ENERGY GOVERNANCE UNDER TRANSFORMATIVE CONSTITUTIONALISM

1. Meaning and Concept

Energy governance under transformative constitutionalism refers to the regulation, production, distribution and administration of energy in a manner that actively advances the transformative objectives of the Constitution. In the South African context, transformative constitutionalism requires the legal system to do more than restrain arbitrary governmental power. It requires law and public institutions to assist in transforming a society historically characterised by racial inequality, poverty, exclusion and unequal access to basic services.

Applied to energy governance, this means that electricity cannot be treated merely as a commodity or technical infrastructure. It is closely connected to dignity, equality, housing, education, health, economic participation and social development. Energy institutions such as Eskom, municipalities, regulators, environmental authorities and national government therefore exercise powers that can profoundly affect constitutional transformation.

Transformative energy governance asks whether the energy system distributes benefits and burdens fairly and whether it improves the material conditions of historically disadvantaged communities.

2. Transformative Constitutionalism and Energy

South Africa's Constitution does not expressly recognise a standalone right to electricity. However, access to electricity can facilitate the enjoyment of several constitutional rights.

Energy is necessary for lighting, heating, cooking, communication, education, healthcare and economic activity. Consequently, electricity governance has a strong relationship with sections 9, 10, 24, 26, 27, 33, 152 and 195 of the Constitution.

Transformative constitutionalism therefore requires energy governance to reflect principles of:

substantive equality;

human dignity;

social justice;

environmental sustainability;

administrative fairness;

public participation;

accountability; and

progressive institutional reform.

The central idea is that energy policy should contribute to changing unequal social and economic structures rather than merely preserving existing patterns of access.

3. Joseph v City of Johannesburg

The leading electricity-service case is Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55 (CC).

The applicants were tenants in an apartment building whose electricity supply was disconnected because their landlord had accumulated arrears. The tenants themselves did not have a direct contractual relationship with City Power.

The Constitutional Court rejected an approach based purely on contract. It recognised the special public-law relationship between municipalities and residents and emphasised that municipal electricity provision occurs within constitutional and statutory obligations governing basic services.

The Court held that the tenants were entitled to procedural fairness before disconnection because termination materially and adversely affected their rights. City Power therefore had to provide appropriate notice before terminating the service.

Transformative Importance

Joseph is a powerful example of transformative constitutionalism because it moves electricity law beyond traditional private-law ideas.

The relationship is not simply:

Supplier → Contractual Customer

Instead, it becomes:

Public Authority → Constitutional Duties → Residents and Communities.

The judgment therefore recognises that essential services should be governed through principles of fairness, responsiveness and accountability, particularly where vulnerable persons may be affected.

4. Section 195 and Transformative Administration

Section 195 of the Constitution establishes fundamental principles governing public administration.

Public services must be provided:

fairly, equitably, impartially and without bias.

Public administration must also be accountable, transparent and responsive to people's needs.

In Joseph, the Constitutional Court expressly connected procedural fairness in electricity provision with these constitutional values. It emphasised that municipalities operate at the front line of interaction between citizens and government and that procedural fairness helps maintain trust in public administration and participatory democracy.

This illustrates an important feature of transformative constitutionalism:

Energy administration itself must be transformed.

It is insufficient simply to increase generating capacity. The institutions delivering electricity must also operate according to democratic constitutional values.

5. Earthlife Africa Johannesburg v Minister of Energy

Transformative constitutionalism also affects national energy planning.

In Earthlife Africa Johannesburg and Another v Minister of Energy and Others [2017] ZAWCHC 50, the Western Cape High Court considered major governmental decisions connected with South Africa's proposed nuclear procurement programme.

The case involved determinations regarding the procurement of approximately 9,600 MW of nuclear generation capacity. The Court reviewed the legality of important decisions made under the statutory framework governing new electricity generation capacity.

The Court ultimately set aside important governmental decisions associated with the programme.

Transformative Principle

The broader significance is that large energy projects cannot be insulated from constitutional scrutiny merely because they are politically important or technically complex.

Under transformative constitutionalism:

Energy Security + Constitutional Legality must operate together.

Major energy decisions must therefore respect statutory authority, rationality, transparency and participatory requirements.

This prevents energy infrastructure from becoming an area of uncontrolled executive power.

6. Earthlife Africa v Minister of Environmental Affairs – Thabametsi

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

The dispute concerned environmental authorisation for the proposed 1,200 MW Thabametsi coal-fired power station in Limpopo.

Earthlife argued that climate-change impacts had not been adequately considered before authorisation.

The High Court recognised that climate impacts were legally relevant to the environmental assessment of the project. The case required decision-makers to engage meaningfully with the climate consequences of long-term coal infrastructure.

Transformative Significance

The case shows that transformation is not limited to redistribution between rich and poor.

Modern constitutional transformation must also take account of environmental justice and intergenerational equity.

Energy development can create employment and improve electricity security, but it can simultaneously impose environmental burdens on communities and future generations.

Transformative governance therefore seeks an integrated balance between:

Development + Energy Security + Environmental Protection + Social Justice.

7. Substantive Equality in Energy Governance

Section 9 of the Constitution protects equality.

Transformative constitutionalism emphasises substantive rather than purely formal equality.

Formal equality asks:

“Is everyone governed by the same electricity rule?”

Substantive equality asks:

“What effect does that rule have on people who occupy very different social and economic positions?”

For example, a uniform tariff increase may formally apply equally to all consumers, but its practical consequences may be drastically different for wealthy households and low-income households.

Transformative energy governance therefore supports mechanisms such as:

lifeline tariffs, free basic electricity, indigent policies, targeted subsidies and equitable electrification programmes.

These mechanisms attempt to address structural inequality rather than pretending that all electricity consumers begin from the same economic position.

8. Energy and Human Dignity

Section 10 protects human dignity.

Although electricity is not expressly listed as an independent constitutional right, modern life makes reliable energy strongly connected to dignified living.

Without electricity, individuals may struggle to refrigerate food, study at night, communicate, access digital services or safely illuminate their homes.

The reasoning in Joseph demonstrates this deeper constitutional relationship. Electricity provision was treated as part of a public-law service relationship rather than merely a private commercial transaction.

Transformative constitutionalism therefore encourages energy law to recognise the human consequences of infrastructure decisions.

9. Participatory Energy Democracy

Transformative constitutionalism also requires meaningful citizen participation.

Traditional energy governance often followed a highly technocratic model:

Government → Utility → Consumer

Modern transformative governance moves toward:

Government ↔ Regulator ↔ Municipality ↔ Communities ↔ Civil Society ↔ Independent Producers ↔ Consumers.

Cases such as the Earthlife litigation demonstrate the role of civil-society organisations in challenging major national energy decisions and environmental authorisations.

Participation enhances legitimacy because affected communities are not treated merely as passive recipients of energy policy.

10. Transformative Energy Transition

The transition from fossil fuels toward renewable energy also raises transformative constitutional questions.

A constitutionally transformative energy transition should not simply replace:

Coal → Solar + Wind

while preserving the same patterns of poverty and exclusion.

Instead, it should consider:

worker protection, community ownership, affordable electricity, regional inequality, access to employment, environmental restoration and economic participation.

This is increasingly described as a just energy transition.

Transformative constitutionalism gives the just transition a deeper constitutional foundation because transformation requires environmental reform to occur alongside socioeconomic justice.

11. Role of Courts

Courts play an important but limited role.

Through cases such as:

Joseph v City of Johannesburg – procedural fairness and electricity access;

Earthlife Africa v Minister of Energy – legality and accountability in national energy planning;

Earthlife Africa v Minister of Environmental Affairs (Thabametsi) – climate considerations in energy development;

courts establish constitutional boundaries within which energy policy must operate.

However, transformative constitutionalism does not mean that judges should design electricity systems.

Courts establish constitutional standards, while elected government, municipalities, regulators and specialised institutions remain responsible for implementing energy policy.

12. Transformative Energy Governance Model

The concept can be expressed as:

TRANSFORMATIVE ENERGY GOVERNANCE

=

ENERGY SECURITY

+ SUBSTANTIVE EQUALITY

+ HUMAN DIGNITY

+ ACCESS TO BASIC SERVICES

+ ENVIRONMENTAL JUSTICE

+ PARTICIPATORY DEMOCRACY

+ ADMINISTRATIVE FAIRNESS

+ ACCOUNTABILITY

The effectiveness of an energy system therefore cannot be judged solely by megawatts generated.

A constitutionally successful energy system must also consider who receives electricity, who pays for it, who participates in decision-making, who bears environmental burdens and whether institutions exercise power lawfully and fairly.

13. Conclusion

Energy governance under transformative constitutionalism treats electricity infrastructure as part of the broader constitutional project of restructuring society.

The Constitution therefore influences not only whether electricity is produced but how energy institutions exercise power, how electricity is distributed, how vulnerable communities are treated and how environmental burdens are allocated.

Joseph v City of Johannesburg demonstrates that municipal electricity services are governed by public-law duties of fairness and responsiveness. Earthlife Africa v Minister of Energy demonstrates that major national energy programmes remain subject to legality and constitutional accountability. Earthlife Africa v Minister of Environmental Affairs (Thabametsi) demonstrates that energy development must incorporate environmental and climate considerations.

The ultimate principle is:

TRANSFORMATIVE CONSTITUTIONALISM REQUIRES ENERGY LAW TO TRANSFORM BOTH INFRASTRUCTURE AND SOCIAL RELATIONS.

Energy governance therefore becomes a constitutional instrument through which South Africa may pursue equality, dignity, democratic participation, environmental sustainability and social justice, rather than merely a technical system for producing and distributing electricity.