Cape Town – The first day of a two-day hearing on local governments’ rights to procure electricity from independent power producers began in the high court in Pretoria yesterday.
The City of Cape Town, the mineral resources and energy minister, and the National Energy Regulator (Nersa), with the Centre for Environmental Rights as amicus curiae (friend of the court), headed to a virtual court sitting before Judge Leonie Windell.
The precedent-setting case will determine municipalities’ legal power to procure electricity under the Electricity Regulation Act, 2006, without having to seek permission from the mineral resources and energy minister.
Arguments are expected to continue today.
Mayor Dan Plato said: “It is our hope that the current court matter will give the City the legal clarification it requires, as the Draft New Generation Capacity Regulations that were published last week, unfortunately still fall short in addressing the needs of municipalities.”
The regulations allow a municipality to apply to the minister for a determination in terms of Section 34 of the Electricity Regulation Act, and require that this determination be made in accordance with the national Integrated Resource Plan (IRP) for electricity.
The City contends that it does not require a Section 34 determination, an application via the minister and in accordance with the national IRP, but that it is free to generate and procure electricity in accordance with its statutory responsibilities to provide a secure electricity supply.
“Over the years, the City had attempted to resolve the matter inter-governmentally, unfortunately to no avail,” Plato said.
The City has been busy preparing for a new energy future by developing a City Integrated Resource Plan, and engaging the National Treasury on how to set-up a future City Independent Power Purchase office.
The City is also looking into the options for self-build, Mayco member for energy and climate change, Phindile Maxiti said.
“There is a lot of work to do and it will not happen overnight, but the City is confident that great strides can be made once the way forward has been properly illuminated,” Maxiti said.
The Centre for Environmental Rights (CER) said the constitutional obligations of local government were a central focus of the case.
The CER contends that, not only does local government have a duty to provide affordable and accessible electricity services to people, but it also must provide clean and healthy electricity which does not give rise to harmful air and water pollution.
“Municipalities across the country have expressed a desire to play an active role in the energy transition,” the CER said.