The National Energy Regulator of South Africa has received two ministerial determinations enabling government to procure emergency and utility-scale projects to address the electricity deficit plaguing South Africa.
In terms of next steps, Nersa would typically initiate a three to six-month public comment period as well as public hearings in relation to the two determinations before giving its concurrence (a step that is required to give effect to the determinations). An expedited or dispensed with public-participation process, is however, likely to be required to curb the crisis we face and permitted by law.
In terms of the legal framework, both the National Energy Regulator Act and the Promotion of Administrative Justice Act (PAJA) require Nersa to observe procedural fairness and allow for public consultation in its decision-making processes. Generally, procedural fairness requires that, at minimum, affected persons be given adequate notice of the decision as well as a reasonable opportunity to make representations.
However, what qualifies as “adequate notice” and a “reasonable opportunity” are informed by the particular circumstances surrounding a decision. In other words, the requirements of procedural fairness are variable and context dependent and what qualifies as procedurally fair in one context may not be necessary to satisfy this requirement in another. The requirements of procedural fairness are applied in a flexible and nuanced way, giving particular emphasis to the context and circumstances in which an administrative action is taken, and an important consideration is the imperative of not inhibiting government’s ability to implement policy effectively by imposing overly onerous procedural obligations.
Importantly, PAJA allows for the requirements of procedural fairness to be departed from “if it is reasonable and justifiable in the circumstances” and prescribes a list of factors to be taken into account when assessing whether such a departure is justified. One such consideration is the urgency of taking the administrative action or the urgency of the matter. Accordingly, there is scope for the threshold for procedural fairness to be lowered in the context of urgency and emergencies.
The current electricity crisis facing South Africa is likely to qualify as both urgent and an emergency given that the entire economy, jobs and livelihoods of many South Africans are dependent on the adequate supply of electricity.
Following from this, an expedited public-participation process by Nersa or potentially even dispensing with the entire public-participation process may be permissible and necessary to enable a swift response by government to close the existing electricity supply deficit.
This is particularly the case given that a lengthy public consultation would defeat the very purpose of the two determinations – which is to secure energy on an urgent basis. There are also other legal options open to the government to speed up the procurement of energy including provisions that allow for deviation and/or exemption from the normal procurement requirements in cases of urgency and/or emergency.
Although Nersa and the Department of Mineral Resources and Energy may feel hesitant to expedite or bypass public consultation after a recent reprimand by the Western Cape High Court (for failing to adequately consult the public on a nuclear related matter) – the circumstances they currently face are entirely different. It is imperative that Nersa expedites the public-participation process to urgently deal with South Africa’s current energy supply deficit and the ever-present threat of load shedding and the laws governing the public-participation process are in their favour.
The authors are from Webber Wentzel. Megan Adderley has experience in judicial review proceedings in the High Courts and litigation relating to municipal powers and functions, among other areas. Melissa Hendrickse is an associate. Views expressed are their own.