As the arc of governing a constitutional democracy anchored on improving the quality of life of all citizens bends towards the reality of service delivery, the governing African National Congress is entering one of its consequential policy choice phases; to privatise or not to privatise state-owned entities. The proposal by the Minister of Electricity, Dr Kgosientsho Ramokgopa, to sell off Eskom power stations to bidders is not only a doctrinal shift for the ANC but an indication that the governing party is in interacting with the reality about the power of the market to drive service delivery politics as decided by the relative capacities of private capital.
The brute truth is that South Africa’s energy sector is on auction, and it is the dates of transactions and asset transfers that are still in lag. What South Africans still have as solace to have a policy or otherwise say in how the inevitable should be, is the Constitutionality or otherwise of the decision to privatise. The South African Constitution commits itself to improving all citizens' quality of life and freeing all persons' potential. It declares itself to be the supreme law of the Republic, and law or conduct inconsistent with it is invalid, and obligations imposed by it must be fulfilled. It binds natural and juristic persons to the provisions of the Bill of Rights.
In terms of the Constitution, the state is expected to ‘respect, protect, promote, and fulfil the rights in the Bill of Rights. To the extent that they are limited, the rights guaranteed to South Africans are expansive to include energy security and, by extension, a right to access it as a basic human right. Electricity provision is a public function. It is n activity whose performance by any juristic or natural person cannot be willy-nilly divorced from the fact that it is in the name of the state or its institutions at any level of its hierarchy or sphere of influence. The desirability of a wholesale privatisation of the state’s electricity generation capacity could not have been a consideration without the weakness of the organs of the state that were charged with providing electricity. This is notwithstanding the private sector gorging itself in the troughs of a waiting panacea to an otherwise public function if the socioeconomic effects of continued and free supply of electricity and its adjuncts water and data to citizens in the internal peripheries of South Africa.
The centrality of electricity or equivalent energy form to the livelihood of humanity makes it an activity whose generation, transmission, and distribution should be regulated. It should therefore be an organ of state function, albeit such an organ of state should not necessarily be controlled by the state. The policy bouquet should include creating an organ-of-stateness regime to the extent that the state’s obligation to the rights of access to energy by society is ‘respected, protected, promoted, and fulfilled as a human right’. This would address the extension of stateness to ‘independent power producers’ that are non-state but further state objectives or play roles associable with the state. In allowing the private sector into the power production function, arguably a public function in a developing state such as South Africa, the normative obligations and control dimensions of the state should be ‘respected, protected, and fulfilled’ to the extent that the human rights and socioeconomic transformation obligations of the state are not transferrable to the entity assigned or allowed to produce power.
Barring the rhetoric, which may be dogmatic, to privatisation or unbundling of ESKOM to open space for private sector involvement, organ-of-stateness follows or should follow public power wherever it is exercised. As a matter of fact, the constitutional construct South Africa follows protects society from the government releasing itself from its obligations through a privatisation process. Purchase and sale agreements, if government as the seller understands its obligations within the context of respecting, protecting, and fulfilling the human rights guaranteed to citizens, could be calibrated to include penalties that include re-nationalisation if there is private sector failure or disregard of the liberation promise the Constitution has guaranteed South Africans.
At the end of the day, it will always be the public nature of the function to deliver that will determine the organ-of-stateness of an independent power producer. The traditional view of the public nature of a power producer function from the principle of legality and its judicial reviewability has, over time, been replaced by the location and curation of the function. It is the nature and extent of public interest generated by the private provider that determines continuity or otherwise of organ-of-stateness. For all the profound policy changes the governing ANC has presided over their occurrence over the past thirty years, the public infrastructure dilapidation picture today calls for its creativity beyond dogma and nostalgia. As the history of our liberation struggle told us little about the then future, we are currently in; it did not warn us about the surprises that dogmatic state hoarding can do to the legitimacy to govern. The people’s will is to get uninterrupted energy, and some miracle might have to be spun out of some hat to talk to water and logistics.
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