Constitutional Values in Electricity Governance

1. Introduction

Electricity governance is not only about producing and supplying electricity. It also involves public power, constitutional rights, environmental protection, economic development and social welfare. In South Africa, electricity governance must therefore be consistent with the values of the Constitution of 1996.

The Constitution provides a framework within which government, municipalities, Eskom, NERSA and private electricity companies must operate. Important values include constitutional supremacy, human dignity, equality, democracy, accountability, transparency, responsiveness, rule of law, cooperative government and environmental sustainability.

2. Constitutional Supremacy and Rule of Law

Section 2 of the Constitution establishes that the Constitution is the supreme law. Section 1(c) also identifies the supremacy of the Constitution and the rule of law as foundational values.

This means that electricity authorities cannot exercise power arbitrarily. Decisions concerning electricity licences, tariffs, procurement, supply and infrastructure must have a proper legal basis.

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 all exercises of public power must comply with constitutional requirements.

Thus, constitutional governance places legal limits on electricity authorities.

3. Human Dignity and Electricity Services

Section 10 protects human dignity. Reliable electricity contributes to dignified living because it supports lighting, refrigeration, communication, healthcare, education and water services.

In Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55 (CC), the Constitutional Court considered the termination of electricity to residents. The Court recognised the importance of electricity as a municipal service and held that affected residents were entitled to appropriate procedural protection before termination.

The case demonstrates that electricity governance must take account of the human consequences of regulatory and service-delivery decisions.

However, the Court in Eskom Holdings SOC Ltd v Vaal River Development Association 2023 (4) SA 325 (CC) made clear that the Constitution does not expressly establish a general fundamental right to electricity supplied by Eskom. Constitutional protection therefore operates through specific rights, statutory duties and constitutional obligations.

4. Equality and Fairness

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

Electricity governance should therefore seek fair treatment in areas such as:

electricity access;

grid connections;

tariff structures;

licensing;

infrastructure development; and

distribution of electricity services.

Government may adopt different policies for different groups where constitutionally and legally justified, particularly where policies address historical inequality or protect vulnerable communities.

5. Democratic Participation

Electricity decisions can significantly affect communities, consumers and businesses. Constitutional democracy therefore requires appropriate participation and consultation where legislation or administrative processes require it.

In Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC), the Constitutional Court emphasised the importance of meaningful public participation in democratic law-making.

This principle is relevant to electricity governance because major regulatory reforms, tariff decisions and infrastructure projects can have wide social and economic effects.

6. Accountability and Administrative Justice

Section 33 guarantees just administrative action. Electricity regulators and public electricity institutions exercise public power and must therefore act lawfully, reasonably and procedurally fairly.

The principles of accountability are particularly important for NERSA because it makes decisions concerning tariffs, licences and other regulatory matters.

In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC), the Constitutional Court recognised the importance of administrative expertise while confirming that administrative power remains subject to legal and constitutional review.

Therefore, technical expertise does not remove constitutional accountability.

7. Cooperative Government

Electricity governance involves several institutions. National government, municipalities, Eskom and regulatory bodies must work within the constitutional framework of cooperative government under sections 40 and 41.

In Eskom Holdings SOC Ltd v Lekwa Local Municipality and Others [2022] ZASCA 26, the Supreme Court of Appeal considered the relationship between Eskom and municipal electricity responsibilities. The case illustrates why electricity governance requires cooperation between different spheres and institutions.

The constitutional structure prevents electricity governance from becoming a system where one institution ignores the lawful responsibilities of another.

8. Environmental Sustainability

Section 24 gives everyone the right to an environment that is not harmful to health or well-being and requires reasonable measures to protect the environment for present and future generations.

This directly affects electricity governance because energy choices can involve pollution, greenhouse-gas emissions, water use and land impacts.

In Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 (2) SA 519 (SCA), climate-change considerations were recognised as relevant to environmental decision-making concerning a proposed coal-fired power station.

Thus, electricity governance must balance energy security, economic development and environmental protection.

9. Public Administration Values

Section 195 requires public administration to follow principles such as professional ethics, efficient use of resources, accountability, transparency, responsiveness and fairness.

These principles are important for public electricity institutions because electricity infrastructure involves substantial public resources.

Good constitutional governance therefore requires institutions to explain decisions, use resources responsibly and remain responsive to consumers and communities.

10. Conclusion

Constitutional values provide the foundation for electricity governance in South Africa. Rule of law, dignity, equality, democratic participation, accountability, cooperative government and environmental sustainability influence how electricity is regulated and supplied.

The cases of Joseph, Eskom v Vaal River, Bato Star, Doctors for Life, Eskom v Lekwa and Earthlife Africa demonstrate that electricity governance must operate within constitutional limits.

Therefore, constitutional values transform electricity governance from a purely technical and economic activity into a system of lawful, accountable, participatory, socially responsive and environmentally responsible public governance.