initially choose a particular technology or institutional model because it appears efficient or necessary at that time.

B. Increasing returns

Once substantial investments are made, abandoning the established system becomes progressively more expensive.

C. Institutional lock-in

Agencies, companies, contracts, technical standards and professional practices develop around the existing model.

In electricity governance, therefore, constructing coal-fired power stations does more than create physical assets. It creates:

coal-supply arrangements;

transmission connections;

specialised workers;

maintenance systems;

financing obligations;

regulatory expectations;

environmental liabilities; and

institutional expertise.

These factors can make subsequent transition more difficult.

3. Historical Coal Dependence

South Africa's electricity system developed around abundant domestic coal resources and large-scale coal-fired generation. Eskom consequently became central to electricity production, transmission and system coordination.

This history created a structural relationship between:

coal resources → generation infrastructure → Eskom → transmission system → electricity consumers → regulatory institutions.

The difficulty of changing the pathway is demonstrated by the government's historical planning instruments. In the litigation concerning the proposed Thabametsi coal-fired power station, the High Court recorded that the Integrated Resource Plan 2010–2030 contemplated a generation mix including substantial new coal capacity. The government had also issued a statutory determination under section 34 of the Electricity Regulation Act providing for 2,500 MW of coal generation by independent power producers. (SAFLII)

This is an important example of path dependency: an existing coal-oriented system generated planning assumptions that subsequently influenced new-generation decisions.

4. Eskom And Institutional Path Dependency

Eskom is one of the most important institutional components of South African energy governance.

Its historical position created institutional dependence upon a centralised electricity model. Even when government policy began moving toward private-sector participation and renewable energy, Eskom remained crucial for:

transmission;

grid balancing;

system operation;

electricity procurement and supply;

connection of independent generators; and

maintenance of much of the generation fleet.

Path dependency therefore exists not merely because coal plants are difficult to replace, but because the governance architecture itself developed around a dominant public utility.

The 2023 High Court judgment in United Democratic Movement v Eskom Holdings SOC Ltd is particularly significant. The court discussed the historical failure to realise the government's late-1990s intention to introduce greater competition, delays concerning the Independent Power Producer programme and Medupi and Kusile, inadequate maintenance, revenue problems and other institutional failures. The judgment connected these historical developments with the later electricity crisis and load-shedding. (SAFLII)

This illustrates a central feature of path dependency: earlier institutional decisions can generate consequences many years later.

5. Medupi And Kusile As Examples Of Lock-In

The construction of Medupi and Kusile demonstrates how capital-intensive infrastructure can reinforce an existing pathway.

Large coal-fired plants require:

enormous capital expenditure;

long construction periods;

coal-supply infrastructure;

transmission connections;

operating personnel;

maintenance systems;

environmental authorisations; and

long-term financial commitments.

Once these assets are built, governments cannot simply treat them as obsolete overnight.

This creates a form of infrastructural lock-in.

At the same time, the legal significance of these projects cannot be reduced to economics. Their continued operation engages environmental law, constitutional rights, administrative law and electricity-security considerations.

6. Earthlife Africa v Minister Of Environmental Affairs

One of the most important cases demonstrating the interaction between historical energy pathways and environmental law is:

Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others [2017] ZAGPPHC 58.

The case concerned the proposed 1,200 MW Thabametsi coal-fired power station.

The government relied substantially upon existing electricity policy, including the IRP and the coal-generation determination. The respondents argued, among other things, that coal-fired generation formed part of the government's electricity-security strategy. (SAFLII)

The High Court nevertheless emphasised an important legal principle: existing energy policy cannot eliminate the requirements of environmental legislation.

The court held that climate-change considerations had to be properly addressed in the environmental authorisation process and that macro-level policy concerning electricity generation could not substitute for consideration of the specific climate impacts of an individual project. (SAFLII)

Importance for path dependency

The case demonstrates that path dependency is not legally absolute.

A government may inherit:

coal infrastructure;

coal-dependent planning;

electricity-security concerns; and

established generation policy.

But these historical conditions do not automatically determine the legality of every subsequent decision.

Environmental legislation can require decision-makers to reconsider the consequences of continuing the historical pathway.

7. Constitutional Environmental Rights And Path Dependency

Section 24 of the South African Constitution provides a particularly important legal counterweight to institutional lock-in.

It recognises a constitutional environmental right and requires reasonable legislative and other measures to protect the environment and promote ecologically sustainable development.

This creates a constitutional tension:

Energy-security pathway
versus
environmental sustainability pathway.

The legal system therefore has to reconcile existing infrastructure with evolving constitutional and environmental obligations.

The Thabametsi litigation illustrates this transition particularly clearly: historical coal policy remained relevant, but it could not prevent climate considerations from entering project-level administrative decision-making. (SAFLII)

8. Electricity Crisis And Historical Causation

Path dependency also helps explain why electricity crises can become persistent.

When earlier investment decisions produce:

ageing generating units;

maintenance requirements;

financial pressure;

inadequate reserve margins;

dependence on particular fuels;

delayed diversification; and

institutional bottlenecks,

later governments inherit problems that cannot be solved immediately.

The United Democratic Movement v Eskom judgment is significant in this context because the court examined a sequence of historical decisions and failures, including delayed generation projects, delays in implementing IPP procurement, maintenance problems and financial difficulties. The court connected these developments to the constitutional consequences of persistent load-shedding. (SAFLII)

Path dependency therefore helps explain why energy governance problems can persist even after governments formally adopt new policies.

9. Renewable Energy As A Counter-Path

South African energy governance has nevertheless developed a competing pathway based upon:

renewable generation;

independent power producers;

competitive procurement;

private investment;

grid diversification; and

reduced dependence on conventional generation.

The Renewable Energy Independent Power Producer Procurement Programme (REIPPPP) represents an important institutional shift because it introduced a more systematic role for private renewable generators.

This illustrates path creation rather than simply path dependence.

New regulatory arrangements can gradually create another institutional trajectory.

The process is nevertheless constrained by the existing electricity system because renewable generators still depend upon:

transmission availability;

grid connection;

system balancing;

regulatory approvals;

Eskom-related institutional arrangements; and

network investment.

Consequently, a new pathway develops within the inherited infrastructure.

10. The 2026 Sibanye Gold Case

A particularly current example is Sibanye Gold (Pty) Ltd v Eskom Holdings SOC Ltd and Others [2026] ZAGPJHC 123.

The Gauteng High Court considered an Eskom decision against the background of South Africa's policy of diversifying electricity generation and promoting renewable energy.

The court stated that renewable-energy policy was intended to increase generation capacity and attract private-sector investment, reflecting the broader policy objective of diversification. It ultimately held the challenged Eskom decision unlawful and invalid because it was inconsistent with legislation directed toward long-term energy security in which renewable energy had become important. (SAFLII)

This case demonstrates an important contemporary principle:

Historical institutional practice does not necessarily justify continuing that practice when the governing legal framework and policy objectives have changed.

Path dependency therefore creates constraints, but courts can require institutions to act consistently with the current statutory and regulatory framework.

11. Environmental Compliance And Kusile

The relationship between inherited coal infrastructure and contemporary environmental obligations is also illustrated by litigation concerning Kusile Power Station.

In Topigs Norsvin (Pty) Ltd v Eskom Holdings SOC Ltd and Others [2026] ZASCA 108, the Supreme Court of Appeal dealt with environmental compliance associated with Eskom's Kusile operations.

The case involved duties arising under environmental legislation and section 24 of the Constitution. The SCA confirmed significant declaratory and remedial relief concerning environmental compliance, while also addressing the limits of structural judicial intervention and the respective responsibilities of governmental institutions. (SAFLII)

This demonstrates another dimension of path dependency:

Existing infrastructure may continue operating, but its historical existence does not immunise it from contemporary environmental standards.

The legal system can therefore impose new environmental obligations upon old infrastructure.

12. Path Dependency And Regulatory Institutions

Path dependency also affects regulators.

Institutions such as:

NERSA;

the Department responsible for energy policy;

environmental authorities;

Eskom;

transmission and system-operation institutions; and

municipalities

develop established procedures and expertise.

These institutions may consequently reproduce familiar regulatory approaches even when technological conditions change.

This is sometimes called institutional inertia.

However, South African administrative law provides mechanisms for challenging unlawful or irrational decisions.

Judicial review under the Constitution and the Promotion of Administrative Justice Act can therefore operate as a mechanism for breaking institutional lock-in where an authority acts inconsistently with its current legal obligations.

13. Path Dependency And Energy Transition

South Africa's energy transition therefore involves several competing historical pathways:

The important point is that the new pathway does not begin from zero.

It must operate through an inherited electricity network.

14. Legal Mechanisms For Managing Path Dependency

South African energy law can manage path dependency through several mechanisms.

1. Periodic policy revision

Integrated Resource Plans can be revised as technology, costs and environmental conditions change.

2. Competitive procurement

Independent power-producer procurement can introduce new generation technologies without immediately dismantling existing infrastructure.

3. Environmental assessment

NEMA-based environmental assessment can force decision-makers to consider environmental consequences associated with continuing established technological pathways.

4. Judicial review

Courts can review decisions that are irrational, unreasonable, unlawful or inconsistent with statutory duties.

5. Constitutional environmental protection

Section 24 provides a constitutional framework within which energy development must operate.

6. Institutional restructuring

Reforms to electricity transmission, generation and system operation can reduce dependence upon inherited institutional structures.

15. Key Case Laws

Earthlife Africa Johannesburg v Minister of Environmental Affairs [2017] ZAGPPHC 58

Established that climate-change considerations must be properly integrated into environmental decision-making concerning major coal-fired generation projects. It demonstrates that existing energy policy cannot displace environmental-law requirements. (SAFLII)

United Democratic Movement v Eskom Holdings SOC Ltd [2023] ZAGPPHC 1949

Considered historical electricity-sector decisions and their relationship to the persistent electricity crisis, including delayed IPP development, Medupi and Kusile delays, maintenance and institutional problems. (SAFLII)

Eskom v Vaal River Development Association [2022] ZACC 44

The Constitutional Court addressed Eskom's constitutional and public-service responsibilities in the context of electricity supply to municipalities, illustrating the legal importance of continuity of electricity services. (Constitutional Court of South Africa)

Sibanye Gold v Eskom [2026] ZAGPJHC 123

Demonstrates the increasing legal significance of renewable-energy diversification and the requirement that Eskom decisions conform to the contemporary statutory framework governing long-term energy security. (SAFLII)

Topigs Norsvin v Eskom [2026] ZASCA 108

Illustrates how environmental obligations can apply to established electricity infrastructure and how courts may provide declaratory and remedial relief concerning environmental compliance. (SAFLII)

16. Conclusion

Path dependency in South African energy governance describes the continuing influence of historical coal investment, Eskom's institutional position, centralised electricity planning, infrastructure commitments and earlier regulatory choices on contemporary energy policy.

Its central legal significance is that past decisions create constraints but do not permanently determine future legality.

The South African experience demonstrates a continuing transition from a historically coal-centred and Eskom-dominated system toward a more diversified electricity structure incorporating renewable energy, private investment, environmental governance and institutional reform.

The courts have played an important role in this transition. Earthlife Africa shows that established energy policy cannot displace environmental-law requirements; United Democratic Movement illustrates the legal consequences associated with accumulated institutional and infrastructure failures; and the more recent Sibanye Gold and Topigs Norsvin litigation shows that existing electricity infrastructure remains subject to contemporary statutory and constitutional obligations. (SAFLII)

Accordingly, the central legal problem of path dependency is not simply whether South Africa should abandon its historical energy system. It is how law and institutions can manage inherited infrastructure while progressively changing the regulatory, technological and environmental pathway on which the electricity system operates.