1. Introduction

“Reimagining energy governance in a post-carbon South Africa” refers to the transformation of South Africa’s energy-law framework from one historically centred on coal-fired electricity and a vertically integrated state utility toward a low-carbon, climate-resilient, decentralised, competitive and socially just energy system.

The issue is not simply replacing coal with renewable energy. It requires restructuring the legal institutions that govern electricity generation, transmission, distribution, investment, environmental protection, energy access, electricity pricing, mining communities, workers and affected municipalities.

South Africa’s constitutional framework already provides an important foundation. Section 24 of the Constitution guarantees everyone the right to an environment that is not harmful to health or well-being and requires reasonable legislative and other measures promoting ecologically sustainable development while permitting justifiable economic and social development. The Climate Change Act 22 of 2024, which commenced principally on 17 March 2025, expressly seeks to facilitate a long-term just transition to a low-carbon and climate-resilient economy and society. (Government of South Africa)

At the same time, electricity governance is being structurally redesigned. The Electricity Regulation Amendment Act 38 of 2024, effective from 1 January 2025, provides for a Transmission System Operator, an open electricity-market platform and competitive electricity trading. (Government of South Africa)

Thus, post-carbon energy governance should be understood as a legal transformation of the energy system, rather than merely a technological transition.

2. Historical Structure of South African Energy Governance

South Africa's electricity system developed around:

extensive coal resources;

Eskom as the dominant electricity producer;

centralised generation;

regulated transmission and distribution;

state-directed electricity planning;

large coal-mining regions;

energy-intensive industries; and

relatively limited participation by distributed generators and consumers.

This model created significant economic and employment benefits but also produced substantial environmental and climate consequences.

The legal problem is therefore multidimensional. A transition away from carbon-intensive energy must simultaneously address:

electricity security;

affordability;

economic development;

employment;

environmental protection;

climate mitigation;

energy access;

regional development;

Eskom's institutional transformation; and

participation of private and community energy producers.

A post-carbon legal framework must reconcile these competing considerations rather than treating decarbonisation as an isolated environmental objective.

3. Constitutional Foundation

The constitutional foundation is particularly important because South African energy governance is subject to constitutional supremacy.

Section 24

Section 24 establishes two interconnected obligations:

protection against environmental harm; and

reasonable legislative and other measures for sustainable development.

The right therefore has both protective and developmental dimensions.

Energy projects can simultaneously affect:

climate change;

air quality;

water resources;

health;

employment;

land;

local communities; and

economic development.

Consequently, energy decision-making cannot be reduced to the question of whether electricity will be generated.

4. Fuel Retailers: Sustainable Development as Integrated Governance

A foundational case is Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Mpumalanga Province 2007 (6) SA 4 (CC).

The Constitutional Court examined the relationship between environmental protection and socio-economic development. It held that environmental decision-makers must consider relevant social, economic and environmental consequences rather than treating environmental protection as an isolated consideration. (SAFLII)

The case is particularly relevant to post-carbon energy governance because it supports an integrated model of sustainability.

The Court explained that sustainable development involves the integration of social, economic and environmental considerations into decision-making. NEMA's principles require decision-makers to consider the interests and needs of affected parties and to assess environmental and socio-economic impacts. (SAFLII)

Importance for post-carbon governance

The principle means that an energy transition cannot legally be designed exclusively around carbon reduction.

For example, closing a coal-fired power station may reduce emissions but simultaneously affect:

workers;

mining communities;

municipal revenue;

electricity reliability;

local businesses; and

household livelihoods.

A lawful transition therefore requires integrated planning.

5. Earthlife Africa and Climate-Change Assessment

One of the most important South African climate cases is Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others [2017] ZAGPPHC 58.

The case concerned the proposed 1,200 MW Thabametsi coal-fired power station in Limpopo. Earthlife challenged the environmental authorisation because climate-change impacts had not been adequately assessed before authorisation. (SAFLII)

The High Court held that climate-change impacts constituted relevant considerations under NEMA. The court emphasised that environmental decision-makers had to investigate and consider the climate consequences of the proposed coal project before making the authorisation decision. (SAFLII)

The judgment recognised that a climate-change impact assessment could include:

emissions over the project's lifetime;

vulnerability of the project to climate change;

water availability;

extreme-weather consequences; and

possible mitigation measures. (SAFLII)

Legal significance

Earthlife demonstrates a movement from traditional environmental regulation toward climate-responsive administrative decision-making.

For a post-carbon South Africa, this means major energy decisions should increasingly incorporate:

lifecycle greenhouse-gas emissions;

climate resilience;

stranded-asset risks;

water stress;

cumulative emissions;

alternative technologies; and

long-term transition pathways.

The case therefore provides an important judicial foundation for climate-conscious energy planning.

6. Climate Change Act 2024

The Climate Change Act 22 of 2024 represents a major development in the legal architecture.

Its stated objective is to facilitate an effective climate-change response and a long-term just transition to a low-carbon and climate-resilient economy and society. (Government of South Africa)

The Act is therefore significant because it moves climate governance beyond purely policy-based commitments toward a statutory framework.

The Act creates mechanisms concerning matters such as:

national climate-change response;

mitigation;

adaptation;

carbon budgets;

sectoral emission management;

climate governance;

the Presidential Climate Commission; and

coordination among different levels of government.

However, implementation remains important. When the Act commenced in March 2025, several provisions were deferred pending development of implementing regulations. (Forestry, Fisheries & Environment)

This illustrates an important principle of post-carbon governance:

Legislative ambition must be supported by institutional capacity, regulations, monitoring and enforcement.

7. From Eskom-Centred Governance to Electricity-Market Governance

Another major transformation concerns the structure of the electricity market.

The Electricity Regulation Amendment Act 38 of 2024 provides for:

a Transmission System Operator;

National Transmission Company South Africa;

an open electricity-market platform;

competitive electricity trading;

licensing reforms; and

additional generation and infrastructure arrangements. (Government of South Africa)

This creates the possibility of moving from a predominantly vertically integrated model toward a more competitive and functionally separated electricity system.

Such reform has major consequences for post-carbon energy governance.

Renewable energy is inherently compatible with diversified generation because electricity can increasingly come from:

utility-scale solar;

wind;

battery storage;

rooftop solar;

embedded generation;

independent power producers;

municipal generation;

community energy projects; and

potentially green hydrogen-related systems.

The regulatory framework therefore needs to facilitate market participation while maintaining system reliability.

8. Regulatory Independence and NERSA

The National Energy Regulator of South Africa (NERSA) remains central to energy governance.

A post-carbon regulatory model requires regulators to balance:

consumer protection;

electricity affordability;

utility financial sustainability;

competition;

investment;

reliability;

decarbonisation; and

technological innovation.

The regulator's role consequently changes from simply regulating traditional utilities toward regulating an increasingly complex energy ecosystem.

Regulatory independence becomes particularly important where government owns major energy enterprises while simultaneously setting energy policy.

9. Eskom, Constitutional Rights and Energy Security

The constitutional implications of electricity governance were strongly illustrated in United Democratic Movement and Others v Eskom Holdings SOC Ltd and Others [2023] ZAGPPHC 1949.

The High Court addressed the electricity crisis and loadshedding and held that failures associated with the electricity crisis constituted breaches of constitutional obligations concerning rights protected by the Bill of Rights. It also addressed challenges to NERSA tariff determinations. (SAFLII)

The case demonstrates that electricity governance is not merely an economic or technical question.

Reliable electricity affects:

health facilities;

schools;

policing;

businesses;

households;

communications; and

economic activity.

Consequently, a post-carbon transition must avoid treating decarbonisation and electricity reliability as legally separate objectives.

10. Just Transition as a Legal Principle

A post-carbon South Africa must address the consequences of decarbonisation for coal-dependent communities.

A just-transition framework should include:

Workers

Coal workers may require:

retraining;

alternative employment;

social protection;

pension arrangements; and

participation in transition planning.

Mining communities

Communities dependent upon coal mining and coal-fired generation may need:

economic diversification;

infrastructure investment;

alternative industries;

environmental rehabilitation; and

municipal revenue replacement.

Consumers

Households must be protected against:

excessive electricity prices;

energy poverty;

unreliable supply; and

unequal access to clean-energy technologies.

Thus, “just transition” should become an operational principle of energy regulation rather than merely a policy slogan.

11. Decentralised Energy Governance

The post-carbon system will probably involve much greater decentralisation.

Traditional governance assumed:

Large generator → transmission system → distributor → consumer

The emerging model increasingly resembles:

Utility + IPPs + municipalities + households + businesses + storage + communities → interconnected electricity market

This creates new legal questions concerning:

grid connection;

wheeling;

distributed generation;

net billing;

electricity trading;

battery storage;

smart meters;

cybersecurity;

consumer protection;

licensing thresholds; and

municipal electricity revenues.

The law therefore needs to accommodate the prosumer—a person or entity that both consumes and produces electricity.

12. Energy Justice

Post-carbon governance must also address distributive and procedural justice.

Distributive justice

Who receives the benefits of renewable investment?

Procedural justice

Who participates in decisions?

Recognition justice

Whose interests and knowledge are recognised?

This approach is consistent with the broader environmental-governance principles discussed in Fuel Retailers, where the Constitutional Court recognised the importance of considering the interests, needs and values of affected parties. (SAFLII)

Energy transition projects should therefore incorporate meaningful public participation, particularly where projects affect:

indigenous communities;

rural populations;

mining regions;

agricultural land;

municipalities; and

vulnerable households.

13. Environmental Authorisation and Renewable Energy

A post-carbon transition does not mean renewable projects should automatically receive regulatory approval.

Solar farms, wind farms, transmission lines, battery facilities and hydrogen projects can create environmental impacts involving:

biodiversity;

birds and wildlife;

land;

water;

visual impacts;

cultural heritage; and

community interests.

The Fuel Retailers and Earthlife principles therefore remain relevant even when the proposed technology is renewable.

The legal question should become:

How can clean-energy infrastructure be developed rapidly while maintaining lawful environmental safeguards?

This requires streamlined but rigorous environmental assessment rather than elimination of environmental regulation.

14. Transmission Infrastructure as a Central Legal Priority

One of the most important challenges of a renewable-energy system is transmission.

South Africa has substantial renewable-energy potential, but generation resources and demand centres are not always geographically aligned.

Consequently, post-carbon governance requires legal frameworks for:

transmission expansion;

grid access;

connection queues;

cost allocation;

land acquisition;

environmental authorisation;

cross-provincial infrastructure;

independent transmission operation; and

investment recovery.

The 2024 electricity reform legislation's creation and assignment of functions to the Transmission System Operator/National Transmission Company South Africa is therefore particularly significant. (Government of South Africa)

15. Carbon Budgets and Sectoral Regulation

The Climate Change Act introduces a framework under which carbon-intensive activities can increasingly be governed through legally structured mitigation mechanisms.

The regulatory direction includes:

carbon budgets;

mitigation plans;

sectoral emission targets; and

greenhouse-gas reporting.

As of 2026, the South African government has continued developing implementation regulations concerning carbon budgets and mitigation plans. (Forestry, Fisheries & Environment)

This could fundamentally change energy governance.

Instead of asking only:

“How much electricity does South Africa require?”

future planning increasingly asks:

“How much electricity is required, from which technologies, with what emissions, at what social cost, and consistent with South Africa's climate obligations?”

16. The Role of Courts in Post-Carbon Governance

South African courts can influence the transition through several legal doctrines.

A. Administrative law

Energy decisions can be reviewed where authorities:

ignore relevant considerations;

consider irrelevant factors;

act irrationally;

fail to follow mandatory procedures; or

violate statutory requirements.

B. Constitutional environmental rights

Section 24 can influence interpretation of environmental and energy legislation.

C. Sustainable development

Courts can require decision-makers to integrate environmental, social and economic considerations.

D. Public participation

Affected communities must receive legally adequate opportunities to participate where legislation requires it.

E. Intergenerational considerations

Environmental protection is expressly connected to present and future generations.

Earthlife is especially significant because it demonstrates that climate considerations can form part of the legality of major energy decisions. (SAFLII)

17. Key Case Laws

The first three are particularly useful when analysing the relationship between environmental sustainability, climate transition and electricity security.

18. Future Model of South African Energy Governance

A mature post-carbon governance framework could rest on eight interconnected pillars:

1. Climate-compatible planning

Energy planning should be consistent with legally established climate objectives.

2. Independent regulation

Regulatory institutions should operate transparently and with appropriate institutional independence.

3. Competitive electricity markets

Generation and trading should increasingly accommodate multiple participants.

4. Strong transmission governance

Transmission infrastructure should be treated as strategic national infrastructure.

5. Energy justice

Transition costs and benefits should be distributed fairly.

6. Decentralisation

Households, municipalities, communities and businesses should participate where technically and legally appropriate.

7. Environmental integrity

Renewable projects should remain subject to appropriate environmental safeguards.

8. Accountability

Eskom, regulators, ministers, municipalities and private participants should remain subject to administrative, constitutional and statutory accountability.

19. Conclusion

Reimagining energy governance in a post-carbon South Africa requires more than replacing coal-fired power stations with renewable generation. It involves a fundamental reconstruction of the legal architecture of energy governance.

The constitutional environmental right, the sustainable-development principles recognised in Fuel Retailers, the climate-sensitive administrative-law approach illustrated by Earthlife, and the constitutional implications of electricity reliability highlighted in UDM v Eskom collectively provide important legal foundations for this transformation. (SAFLII)

The Climate Change Act 22 of 2024 adds a statutory climate-governance framework, while the Electricity Regulation Amendment Act 38 of 2024 begins restructuring the electricity market through transmission-system reform and competitive electricity trading. (Government of South Africa)

The central legal challenge is therefore to reconcile four objectives:

decarbonisation + electricity security + affordability + justice.

A successful post-carbon governance system will require these objectives to be addressed together. South African energy law is consequently moving from a model primarily concerned with producing and regulating electricity toward one concerned with governing an interconnected climate, energy, economic and social transition.