More than two weeks after President Cyril Ramaphosa announced that the electricity crisis had been declared a National State of Disaster, the regulations giving effect to that declaration have been Gazetted.

In a statement issued on February 28, it was confirmed that the regulations were approved following a sitting of the President’s Coordinating Council, as well as a special sitting of Cabinet, which took place on the evening of Monday, February 27.

Minister in the Presidency Mondli Gungubele described the regulations, which are already in operation, as providing for the “extra-ordinary measures required to deal with our energy constraints”.

Issued by Cooperative Governance Minister Nkosazana Dlamini-Zuma, the Gazetted regulations have been published despite there being legal processes under way to have the State of Disaster overturned on the basis of its being irrational and unlawful.

As anticipated, the regulations enable Cabinet Ministers to issue directions to “remove impediments to the development or construction of new generation capacity”, to streamline decision-making processes by designating a single department or institution “to receive and coordinate the processing of applications” for energy projects, and to maintain security.

Also, as anticipated, the regulations create space for exempting specified essential services from loadshedding schedules “where technically feasible”.

The essential infrastructure outlined in the Gazette includes health and military health facilities, water infrastructure, including water treatment plants, rail and port infrastructure, food production and food storage facilities, and critical electronic communications and broadcast infrastructure.

“These exemptions will be undertaken in a manner that does not result in an increased risk of placing the national grid under pressure,” government said in a statement issued together with the regulations.

Directions can also be issued to exempt certain activities, including repairs to existing energy infrastructure, from the provisions of the National Environmental Management Act, and to streamline decision-making processes for environmental authorisations, including atmospheric emission licences.

This is likely to have significant implications for Eskom’s plan to introduce three temporary flue stacks at the Kusile power station, where units 1, 2 and 3 have been inoperable since October after a buildup of slurry in the Unit 1 flue led to the flue collapsing on to the other two flues inside the same chimney.

The failure has increased loadshedding by two stages and Eskom says a permanent repair could take up to two years, leading it to apply for a temporary exemption from minimum emission standards to enable the temporary flues, for which orders have been placed and which could be installed by year-end, to by-pass the flue-gas desulphurisation system.

The regulations also open the way for electricity sales from individuals, companies and municipalities, as well as for the issuance of guidelines for net-billing or feed-in tariffs to “facilitate small-scale embedded generation as well as wheeling of electricity”.

They also open the way for imports, the recruitment of skilled personnel and the access to servitudes to expand the transmission network, as well as the broadcast, at no cost to users, of public service announcements.

Water authorities could also be allowed to revise their minimum operational levels and be exempted from penalties should they exceed their notified maximum demand during loadshedding.

Any emergency procurement undertaken during the State of Disaster will be subject to the emergency provision under the Public Finance Management Act, the Municipal Finance Management Act and the Preferential Procurement Framework Act.

However, the Auditor-General will “conduct real-time audits” and any procurement undertaken using the emergency provisions “must be published and reported to Parliament within a month of the expenditure”.

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