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Court case to decide on the power of municipalities to develop their own electricity

8 May 2020 at 3:07 pm

Next week (11 and 12 May) the City of Cape Town (CoCT), the Minister of Mineral Resources and Energy and the National Energy Regulator (NERSA), with the Centre for Environmental Rights as amicus curiae, head to the virtual High Court in Pretoria for the hearing of arguments before Judge Windell, on the question of local government’s rights to procure electricity.

The case will determine municipalities’ legal power to procure electricity under the Electricity Regulation Act, 2006 without permission – a determination – from the Minister of Mineral Resources and Energy. If the CoCT wins the case, it will set a precedent for other municipalities and large power consumers to procure power directly from independent power producers.

The Centre for Environmental Rights’ (CER) application to be admitted as a friend of the court (amicus curiae) in this legal dispute seeks to highlight, and bring to the attention of the Court, the Constitutional obligations of local government to protect the environment, including people’s health and wellbeing.

WHAT: City of Cape Town Clean Energy Case

WHEN: Monday 11th and Tuesday 12th May 2020

WHERE: By virtual hearing.

WHO: The Centre for Environmental Rights (CER); City of Cape Town, National Energy Regulator (NERSA) and the Minister of Mineral Resources and Energy

WHY: The Constitutional obligations of local government are a central focus of the case. The CER contends that, not only does local government have a duty to provide affordable and accessible electricity services to people, but it also must provide clean and healthy electricity, which does not give rise to harmful air and water pollution or climate change.

The City of Cape Town’s plans to procure renewable energy capacity would be aligned with these Constitutional obligations, as local government should play a vital role in decarbonising and transitioning the electricity sector from harmful fossil fuel-based electricity to renewable (solar and wind) capacity. Municipalities across the country have expressed a desire to play an active role in the energy transition and to supply people with clean, affordable renewable electricity. The Constitution demands that local government be supported in achieving this, particularly in the face of Eskom’s electricity supply constraints and the need for affordable electricity amidst the country’s economic downturn and rising living costs.

NOTE: On 5 May 2020, the Minister published, for public comment within 30 days, proposed amendments to the Electricity Regulations on New Generation Capacity. If passed in their current form, these amendments would allow municipalities in good financial standing to apply to the Minister to establish new generation capacity in accordance with the Integrated Resource Plan for Electricity. This application would have to be aligned to the municipality’s Integrated Development Plan, and accompanied by a detailed feasibility study and such further information as the Minister requests to make a determination. While relevant to this case, none of the parties to the litigation have, as yet taken, or indicated whether they intend to take any, particular steps in light of this draft amendment.  These Regulations would not address the main relief sought by the City of Cape Town – that local governments have the power to procure electricity without requiring permission from the Minister.

END

NOTES TO EDITOR

Download the court papers, including CER’s application to intervene as an amicus.

The Centre for Environmental Rights publishes this media advisory acknowledging the extraordinary circumstances of this moment and the devastating impacts of COVID-19 on lives, health, and livelihoods for people around the world and in our country. We stand in solidarity with our people during these challenging times.

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Section 24of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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