Eskom fully supports any initiative to consolidate and harmonise the regulatory roles of various authorities with the energy sector. There are, however, certain provisions in the Energy Regulator Bill ("the Bill") which, if not properly addressed, could have far-reaching implications. Consequently, the following issues merit your attention.
2. GENERAL
Although the Bill allows any person adversely affected by a decision of the Energy Regulator to bring such decision under review by the High Court, it does not clearly spell out when a review application may be brought. In the light of the provisions of Section 21 (1) of the Electricity Act No. 41 of 1987, ("the Act") which grants a right of appeal, to the Minister, against the decision of the Regulator, it is advisable and indeed essential that the Bill harmonises the two provisions. It may be appropriate to subject Section 10 (3) of the Bill to Section 21 of the Act, by providing that any review application shall be brought only after the right granted by Section 21 of the Act has been exercised.
3.SPECIFIC SECTIONS OF THE BILL
SECTION 1
For the sake of clarity and certainty, it is suggested that the phase "of this Act" be inserted at the end of the definitions of "Chief Executive Officer" and "Energy Regulator" respectively.
SECTION 6 (c )
The disqualification of a person on the basis of an "offence involving dishonesty" is somewhat controversial. There are instances where a person could be convicted of a petty offence, which may involve an element of "dishonesty" e.g., a person who is convicted for reckless or negligent driving after having passed through a red robot or for failing to submit a tax return timeously. It is, therefore, recommended that the word "dishonesty" be revisited either by qualifying or substituting it.
SECTION 10
It is unclear whether or not the intention is to substitute or supplement the review provisions contained in the Administrative Justice Act. The provisions of this section should be compatible with the Promotion of Administrative Justice Act.
(See our further comments under General).
4. CONCLUSION
We trust that our comments will assist you in finalising the Bill.