ENERGY GOVERNANCE OUTSIDE FORMAL CONSTITUTIONAL DESIGN

1. Introduction

Energy governance is often understood through the formal constitutional structure of the State: Parliament makes laws, the executive develops energy policy, regulators issue licences and municipalities provide electricity services. However, modern energy governance operates far beyond these formally designed constitutional institutions.

Electricity systems are governed through a much wider network consisting of:

state-owned utilities;

independent regulators;

municipalities;

private generators;

transmission and distribution operators;

courts;

financial institutions;

environmental authorities;

technical standards bodies;

electricity-market institutions;

consumers and communities;

infrastructure operators; and

increasingly, digital and automated systems.

Thus, the practical constitutional order of energy may be different from the constitutional design appearing in a constitutional text.

South African electricity litigation provides a particularly strong illustration. The Constitution does not expressly create Eskom or expressly establish an individual fundamental right to electricity. Nevertheless, courts have increasingly examined Eskom, NERSA, municipalities and electricity-supply systems through constitutional principles such as legality, cooperative government, administrative justice, socio-economic rights and the rule of law. The Constitutional Court has described the statutory electricity regulatory scheme as giving effect to the constitutional design concerning municipal electricity supply.

The central proposition is therefore:

Energy governance is not confined to formal constitutional institutions; it emerges from the interaction between constitutional principles, legislation, regulators, public utilities, municipalities, markets, infrastructure and everyday administrative practices.

2. Meaning of "Outside Formal Constitutional Design"

Formal constitutional design refers to the institutions and powers expressly established by a constitution.

For example:

Constitution → Parliament → Executive → Courts → Provinces → Municipalities

But the actual energy system may operate through:

Constitution + legislation + regulator + Eskom + municipalities + IPPs + markets + grid operators + technical standards + contracts + courts + consumers

This creates a second layer of governance.

It can be called informal, networked or functional constitutional governance.

The constitutional text may not specify every institution involved in electricity governance, but those institutions can nevertheless exercise enormous practical power over people's lives.

3. Why Energy Governance Escapes Formal Constitutional Categories

A. Infrastructure Creates Practical Power

Electricity governance is heavily dependent on infrastructure.

A person may possess constitutional rights formally, but the practical ability to exercise those rights can depend on:

electricity availability;

grid connection;

water and sanitation infrastructure;

telecommunications;

hospitals;

schools;

transportation; and

digital infrastructure.

Therefore, infrastructure operators can possess significant functional power even when they are not traditional constitutional institutions.

Eskom is an important example.

The Constitution does not expressly establish Eskom. Nevertheless, courts have treated Eskom as an organ of state for important constitutional purposes. A recent Supreme Court of Appeal judgment again examined Eskom's status as an organ of state and its relationship with constitutional responsibilities.

4. Energy Governance Through Statutory Institutions

The first major mechanism operating outside formal constitutional design is statutory governance.

Parliament creates institutions through legislation rather than directly through the Constitution.

NERSA is an example.

Its authority derives principally from legislation rather than from a specific constitutional chapter creating an electricity regulator.

Yet its decisions concerning:

electricity tariffs;

licences;

regulatory rules;

generation;

transmission;

distribution; and

market participation

can have enormous constitutional consequences.

The result is that ordinary legislation becomes a bridge between constitutional principles and technical energy governance.

5. Eskom as a Constitutional Actor Without Being a Constitutional Institution

Eskom demonstrates the difference between formal and functional constitutional design.

Eskom is a state-owned company rather than a traditional constitutional institution such as Parliament or a court.

Nevertheless, electricity supply decisions by Eskom can affect:

municipal constitutional functions;

access to essential services;

economic activity;

public health;

education;

water supply;

public safety; and

the functioning of other organs of state.

The courts have therefore examined Eskom's conduct through constitutional standards.

In Eskom Holdings SOC Ltd v Resilient Properties (Pty) Ltd, the Supreme Court of Appeal considered Eskom's proposed interruption of electricity to municipalities and emphasised cooperative governance, rationality and the constitutional responsibilities of municipalities.

This illustrates a crucial principle:

A body does not need to be named in the Constitution to become constitutionally significant.

6. Case Law: Eskom Holdings SOC Ltd v Resilient Properties

Facts

Eskom sought to interrupt electricity supply to municipalities that had accumulated substantial electricity debts.

The municipalities and other parties challenged the proposed interruptions.

The dispute raised questions concerning:

Eskom's statutory powers;

municipal constitutional responsibilities;

cooperative governance;

rationality;

self-help; and

the consequences of electricity interruption.

Judgment

The Supreme Court of Appeal considered the constitutional principle of cooperative government and found that Eskom's decisions could not simply be understood as ordinary commercial decisions.

The court considered the consequences for municipalities and their constitutional service-delivery responsibilities.

Significance

This case shows how constitutional governance enters an area that might initially appear to be merely contractual or commercial.

Electricity debt → Eskom decision → municipal capacity → constitutional service delivery

A supposedly ordinary electricity-supply decision can therefore become a constitutional issue.

7. Municipalities as Energy-Governance Nodes

Municipalities are another example of governance existing beyond a simple constitutional hierarchy.

Electricity governance involves multiple spheres:

National Government ↔ NERSA ↔ Eskom ↔ Municipalities ↔ Consumers

The relationship is not simply hierarchical.

Municipalities have constitutional responsibilities concerning service delivery, while national institutions regulate electricity generation and transmission.

The Constitutional Court in Eskom Holdings SOC Ltd v Vaal River Development Association examined this regulatory structure and stressed that the electricity framework must be understood together with the constitutional role of municipalities.

The Court observed that the regulatory scheme is designed to give effect to the constitutional structure under which electricity is made available to residents.

This demonstrates constitutional governance through institutional interaction.

8. Case Law: Eskom Holdings v Vaal River Development Association

Facts

Residents and community organisations challenged aspects of electricity supply and regulation involving Eskom.

The litigation raised an important question:

Where does the legal right to electricity come from?

The Constitution does not expressly state:

"Everyone has a fundamental right to electricity."

Nevertheless, electricity is closely connected with the enjoyment of other constitutional rights and municipal service-delivery obligations.

Constitutional Significance

The Constitutional Court considered the entire regulatory framework rather than looking only at one provision of the Electricity Regulation Act.

It recognised the constitutional centrality of municipalities in supplying electricity to residents and the way the statutory scheme interacts with constitutional responsibilities.

Principle

The case demonstrates constitutionalisation through statutory architecture.

A right or governance obligation can become constitutionally important because multiple legal institutions collectively give effect to constitutional objectives.

9. Energy Governance Through Administrative Law

Energy governance also escapes formal constitutional design through administrative law.

Energy regulators and officials make thousands of decisions involving:

licences;

tariffs;

environmental authorisations;

procurement;

grid connections;

generation capacity;

infrastructure;

compliance; and

enforcement.

These decisions may not look like constitutional decisions.

Nevertheless, section 33 of the Constitution and the Promotion of Administrative Justice Act can subject many such decisions to legality, reasonableness and procedural fairness requirements.

The result is:

Technical energy decision → administrative law → constitutional accountability

10. Case Law: Earthlife Africa Johannesburg v Minister of Energy

In Earthlife Africa Johannesburg v Minister of Energy, civil-society organisations challenged South Africa's proposed nuclear procurement programme.

The Minister had made section 34 determinations under the Electricity Regulation Act concerning 9,600 MW of nuclear generation capacity.

The case involved:

electricity planning;

procurement;

ministerial power;

NERSA;

Parliament;

international agreements;

administrative law; and

constitutional procedure.

The court examined whether the section 34 determinations constituted administrative action and emphasised their significant external legal effects.

The judgment demonstrates that energy planning can move between policy, administration and constitutional review.

Principle

Energy policy becomes constitutionally reviewable when it is translated into legally operative decisions.

11. Energy Governance Through Environmental Law

Environmental law is another major governance layer outside conventional constitutional design.

A power station may be authorised through:

energy legislation;

environmental legislation;

water law;

land-use law;

municipal planning law; and

technical regulation.

Consequently, energy governance becomes a multi-dimensional regulatory network.

In Earthlife Africa Johannesburg v Minister of Environmental Affairs, the proposed Thabametsi coal-fired power station raised the relationship between electricity generation and climate-change impacts. The litigation demonstrated that environmental decision-making cannot necessarily be separated from broader climate and energy considerations.

Earlier, in Earthlife Africa v Director-General, Department of Environmental Affairs and Tourism, the court reviewed environmental authorisation concerning a proposed nuclear reactor and considered the interconnected statutory framework governing the project.

12. Energy Governance Through Markets and Contracts

Modern electricity systems also contain private actors.

Independent power producers may generate electricity under long-term contractual arrangements.

Banks finance projects.

Insurance companies allocate risk.

Engineering companies construct infrastructure.

Technology companies operate digital systems.

Consumers enter electricity-supply agreements.

Therefore, important governance functions may occur through:

procurement contracts;

power purchase agreements;

grid-access agreements;

financing agreements;

insurance arrangements;

technical standards; and

commercial dispute resolution.

This produces contractual governance.

The State may therefore govern indirectly by determining the legal framework within which private contracts operate.

13. Technical Standards as Hidden Governance

Energy governance is not created only through statutes.

Technical rules can determine:

grid stability;

connection requirements;

frequency standards;

safety;

reliability;

metering;

cybersecurity;

renewable integration; and

storage participation.

Although these rules may appear technical, they can determine who is allowed to participate in the electricity system.

This produces an important theoretical insight:

Technical standards can function as quasi-constitutional rules for infrastructure.

They determine the boundaries within which economic and social activity can occur.

14. Energy Governance Through Crisis

Load-shedding demonstrates governance outside formal constitutional design particularly clearly.

The Constitution does not contain a detailed "load-shedding constitution."

Yet during an electricity crisis, practical governance is created through interactions among:

Eskom;

the Department of Energy;

NERSA;

municipalities;

electricity distributors;

courts;

consumers;

hospitals;

businesses; and

emergency-management institutions.

In United Democratic Movement and Others v Eskom Holdings SOC Ltd, the High Court considered consolidated litigation concerning electricity shortages and load-shedding. The court noted that although the Constitution does not expressly create a right to electricity, electricity is closely connected with constitutional rights including healthcare, education, water and sanitation.

Thus, an energy crisis can create a practical constitutional order even where the Constitution does not expressly prescribe a detailed energy-crisis mechanism.

15. The Principle of Constitutional Spillover

Energy governance demonstrates what may be called constitutional spillover.

A decision originating in one legal field can produce consequences in another.

For example:

Electricity tariff decision

↓

affects household affordability

↓

affects social welfare

↓

affects equality

↓

affects municipal service delivery

↓

creates constitutional litigation.

Similarly:

Power-station approval

↓

creates environmental impacts

↓

affects section 24

↓

requires administrative review

↓

creates constitutional litigation.

Thus, energy law constantly crosses traditional legal boundaries.

16. Recent Judicial Development

Recent South African litigation further illustrates this trend.

In Sibanye Gold (Pty) Ltd and Others v Eskom Holdings SOC Ltd and Others, the Gauteng High Court in 2026 considered an Eskom decision against the broader legislative objective of long-term energy security and renewable-energy development. The court treated the impugned decision as unlawful and invalid.

Similarly, in Topigs Norsvin (Pty) Ltd v Eskom Holdings SOC Ltd and Others, decided by the Supreme Court of Appeal in August 2026, the litigation raised questions concerning environmental duties, Eskom's operations and constitutional environmental rights.

These developments show that energy governance continues to expand into environmental, administrative and constitutional territory.

17. A New Model of Energy Constitutionalism

Traditional constitutional theory can be represented as:

Constitution → Government → Regulation → Citizens

Modern energy governance is better represented as:

Constitution

↓

Legislation

↙ ↓ ↘

Regulator — State Utility — Municipality

↘ ↓ ↙

Markets — Contracts — Infrastructure

↓

Consumers / Communities

↓

Courts

↓

Constitutional Review

This is a network constitutional model rather than a purely hierarchical model.

18. Key Legal Principles

Principle 1: Constitutional significance does not depend on express constitutional creation

Eskom and NERSA demonstrate how statutory institutions can become constitutionally significant.

Principle 2: Infrastructure can exercise constitutional power

Control over electricity infrastructure can affect the practical enjoyment of constitutional rights.

Principle 3: Statutory law mediates constitutional governance

Energy statutes translate broad constitutional principles into operational rules.

Principle 4: Administrative law constitutionalises technical decisions

Tariffs, licences and generation determinations can become subject to constitutional standards.

Principle 5: Cooperative governance is essential

Electricity governance involves multiple spheres and institutions rather than a single hierarchical authority.

Principle 6: Private actors can become part of public governance

IPPs, financiers, contractors and technology companies can perform functions that have significant public consequences.

Principle 7: Crisis governance reveals hidden constitutional structures

Load-shedding exposes relationships that may remain invisible during normal electricity supply.

19. Conceptual Conclusion

Energy governance outside formal constitutional design means that the real constitutional structure of energy is larger than the institutional structure expressly described by the Constitution.

The Constitution provides fundamental principles, but electricity systems are actually operated through a complex institutional ecosystem.

Eskom may control infrastructure.

NERSA may control economic regulation.

Municipalities may deliver electricity services.

Independent producers may generate electricity.

Private companies may construct and finance infrastructure.

Technical bodies may establish operational standards.

Courts may review decisions.

Consumers and communities may challenge governance failures.

The result is a form of distributed constitutional governance.

The most important lesson from South African energy jurisprudence is therefore:

The Constitution does not govern energy only through formally constitutional institutions. It governs energy through the entire legal and institutional network that determines how electricity is generated, transmitted, distributed, priced, regulated and experienced by society.

Cases such as Earthlife Africa, Eskom v Resilient Properties, Eskom v Vaal River Development Association, United Democratic Movement v Eskom, and the more recent Sibanye and Topigs Norsvin litigation demonstrate this movement from formal constitutional design toward functional, networked and infrastructure-based constitutionalism.

In this model, energy governance is not simply a branch of administrative law or energy regulation. It becomes a constitutional ecosystem in which infrastructure, institutions, markets, technical rules and social needs collectively determine the practical meaning of constitutional government.