ENERGY COOPERATION IN SOUTHERN AFRICA

1. Introduction

Energy cooperation in Southern Africa refers to the legal, institutional, economic and technical arrangements through which states coordinate the generation, transmission, trade and regulation of energy across national borders. It is particularly important because energy resources are unevenly distributed across the region. Some states possess substantial hydropower, coal, gas, solar or other renewable resources, while others depend heavily upon imported electricity or fuel.

Regional cooperation therefore allows states to share generation capacity, improve energy security, reduce electricity costs, develop cross-border infrastructure and respond collectively to shortages. The principal regional framework operates through the Southern African Development Community (SADC) and the Southern African Power Pool (SAPP).

The central legal instrument is the SADC Protocol on Energy 1996, which seeks harmonious development of national energy policies and cooperation on matters of common regional interest.

2. SADC Protocol on Energy 1996

The SADC Protocol on Energy provides the principal legal foundation for regional energy cooperation.

The Protocol recognises that energy should contribute to:

economic growth and development; poverty reduction; improvement of living standards; regional self-reliance; security of energy supply; and environmentally responsible development.

It encourages Member States to coordinate their energy policies, strategies and regulatory approaches rather than treating national energy systems as completely isolated structures.

This is important because electricity networks frequently cross national borders. A generation shortage in one country may therefore be mitigated through electricity imported from another state.

SADC explains that its energy framework promotes security, reliability and sustainability of supply, as well as cooperation concerning research and development of affordable energy resources. The regional framework has subsequently expanded into renewable energy, energy efficiency, infrastructure development and energy-access strategies.

3. Southern African Power Pool (SAPP)

The most significant practical expression of regional electricity cooperation is the Southern African Power Pool (SAPP).

The SAPP developed through regional agreements and memoranda between governments and electricity utilities. Its basic objective is to create a system through which participating electricity utilities can coordinate their power systems and trade electricity across national boundaries.

Its functions include:

coordinating electricity-system planning; facilitating cross-border electricity trading; improving system reliability; reducing generation costs; sharing reserve capacity; encouraging transmission interconnections; and promoting efficient utilisation of regional energy resources.

The SAPP framework recognises that interconnected electricity systems can reduce the amount of generating capacity that each state must independently maintain. Regional electricity trading can also allow surplus electricity generated in one country to satisfy shortages elsewhere.

Therefore, electricity increasingly operates as a regional public infrastructure network rather than merely a collection of national electricity systems.

4. Cooperative Governance and Energy Security

Energy cooperation also reflects the broader legal principle of cooperative governance.

Although South African cooperative-government cases primarily concern relationships between domestic organs of state, their reasoning provides useful principles for understanding regional energy governance.

Eskom Holdings SOC Ltd v Resilient Properties (Pty) Ltd (2020)

In Eskom Holdings SOC Ltd v Resilient Properties (Pty) Ltd and Others [2020] ZASCA 185, the Supreme Court of Appeal considered Eskom's interruption of electricity supplied to municipalities experiencing serious financial difficulties.

The Court emphasised constitutional principles requiring organs of state to make reasonable efforts in good faith to resolve governmental disputes.

The case illustrates an important energy-governance principle: electricity disputes cannot always be approached as ordinary bilateral commercial disputes because interruption of electricity affects communities, businesses and public services.

Applied regionally, similar reasoning supports consultation, negotiation and institutional coordination where interconnected electricity systems create mutual dependence.

5. Eskom v Vaal River Development Association

The relationship between electricity supply, governmental responsibility and cooperative governance was further examined in Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd [2022] ZACC 44.

The dispute concerned reductions in electricity supplied by Eskom to municipalities.

The litigation demonstrated that electricity governance involves numerous interconnected actors, including:

Eskom, municipalities, NERSA, national government and electricity consumers.

The Constitutional Court discussed the extensive statutory regulatory framework governing electricity and recognised Eskom's public functions within that framework.

The preceding Supreme Court of Appeal litigation also emphasised that section 41 of the Constitution and the Intergovernmental Relations Framework Act require organs of state to make reasonable, good-faith efforts to settle intergovernmental disputes.

This principle is conceptually relevant to Southern African cooperation because regional electricity networks similarly depend upon coordination rather than unilateral action.

6. Human Rights Dimension of Regional Energy Cooperation

Energy cooperation is not exclusively an economic matter. Reliable electricity increasingly supports the practical enjoyment of rights involving:

healthcare, education, water supply, communication, security and human dignity.

This dimension became particularly visible in United Democratic Movement and Others v Eskom Holdings SOC Ltd and Others [2023] ZAGPPHC 1949.

The High Court held that failures contributing to South Africa's electricity crisis and load shedding implicated constitutional rights and ordered remedial measures concerning essential institutions including public hospitals, schools and police stations.

The case demonstrates why regional electricity cooperation can acquire constitutional significance: cross-border electricity trading and regional generation capacity may contribute to the continuity of essential public services.

7. Renewable Energy and Regional Integration

Future Southern African energy cooperation increasingly involves renewable energy and interconnected transmission infrastructure.

Different geographical areas possess different comparative advantages. For example, some parts of Southern Africa possess significant solar potential, while others possess major hydropower resources.

Regional integration therefore allows electricity generated from different resources and locations to be transmitted across borders.

SADC has consequently developed strategies concerning renewable energy, energy efficiency, energy access and regional infrastructure development. It also identifies regional transmission interconnectors as an important component of further integration.

This can support the transition from predominantly nationally organised electricity systems toward a regional low-carbon electricity market.

8. Challenges to Energy Cooperation

Despite its benefits, regional cooperation faces substantial difficulties. These include insufficient transmission infrastructure, differences between domestic regulatory systems, financial instability of utilities, electricity shortages, difficulties obtaining investment, non-cost-reflective tariffs, weak power-purchase arrangements and political concerns regarding national energy sovereignty.

SADC itself has identified inadequate financing, regulatory weaknesses, infrastructure constraints and difficulties surrounding power-purchase agreements as barriers to regional energy development.

Energy cooperation must therefore balance two competing principles:

national sovereignty over energy resources and regional interdependence in energy security.

9. Conclusion

Energy cooperation in Southern Africa represents a transition from isolated national energy sovereignty toward coordinated regional energy governance. The SADC Protocol on Energy supplies the legal framework, while the Southern African Power Pool provides the principal institutional mechanism through which interconnected electricity systems can coordinate operations and facilitate cross-border electricity trading.

Cases such as Eskom v Resilient Properties, Eskom v Vaal River Development Association, and United Democratic Movement v Eskom demonstrate broader legal principles concerning cooperative governance, public responsibility, continuity of electricity supply and constitutional rights.

Ultimately, Southern African energy cooperation is not simply about buying and selling electricity. It concerns regional integration, energy security, economic development, human welfare and the creation of resilient infrastructure capable of supporting states whose electricity systems are increasingly interdependent.