The legal autonomy of municipalities in energy governance in South Africa

Abstract

South Africa is beset with energy challenges as a result of contemporary problems such as urbanisation, climate change and governance issues. Due to these challenges, South Africa contends with energy (in)security and energy poverty, both of which threaten developmental gains made since 1994. Recent proposals for including local government in energy governance are some of the solutions for addressing the energy crisis. The proposals seek to decrease the overreliance of municipalities on Eskom for electricity generation and procurement by making them proactive role players in energy governance. This study questions the legal autonomy of local government in energy governance in South Africa. While local government enjoys extensive legal autonomy to govern within its jurisdiction, its autonomy is limited to gas and electricity reticulation. However, Regulations (GN 1093 in GG 43810 of 16 October 2020), which were published in terms of the Electricity Regulation Act 6 of 2006 allow local government to either generate or procure electricity, subject to certain conditions. These Regulations essentially extend the area of competency of municipalities from being reticulators to generators and procurers of electricity. This new development warrants a study to determine whether municipalities can take up this extended role. The findings in this study suggest that local government is an invaluable stakeholder that can make a significant contribution to addressing energy (in)security and energy poverty in the country. Furthermore, the study finds that although the legal autonomy of local government in energy governance has been limited, the Regulations extend their competency to be proactive in energy governance. Since this is a new development, the study further discusses the experiences of Morocco, Kenya and Ghana to distil lessons for South Africa.