The Department of Energy has promulgated two draft bills that it intends to send to Parliament. These Bills are the National Energy Regulator Amendment Bill and the Electricity Regulation Second Amendment Bill. Due to these Bills highly undemocratic nature, the Department of Energy should withdraw these Bills without delay.

In essence, both Bills can be seen, in their overall effect, of placing huge decision-making power in hands of the Minister of Energy. The energy system in South Africa is in serious danger of being ruled by fiat. These two bills will eviscerate the National Energy Regulator of South Africa (NERSA) and transfer that regulatory power to the Minister: This is contrary to the construction and implementation of democratic institutions and the check and balances that were part and parcel of our 1994 liberation.

These two Bills are most likely unconstitutional and one could reasonably expect a serious legal challenge, unnecessarily adding additional stress on an over-burdened justice system. Further, these two Bills are contrary to good governance in the energy sector; an independent and impartial National Energy Regulator is a critical part of the checks and balances that define modern representative democracies such as South Africa. As energy is at the base of the economy, decisions about energy pricing, generation, distribution, and licensing are vital; get these wrong and the impacts are felt throughout the entire country. Further, the public has a right to able to participate in these democratic decisions, and this requires free access to all information before the Regulator. These Bills will further prevent access to information and the public's input into the decision-making process; especially regarding the withholding of “commercially sensitive information”, which is code in the energy sector for tariffs and especially tariff agreements between large multinationals and state-owned enterprises such as Eskom.

less transparency and accountability

The degree to which the public will be removed from the decision-making process is staggering. Not only does this Bill remove the pre-existing condition that the Regulator places the rules concerning the holding of its meetings and the results of those meetings in the public domain, the Bill removes the right of the public to attend those meetings and make inputs. This is a shocking and disgraceful retraction of a right that many South Africans, from all walks of life, have exercised in the past, most notably but not limited to MYPD 1 & MYPD 2 (electricity price increases) and REFIT hearings.

An empty Regulator will be replaced with a Minister of Energy who will be able to set tariffs and grant licenses at will, and whose decisions will not be subject to democratic oversight. This is contrary to our Constitution, and also to common sense. Without checks and balances, these Bills pave the way for less transparency and accountability in energy procurement. In the coming decades, we will spend well over a trillion rand of public money in new generation capacity. The potential for corruption, fruitless & wasteful expenditure, maladministration and unnecessary and costly litigation against the State will be increased dramatically if the Bills are passed into law.

A country is not just a democracy because it holds elections, the institutions of that country must also be democratic. This is a vital part of what Thomas Jefferson meant when he called for eternal vigilance. One of our most important regulatory bodies is about to be destroyed and replaced with diktat; our young democracy is in trouble.