SAWEA was invited to make a submission to a NERSA Tribunal on Thursday May 24th. The tribunal was established by NERSA in order to consider and adopt the report of findings of an internal investigation which arrived at the conclusion that Eskom had not breached its license conditions by delaying the signing of 27 renewable energy Purchase Power Agreements (PPAs) for 33 months.
The NERSA investigation took place in early 2018, in response to a SAWEA complaint submitted in September 2016, and considered submissions and responses from both SAWEA and Eskom. “We are particularly concerned that the investigation panel appeared not to have taken our submitted evidence into account and worse, did not provide reasons for its conclusion which appears to bear no relation to the line of argument outlined in the report of findings,” explained Brenda Martin, CEO of SAWEA.
SAWEA attended in order to provide substantive argument to the Tribunal on Thursday, opposing adoption of the investigation report, as no legal or rational basis has been provided for the panel’s finding in relation to the delay tactics of Eskom. Eskom had claimed in its submission that it was within its rights to ‘engage’ government for the 33 months of the delay, without offering any legal basis for doing so.
In SAWEA’s view, the investigation panel abdicated its responsibilities by expressly refusing to consider whether Eskom had any legal standing to pursue government engagement, and in doing so it effectively endorsed Eskom’s actions. Furthermore, it is of concern to the industry that endorsement of the investigation panel’s findings could create a precedent allowing Eskom to employ such illegal delay tactics at any point in the future.
Unfortunately, once the Tribunal commenced proceedings, it questioned SAWEA’s procedural standing to make a submission, and indicated that the invitation to make a submission had been an ‘administrative error’, that SAWEA should have applied for permission to intervene. SAWEA then argued that the referral notice had clearly indicated that all SAWEA needed to do was indicate that it would be making a submission, which it duly did. If SAWEA was now not allowed to make a submission, the association argued, the hearing should be postponed in order to apply to be heard. The tribunal adjourned briefly to deliberate on SAWEA’s argument and then agreed to postpone the hearing and allow SAWEA to apply for permission to intervene.
Given what is at stake for the Industry, SAWEA will take the matter forward and hopes that it will be allowed to intervene in the Tribunal process.
Eskom’s destructive actions in relation to independent power producers over the past two years has resulted in significant damage to South Africa’s relatively young renewables industry.  SAWEA recognises that the Industry cannot afford to underplay the ongoing risk that the monopoly utility may elect to refuse duly procured access to the national grid in the future,” concluded Martin.