ENERGY DEMOCRACY IN SOUTH AFRICA

1. Introduction

Energy democracy refers to the idea that decisions concerning the production, distribution, pricing and consumption of energy should not remain exclusively under the control of governments, monopolistic utilities or large corporations. Instead, citizens, communities, municipalities, workers and consumers should have meaningful participation in determining how energy systems operate and who benefits from them.

In South Africa, energy democracy has particular constitutional importance because electricity is closely connected with equality, dignity, housing, water, education, healthcare and economic participation. South Africa's history of apartheid produced deep inequalities in infrastructure and access to basic services. Consequently, democratic energy governance involves not only producing sufficient electricity but ensuring that energy is accessible, affordable, procedurally fair, environmentally sustainable and democratically accountable.

Energy democracy therefore connects constitutional law, administrative law, municipal governance, environmental justice, renewable energy and the just energy transition.

2. Constitutional Foundation of Energy Democracy

The Constitution of the Republic of South Africa, 1996 does not expressly establish a freestanding constitutional “right to electricity.” Nevertheless, electricity is essential for the effective enjoyment of several constitutional rights.

Municipalities have important constitutional responsibilities regarding service delivery. Sections 152 and 153 require local government to promote the social and economic development of communities and structure its administration and resources toward meeting communities' basic needs.

The Constitutional Court has recognised electricity as part of the basic municipal-services framework.

Energy democracy consequently requires public authorities to treat electricity consumers not merely as commercial customers but as persons affected by exercises of public power.

3. Joseph v City of Johannesburg (2009)

A foundational case is Joseph and Others v City of Johannesburg and Others [2009] ZACC 30.

Tenants living in an apartment building had their electricity disconnected because the property owner owed money to City Power. The tenants themselves had no contractual relationship with the electricity supplier.

The Constitutional Court nevertheless held that the applicants received electricity pursuant to a public-law relationship arising from the constitutional and statutory obligations of local government to provide basic municipal services.

Importantly, affected residents were entitled to procedural fairness before termination. The Court required adequate pre-termination notice.

Energy Democracy Principle

Joseph represents energy democracy because it rejects the idea that electricity governance is purely contractual. Consumers affected by public electricity decisions possess procedural protections.

Thus:

Electricity Governance = Public Power + Participation + Procedural Fairness + Accountability

Citizens must therefore have a meaningful opportunity to respond when governmental electricity decisions substantially affect them.

4. Eskom Holdings SOC Ltd v Resilient Properties (2020)

In Eskom Holdings SOC Ltd v Resilient Properties (Pty) Ltd and Others [2020] ZASCA 185, Eskom proposed interruptions of bulk electricity supplied to municipalities because those municipalities had failed to pay their electricity debts.

The Supreme Court of Appeal recognised the potentially devastating consequences of interruptions for communities, businesses and public services. It emphasised constitutional principles of cooperative government and intergovernmental relations and the obligation of organs of state to make reasonable efforts to resolve disputes.

The litigation demonstrates that disputes between Eskom and municipalities cannot always be treated merely as ordinary creditor-debtor disputes when the consequences fall upon entire communities.

Energy Democracy Principle

Energy institutions must consider the interests of citizens who depend upon electricity even though those citizens may not be responsible for the institutional financial dispute.

This transforms electricity from a simple commodity into an issue of democratic governance and social welfare.

5. Eskom v Vaal River Development Association (2022)

The Constitutional Court considered related questions in Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others [2022] ZACC 44.

Eskom had restricted bulk electricity supplied to municipalities suffering serious governance and payment failures. Residents and businesses argued that they were paying municipalities for electricity and should not suffer because municipalities failed to meet their obligations to Eskom.

The consequences were severe. Electricity restrictions affected businesses, drinking-water systems, sewage infrastructure, hospitals and other essential services.

The Constitutional Court stressed the constitutional division of responsibility. Municipalities possess their own constitutional obligations to provide basic services and remain democratically accountable to their local electorates. The Court cautioned against simply transferring municipal constitutional duties to Eskom merely because Eskom supplies most electricity.

This provides an important qualification to energy democracy: democratic energy rights must operate within the constitutional allocation of institutional responsibilities.

6. Community Participation and Renewable Energy

Modern energy democracy extends beyond protection against electricity disconnection. It includes citizen participation in the transition from fossil-fuel-based electricity toward renewable and decentralised energy systems.

Communities can increasingly participate through:

rooftop solar generation;

community renewable-energy projects;

independent power producers;

municipal electricity initiatives;

distributed generation;

electricity trading arrangements;

community benefit mechanisms; and

public participation in environmental and energy decision-making.

The Electricity Regulation Amendment Act 38 of 2024, which commenced on 1 January 2025, represents an important structural reform. It provides, among other things, for an open-market platform enabling competitive electricity trading and reforms relating to transmission-system operation and electricity infrastructure.

These reforms potentially broaden participation beyond the historically dominant vertically integrated electricity model.

7. Energy Democracy and Just Energy Transition

South African energy democracy is also closely connected with the Just Energy Transition.

Closing coal-fired power stations and expanding renewable energy can produce environmental benefits, but the transition may negatively affect coal-dependent workers and communities.

Energy democracy therefore asks:

Who decides the transition? Who pays for it? Who receives its benefits? Who loses employment? Who owns renewable-energy infrastructure?

A genuinely democratic transition requires affected workers, municipalities and communities to participate in decision-making rather than simply receiving decisions made by central institutions or private investors.

8. Energy Poverty and Substantive Equality

Energy democracy also addresses energy poverty.

Formal access to electricity is insufficient if poor households cannot afford meaningful electricity consumption. High tariffs, disconnections and inadequate infrastructure can reproduce social inequality.

The reasoning in Joseph is especially important because the Constitutional Court recognised that electricity supply occurs within a constitutional and statutory framework of basic municipal service delivery.

Accordingly, democratic electricity governance must balance:

financial sustainability + affordability + universal access + infrastructure reliability + constitutional accountability.

9. Democratic Accountability of Eskom and Municipalities

Energy democracy does not mean that consumers possess an unlimited entitlement to free electricity or that utilities cannot enforce legitimate payment obligations.

Instead, it requires that institutions exercising electricity-related public powers remain lawful, rational, transparent and accountable.

The Resilient Properties and Vaal River litigation demonstrates the complexity of this principle. Eskom has legitimate financial and grid-stability concerns, municipalities have constitutional service-delivery responsibilities, and residents have profound interests in uninterrupted access to infrastructure upon which everyday life depends.

Energy democracy therefore attempts to prevent institutional disputes from making communities invisible.

10. Conclusion

Energy democracy in South Africa means democratising both access to energy and power over energy decision-making. It moves electricity law beyond the narrow relationship between producer and consumer and places electricity within constitutional democracy, administrative justice, local government, environmental justice and socioeconomic transformation.

Joseph v City of Johannesburg establishes the importance of procedural fairness and the public-law dimension of electricity services. Eskom v Resilient Properties demonstrates that electricity interruptions affecting entire municipalities engage constitutional and cooperative-governance principles. Eskom v Vaal River Development Association further clarifies the respective constitutional responsibilities of Eskom and municipalities.

South Africa's continuing electricity-market reforms and transition toward renewable and decentralised generation add another dimension: citizens should increasingly be understood not merely as passive electricity consumers, but as participants, producers, community stakeholders and democratic rights-holders.

Therefore, the central principle of energy democracy can be expressed as:

Energy Democracy = Access + Affordability + Participation + Decentralisation + Procedural Fairness + Community Ownership + Accountability + Just Transition.

In this sense, energy democracy seeks to transform electricity from a system controlled primarily through institutional and economic power into a participatory system of constitutional and social governance serving the population as a whole.