Energy efficiency: the progress of policy, legislation, and the role of the courts in South Africa

• Author: Du Plessis, W.
• Date: 20 December 2019
• Pages: 175-203
• Published date: 20 December 2019

175

ENERGY EFFICIENCY: THE PROGRESS OF

POLICY, LEGISLATION, AND THE ROLE

OF THE COURTS IN SOUTH AFRICA

Willemien du Plessis*

ABSTRACT

Energy efficiency measures reduces energy intensity and lead to energy

savings. It is seen as one of the ways in which to address the reliance on coal-

based energy and its negative consequences. South Africa has various policies

and laws that refer to energy efficiency. The Draft Post-2015 National Energy

Efficiency Strategy sets energy efficiency targets for the public, private and

transport sectors. The National Energy Regulator of South Africa (NERSA)

is mandated to approve electricity tariffs and prices, amongst others. These

tariffs have to be approved in line with the Multi-Year Price Determination

(MYPD) Methodology, which also refers to energy efficiency. In a 2016 Gauteng

High Court decision the court referred to the fact that Eskom encouraged

its customers to use less energy, while the Supreme Court of Appeal did not

refer to either energy savings or energy efficiency. The aim of this note is to

discuss energy efficiency in light of the progress of policy and legislation and

to indicate a possible role for the courts in this regard.

1 INTRODUCTION

The end of 2018 saw Eskom, South Africa’s electricity producer,

introduce load-shedding measures similar to the position that

South Africa experienced in 2008�1 South Africa still relies on

coal-based energy and will still rely on coal-based energy for the

future�2 The proposed introduction of two new additional coal-

* The financial support of the National Research Foundation of South

Africa is acknowledged with appreciation� The opinions expressed, however,

are those of the author� The valuable comments of the two anonymous reviewers

are appreciated�

1 Wayne Duvenage ‘R100bn Eskom bailout – the bitter pill we may be

forced to swallow’ (9 December 2018) Fin24, available at https://www�fin24�

com/Opinion/wayne-duvenage-r100bn-eskom-bailout-the-bitter-pill-we-may-

be-forced-to-swallow-20181207 (accessed 9 December 2018)�

2 Draft Post-2015 National Energy Efficiency Strategy – GenN 948 in

GG 40515 of 24 December 2016� By December 2018 the Draft Strategy has not

been finalised� See also Statistics South Africa ‘Electricity, gas and water supply

industry, 2016’ (2018), available at http://www�statssa�gov�za/publications/

Report-41-01-02/Report-41-01-022016�pdf (accessed 10 December 2018)�

(2018) 24 SAJELP 175

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176

(2018) 24 SA JOURNAL OF ENVIRONMENTAL LAW AND POLICY

based power stations is severely criticised�3

One of the ways to curtail the reliance on coal-based energy, is

by way of introducing energy efficiency measures� A recent study

by the Academy of Science of South Africa (ASSAf) describes the

aim of energy efficiency as the reduction of ‘the energy intensity

required to produce goods and services’�4 Energy efficiency can

be approached from a purely technical or engineering perspective

or from a legal perspective� The National Energy Act5 defines

‘energy efficiency’ as the ‘economical and efficient production

of an energy carrier or resource’�6 This definition does not

necessarily coincide with other technical definitions that refer

to both the input and output of the energy in relation to energy

consumed or used�7

The introduction of energy efficiency measures has many

possible benefits� Some of these may be economic in that industry

3 See, for example, Gregory Ireland and Jesse Burton ‘An assessment of

new coal plants in South Africa’s electricity future: the cost, emissions, and

supply security implications of the coal IPP programme’ (Energy Research

Centre, University of Cape Town 2018), available at https://cer�org�za/wp-

content/uploads/2018/05/ERC-Coal-IPP-Study-Report-Finalv2-290518�pdf

(accessed 10 December 2018)�

4 ASSAf ‘The state of research, development and innovation of electrical

energy efficiency technologies in South Africa’ 21 (2017), available at http://

dx�doi�org/10�17159/assaf�2017/0017 (accessed 10 December 2018)�

5 34 of 2008�

6 Section 1� An ‘energy carrier’ is ‘a substance or system that moves or

carries energy in a usable form from one place to another’ and an ‘energy

resource’ is regarded as ‘non-value added material or mineral that can be used

to produce energy or be converted to an energy carrier�’

7 See in this regard W du Plessis ‘Energy efficiency and the law: A multi-

disciplinary approach’ (2015) 111(1/2) South African Journal of Science,

available at http://dx�doi�org/10�17159/sajs�2015/20130302� The Draft

Integrated Resource Plan 2018 – GenN 897 in GG 41865 of 27 August 2018

defines ‘energy efficiency’ as ‘the effective use of energy to produce a given

output (in a production environment) or service (from a consumer point of

view), i�e� a more energy efficient technology is one that produces the same

service or output with less energy input’ (Glossary)� Using less electricity

for whatever reasons, for example, the increase in electricity prices or by

introduction of solar power to use less energy are sometimes excluded from

the definitions of energy efficiency but it is also referred to colloquially in the

same vein as energy efficiency or the use of energy in a more efficient manner

– para 3�1�3� In technical engineering terms they may be regarded as separate

concepts�

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