Some years ago Daniel Plaatjies, the late Financial & Fiscal Commission chair, headed a technical team for an interministerial committee looking at tensions between Eskom and municipalities over reticulation — the trading and distribution of electricity.
Municipalities raise crucial revenue from markups on electricity they purchase from Eskom. Constitutionally, they have the right to reticulate electricity and, according to the technical team’s briefing to the standing committee on public accounts (Scopa) in November 2018, it is unconstitutional for Eskom to distribute power without a service delivery agreement. The details are available on the Parliamentary Monitoring Group website.
This report was completed before matters electricity became more complex with Eskom’s unbundling in line with the 2019 road map. The Electricity Regulation Amendment Act proposed a comprehensive overhaul through, among other things, the creation of a systems operator. Part of the July 2022 energy action plan, the law was pushed along by Operation Vulindlela, the presidency and National Treasury joint initiative.
While Operation Vulindlela highlights that point in its rather long to-do list of pressing structural reforms, actual reform and implementation is stalled. So nothing changes, even though serious governance issues arise.
The government seems to have amnesia about what’s gone before. Maybe government record-keeping is a mess. Perhaps the cabinet suffered collective selective amnesia when in March 2023 it approved the draft law as the solution amid the public outcry over then heavy sessions of electricity load-shedding.
Questions must be raised over why during about six months of parliamentary public hearings the statutory local government body, the SA Local Government Association (Salga), didn’t speak up loudly enough to get its points across. After all, such engagement is what public participation is supposed to be about. According to the parliamentary mineral and resources committee report, 7,011 participants made 1,182 oral and written submissions.
Parliament adopted the law in mid-May. The president signed it on August 16 after applying his mind, as the constitution demands. Traditionally, applying one’s mind has meant considering any representations before signing the legislation. If concerns of constitutionality emerge, Section 84 of the constitution allows the president to return the legislation to the National Assembly or submit it to the Constitutional Court for certification. But once the law is signed, that’s it.
Therein lies the governance blooper — by giving Salga time to make further representations after signing the electricity regulation amendment legislation, the presidency has in effect opened another round of lawmaking, a power the constitution assigns to parliament.
It’s not the first such muddle. Remember the National Health Insurance Act and Basic Education Laws Amendment Act? After signing the NHI Act organised business was allowed to make further representations — the precedent for Salga’s input — while grumblings over two controversial education act sections have been referred to the national unity government’s deadlock breaking mechanism.
Two points are important. A president really cannot sign a law saying some sections are suspended. Officially suspensions are announced in the presidential proclamation of the law’s starting date. The Basic Education Laws Amendment Act implementation has not yet been proclaimed, rendering its referral to the deadlock breaking mechanism little more than politics. Meanwhile, educational reform languishes.
Regarding the NHI Act and the Electricity Regulation Amendment Act, representations and proposals are meaningless as these won’t change what the president has already signed into law. Even if commencement was proclaimed tomorrow and it suspended certain provisions, none of this becomes permanent legal certainty until parliament passes new amendment legislation.
What a mess. Laws are signed into the statute books but not implemented even months later and much talked about structural reform legislation is passed, but not implemented.
The presidency needs to step up capacity to handle its (limited) legislative functions for proper governance. Failure to co-ordinate signing and proclaiming the starting date of laws is troubling. Ad nauseam consultation after laws are signed not only fudges governance, but without exceptional circumstances also parliament’s constitutional mandate as legislator.
The current state of affairs is not helpful to anyone.
• Merten is a veteran political journalist specialising in parliament and governance.
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