Introduction

Energy transition refers to the transformation of an energy system from dependence on conventional fossil-fuel generation toward a more diversified system involving renewable energy, storage, distributed generation, energy efficiency and lower-carbon technologies. In South Africa, this transition is not merely a technical or economic process. It is also a constitutional governance process, because decisions about electricity affect public services, environmental protection, administrative justice, municipal government, public participation and socio-economic welfare.

The Constitution therefore provides the legal framework within which energy institutions must manage both energy security and energy transformation. Courts have increasingly examined whether governmental and regulatory decisions concerning electricity infrastructure, tariffs, environmental protection and new energy projects comply with constitutional principles.

Constitutional Foundations Of Energy Governance

Several constitutional provisions are particularly relevant to energy transition. Section 24 protects the right to an environment that is not harmful to health or well-being and requires reasonable legislative and other measures to secure ecologically sustainable development. Sections 152 and 153 establish important municipal responsibilities concerning service delivery. Sections 33 and 195 require lawful, reasonable, procedurally fair and accountable public administration.

Energy transition therefore requires government to balance multiple constitutional interests:

reliable electricity supply;

environmental sustainability;

socio-economic development;

public participation;

equality and fairness;

municipal service-delivery responsibilities;

administrative accountability; and

intergenerational environmental interests.

Energy Transition As A Constitutional Process

A transition from coal-dominated electricity toward renewable generation changes the institutional structure of the electricity sector. Independent power producers, solar and wind projects, battery storage, grid expansion and distributed generation create new regulatory relationships.

The constitutional question is therefore not simply whether renewable technology is technically possible. It is whether the institutions responsible for the transition exercise their powers lawfully, rationally, transparently and consistently with constitutional rights.

This makes energy transition a governance issue as much as a technological issue.

Case Law: Eskom Holdings SOC Ltd v Vaal River Development Association

In Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others [2022] ZACC 44, the Constitutional Court considered electricity supply, municipal responsibilities and Eskom's relationship with municipalities.

The Court recognised the constitutional importance of electricity supply and examined the interaction between Eskom's statutory powers, municipal constitutional responsibilities and the broader electricity regulatory framework. The judgment explains that the regulatory scheme is designed to operate consistently with the constitutional role of municipalities in providing electricity to residents.

The case is important to energy transition because structural reform cannot ignore existing constitutional allocations of responsibility. New generation models and electricity-market reforms must operate within a constitutional institutional framework.

Case Law: United Democratic Movement v Eskom

In United Democratic Movement and Others v Eskom Holdings SOC Ltd and Others [2023] ZAGPPHC 1949, the High Court considered litigation concerning South Africa's electricity crisis and load shedding.

The judgment addressed failures concerning electricity generation, infrastructure planning, maintenance, procurement and regulatory decisions and concluded that the continuing electricity crisis involved constitutional implications for the protection and promotion of rights in the Bill of Rights.

The case illustrates an important constitutional principle for energy transition: transition cannot be separated from energy security. Moving toward a new energy structure must still maintain essential electricity services and protect affected communities.

Case Law: Afriforum NPC v NERSA

In Afriforum NPC v National Energy Regulator of South Africa and Others [2025] ZAGPPHC 1305, the High Court considered NERSA's regulatory processes concerning municipal electricity tariffs.

The Court stressed that specialist regulatory expertise does not exempt NERSA from constitutional and statutory obligations, particularly obligations involving public participation and municipal budgeting.

This is significant for energy transition because regulators must manage technically complex reforms while maintaining procedural legitimacy. A technically sophisticated energy decision can still be legally defective if mandatory participation or accountability requirements are ignored.

Case Law: Minister Of Mineral Resources And Energy v Sustaining The Wild Coast

In Minister of Mineral Resources and Energy and Others v Sustaining the Wild Coast NPC and Others [2024] ZASCA 84, the Supreme Court of Appeal considered legal challenges concerning offshore oil and gas exploration.

The Court emphasised that where unlawful conduct is established, constitutional remedies under section 172 must be appropriate and just and equitable. It also cautioned against remedies that would have unnecessarily broad consequences beyond the particular legal defect.

The case demonstrates that constitutional governance of energy transition involves both environmental protection and carefully structured remedies. Courts must enforce environmental and constitutional requirements while respecting the institutional roles of government and regulators.

Case Law: Topigs Norsvin v Eskom

A particularly recent example is Topigs Norsvin (Pty) Ltd v Eskom Holdings SOC Ltd and Others [2026] ZASCA 108.

The Supreme Court of Appeal dealt with environmental obligations associated with Eskom's Kusile Power Station. The Court recognised the tension between industrial development and economic activity on one side and environmental preservation for present and future generations on the other. It held that certain respondents had breached duties under environmental legislation and that the conduct concerned constituted a breach of section 24 of the Constitution.

The decision demonstrates that constitutional environmental governance remains relevant even where energy infrastructure is important for national electricity supply.

Energy Transition And Administrative Justice

Energy transition involves numerous administrative decisions:

electricity licences;

generation approvals;

grid connections;

environmental authorisations;

tariff determinations;

procurement decisions;

municipal electricity arrangements; and

infrastructure approvals.

These decisions must generally comply with legality, rationality, procedural fairness and applicable statutory requirements.

In NERSA v PG Group, the Constitutional Court demonstrated that specialised energy regulation remains subject to constitutional standards of rational decision-making. Regulatory expertise does not eliminate judicial review where a regulator fails to consider legally relevant factors.

Public Participation And Energy Transition

Constitutional governance also requires meaningful participation.

Large renewable projects, transmission infrastructure, coal-transition programmes and electricity tariff reforms can affect communities, municipalities, workers and businesses.

Participation is therefore important for:

transparency;

accountability;

procedural fairness;

identification of environmental and social impacts; and

institutional legitimacy.

The Afriforum v NERSA litigation illustrates the importance of public participation in regulatory decision-making, particularly where tariff decisions affect municipal planning and budgets.

Just Transition And Constitutional Governance

A constitutional energy transition must consider not only the replacement of technologies but also the people and communities affected by structural change.

Coal-dependent communities may experience changes in employment, local economic activity and municipal revenue when coal-based electricity generation declines. At the same time, communities may benefit from renewable investment, new infrastructure and decentralised generation.

Constitutional governance therefore requires institutions to consider the broader consequences of transition rather than treating decarbonisation as an exclusively technical exercise.

Institutional Accountability

Energy transition involves numerous institutions, including:

national government;

Parliament;

NERSA;

Eskom;

municipalities;

environmental authorities;

independent power producers; and

other public regulatory bodies.

The constitutional framework requires these institutions to exercise their powers within defined legal limits.

Recent South African litigation reinforces this principle. In Eskom Holdings SOC Ltd v Botha and Others [2026] ZASCA 48, the SCA considered Eskom's status within the constitutional framework and referred to the constitutional responsibilities associated with Eskom and electricity governance.

Environmental Sustainability And Energy Transition

Section 24 creates an important constitutional foundation for the transition toward cleaner energy. However, constitutional environmental governance does not necessarily require every conventional energy activity to cease immediately.

Instead, the legal framework requires decision-makers to consider environmental consequences, applicable legislation, sustainable development and the rights of present and future generations.

The Topigs Norsvin judgment demonstrates how environmental obligations can impose enforceable duties upon energy-sector actors while courts remain attentive to institutional competence and appropriate remedies.

Conclusion

Energy transitions and constitutional governance are closely connected because changing the energy system simultaneously changes the exercise of public power, the provision of essential services, environmental obligations and relationships between national, municipal and regulatory institutions.

South African case law demonstrates several principles. Eskom v Vaal River Development Association highlights the constitutional structure governing electricity supply; United Democratic Movement v Eskom demonstrates the constitutional consequences of electricity-system failures; Afriforum v NERSA emphasises regulatory accountability and public participation; Sustaining the Wild Coast illustrates constitutional environmental governance and appropriate remedies; and Topigs Norsvin v Eskom demonstrates the enforceability of environmental obligations affecting major energy infrastructure.

Ultimately, constitutional governance provides the framework within which energy transition must occur: energy security, environmental sustainability, administrative legality, public participation, institutional accountability and socio-economic interests must operate within the constitutional order.