These are the new powers given to government under the load shedding state of disaster

 ·28 Feb 2023

The Department of Cooperative Governance and Traditional Affairs (Cogta) has gazetted the full schedule of regulations issued in terms of the national state of disaster declared by president Cyril Ramaphosa to deal with the energy crisis in South Africa.

The regulations give the government – and Cogta minister Nkozasana Dlamini-Zuma in particular – far-reaching powers to deal with the crisis, including exempting critical infrastructure from load shedding, allowing new generation capacity to speed past environmental laws, and unlocking finances through ’emergency procurement’.

The regulations came into effect from the moment they were gazetted on Monday (27 February).

According to the department, the objective of the regulations is to assist, protect and provide relief to the public and generally deal with the “destructive nature” and effects of the disaster.

This will be done by minimising the impact of load shedding on lives and livelihoods, the economy and various critical services in the country.

However, the department said this cannot be done by increasing the risk of higher stages of load shedding, so the regulations also introduce measures to allow new generation capacity to be built and connected while improving Eskom’s performance.

To this end, the regulations allow all institutions within the national, provincial and local spheres of government – for the duration of the declared state of disaster – to use all their available resources to adopt energy-saving measures, ensure continuous operations of critical services, and release personnel and funds to address the crisis.

The regulations also give any relevant cabinet member the authority to issue directions within their mandate in consultation with the minister of Cogta.

Broadly, this is how the crisis will be managed:

Load shedding

  • The regulations allow ministers to grant exemptions from load shedding or reduce load shedding schedules. This has to be technically feasible, working with Eskom’s System Operator, and cannot result in an increased risk of higher stages of load shedding.
  • The exemptions are to maintain the security and availability of the supply of goods and services during the disaster.

Cutting red tape

  • Departments are to remove impediments to the development or construction of new generating capacity.
  • Application and decision-making procedures and regulatory processes can be streamlined and expedited.
  • As part of this, environmental authorisations are also allowed to be “streamlined”, with waste management licences, atmospheric emission licences, condonations and exemptions associations with energy infrastructure and generation being expedited.
  • The regulations also allow for upgrades, refurbishments, adjustments and repairs of existing energy infrastructure to be exempted from provisions of the National Environmental Management Act – or any environmental management laws – for the duration of the disaster.

Generating power

  • The regulations make provision for government to facilitate the sale of electricity generated by individuals, the state or private groups by allowing them to licence as distributors.
  • The government can also issue guidelines for distributors to implement net billing and other mechanisms to facilitate small-scale generation and wheeling of electricity (feeding excess power to the grid)
  • Eskom can also import electricity from neighbouring countries and conclude contracts relating to electricity imports on an expedited basis.
  • Notably, the regulations allow access to servitudes (a limited real right over an immovable property) on public and private land for Eskom and its companies to expand the national transmission network. This will be done in terms of land expropriation laws.
  • They also provide for the recruitment and placement of skilled personnel or appointment of original equipment manufacturers by Eskom to deliver on the generation recovery plan.

Accessing money

  • The regulations give access to emergency procurement procedures to secure funding.
  • These procedures are still subject to the Public Finance Management Act, the Municipal Finance Management Act and the Preferential Procurement Policy Framework.
  • The Auditor General will also be conducting real-time audits on the funds and will report on all accounts during the disaster.
  • Accounting officers are on the block to ensure that anti-corruption measures are implemented.
  • All procurement undertaken using emergency provisions must be published and reported to Parliament within the month of the expenditure, including details and reasons for deviating from normal procedures.

Two measures in the regulations are notable for being incredibly broad and equally as vague. These are:

  • Enabling government to take any other measure or steps necessary to prevent an escalation in the national state of disaster, or to alleviate, contain and minimise the effects of the national state of disaster.
  • Enabling government to take any steps to facilitate international assistance aimed at alleviating, containing or minimising the national state of disaster.

All measures in the regulations will continue to be applied for the duration of the state of disaster unless amended or withdrawn – and the department said that any activity permitted by authorisation or exemption granted in terms of the regulations during the state of disaster will be considered lawful until the state of disaster is terminated.

The full regulations can be found below:

Read: State of disaster faces mounting legal challenges

Show comments
Subscribe to our daily newsletter