Constitutional Values Embedded in Electricity Systems

1. Introduction

Electricity systems are not only technical or economic systems. They are also constitutional systems because electricity affects human dignity, economic activity, public services, environmental protection and the functioning of communities. In South Africa, electricity governance must therefore reflect the values contained in the Constitution of 1996.

Important constitutional values include human dignity, equality, democracy, accountability, responsiveness, transparency, rule of law, sustainable development and cooperative government. These values influence how electricity is generated, regulated, supplied, priced and distributed.

2. Constitutional Supremacy and Rule of Law

Section 2 of the Constitution establishes constitutional supremacy. All electricity laws and decisions must therefore comply with the Constitution.

The principle of legality is particularly important. Electricity regulators, Eskom, municipalities and government departments must act within their legal powers.

In Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674 (CC), the Constitutional Court confirmed that the exercise of public power is subject to constitutional control.

Thus, electricity institutions cannot exercise power arbitrarily merely because they believe their decision is necessary for the electricity system.

3. Human Dignity and Access to Electricity

Human dignity is protected by section 10 of the Constitution. Electricity is closely connected with dignified living because it supports lighting, communication, healthcare, water systems, education and household activities.

In Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55 (CC), the Constitutional Court recognised electricity as an important basic municipal service. The Court required procedural fairness before the electricity supply of affected residents could be terminated.

However, Eskom Holdings SOC Ltd v Vaal River Development Association 2023 (4) SA 325 (CC) clarified an important point: the Constitution does not expressly create a general fundamental right to electricity from Eskom. Electricity-related constitutional protection instead operates through constitutional and statutory duties and other rights. (SAFLII)

4. Equality and Non-Discrimination

Section 9 requires equality before the law and prohibits unfair discrimination.

Electricity systems must therefore avoid discriminatory access to electricity infrastructure, grid connections, services and regulatory opportunities. Electricity pricing and supply policies should also take account of vulnerable consumers within the applicable legal framework.

Equality is particularly important where electricity shortages or infrastructure limitations require decisions about which consumers or areas receive available supply.

5. Social and Economic Well-Being

Electricity is essential for economic and social development. Businesses require reliable electricity, while hospitals, schools, water systems and municipalities depend on electricity infrastructure.

In Eskom Holdings SOC Ltd v Lekwa Ratepayers Association and Others; Eskom Holdings SOC Ltd v Vaal River Development Association 2022 (4) SA 78 (SCA), the Supreme Court of Appeal emphasised that electricity is part of the basic services that municipalities are constitutionally and statutorily required to provide. It also stressed the constitutional duties arising from the relationship between Eskom and municipalities. (SAFLII)

6. Cooperative Government

Sections 40 and 41 establish cooperative government between national, provincial and local spheres.

Electricity governance requires cooperation among:

national government;

municipalities;

Eskom;

NERSA;

independent power producers;

environmental authorities; and

electricity consumers.

In Eskom v Lekwa, the court held that Eskom, as an organ of state, must consider its constitutional obligations and the framework for resolving intergovernmental disputes before taking certain actions affecting municipal electricity supply. (SAFLII)

This demonstrates that constitutional values influence relationships between electricity institutions, not only their relationships with consumers.

7. Environmental Sustainability

Section 24 provides a constitutional environmental right. It requires reasonable measures to prevent pollution, promote conservation and secure ecologically sustainable development while allowing justifiable economic and social development. (SAFLII)

Electricity systems must therefore balance energy security with environmental protection.

In Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 (2) SA 519 (GP), the court recognised the importance of climate-change considerations in environmental decision-making concerning a proposed coal-fired power station. (SAFLII)

8. Accountability and Administrative Justice

Section 33 protects the right to just administrative action. This is important because NERSA and other electricity authorities exercise public power.

Electricity decisions concerning licences, tariffs, grid access and regulatory enforcement must comply with applicable administrative-law requirements.

The constitutional value of accountability also requires public institutions to explain and justify important decisions affecting electricity consumers and market participants.

9. Sustainable and Reliable Electricity

The constitutional values embedded in electricity systems also require attention to long-term sustainability. The electricity regulatory framework itself seeks to protect consumers and end users, facilitate investment, promote universal access, encourage diverse energy sources and efficiency, and balance the interests of consumers, licensees, investors and the public. (SAFLII)

Therefore, electricity governance must consider both present needs and future generations.

10. Conclusion

Constitutional values are deeply embedded in South African electricity systems. Rule of law, dignity, equality, accountability, cooperative government, environmental protection and sustainable development influence electricity regulation and service delivery.

The cases of Joseph, Eskom v Vaal River, Eskom v Lekwa and Earthlife Africa demonstrate that electricity governance cannot be treated merely as a technical or commercial activity. It must operate within the constitutional framework.

The central idea is that an effective electricity system must be legally accountable, socially responsive, environmentally sustainable and consistent with constitutional values, while recognising that the Constitution does not itself establish a general standalone right to electricity.