The National Planning Commission (NPC) had long been off most people’s radar screens by the time the stage 6 load-shedding crisis erupted in July. But the commission made an unexpected comeback, and proposed the declaration of an “energy emergency” to enable government to override the red tape blocking the delivery of new private generation capacity.
The proposal was taken up by politicians and others who seemed to believe a state of emergency could be just as effective in fighting load-shedding as the state of disaster was in fighting Covid-19. But it attracted widespread condemnation from the experts — not just because it could have set a dangerous legal precedent but also because it wasn’t obvious why it was needed at all.
Sadly, bad old ideas never die. Now the “state of disaster” is back on the table as a supposed solution to the present severe Stage 6 load-shedding crisis. The ANC and its alliance partners have recommended declaring a national state of disaster, complete with a Covid-19-style national command council to wield sweeping powers. The DA and the agricultural sector, with the NPC, had already raised the cry for such a declaration. But as the ANC’s lekgotla ended on Monday, President Cyril Ramaphosa confirmed that it was under government discussion and would be discussed at the cabinet lekgotla. It would give the government the instruments to address the challenge SA faced, he said.
That he and his advisers believe they must resort to such measures is symptomatic of so many things that are wrong with his government. July’s crisis prompted belated action from the president to tackle the constraints preventing new independent generators coming on to the grid as well as some of the constraints weighing on Eskom’s ability to fix its fleet of power stations. But the dead hand of government departments and regulation has continued to weigh on Eskom and potential independent generators.
Licensing for new wind and solar plants may have gone, but companies wanting to build these for their own use still have to register with the sluggish National Energy Regulator and jump other regulatory hoops. Worse are the myriad government requirements that state-owned companies such as Eskom have to comply with on any and every contract, as do independent power producers bidding for new generation projects under the government’s bid windows.
Hiring contractors or buying spares simply to fix a broken machine means going out to competitive tender, even when timing is of the essence and only the original manufacturer can really fix the machine properly. The dreaded Public Finance Management Act snarls up projects in endless bureaucracy and often in protracted disputes with the Treasury. Procuring components for new projects must comply with a series of BEE and localisation requirements, and this may not even be feasible. Eskom and private generators must deal with a gaggle of ministers and departments, from public enterprises to energy to trade, industry and competition to the Treasury and the presidency. Everything takes forever if it happens at all. There’s plenty of scope for ministers or their departments to obstruct — and they frequently do.
It might be appealing to give a command council the power to override all the rules and regulations and simply instruct departments and their ministers. But this is a slippery slope that could set a dangerous precedent for SA. It was one thing to put emergency powers in place for the Covid-19 pandemic. It is quite another to resort to emergency powers to try to address a complex energy problem that is at least 15 years old. Going the route of authoritarian responses to problems puts SA’s democracy at profound risk. It’s not clear that it is even constitutional.
Not only that, but it’s not clear how it can possibly be justified on practical grounds. Ministers have widespread powers as it is to grant exemptions from the requirements. They just have to use them. And if all of these rules, requirements and regulators are so dysfunctional, and so antithetical to securing a reliable power supply for SA, why are they still on the statute books? Likewise, if all these ministers, departments and regulators are so obstructionist or incompetent that the president cannot rely on them to support his efforts to end load-shedding, why are they still there? A state of disaster is no solution to the malaise at the heart of his government.
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