South Africa’s Department of Energy and the national Treasury are reportedly making claims over the legality of the National Energy Regulator of South Africa’s (Nersa) renewable energy feed-in tariff (Refit). The government sects have said that the Refit program is unlawful and questioned Nersa’s authority to set fixed tariffs.
During the Refit procurement process presented to a parliamentary committee on June 24, the DoE’s deputy director general Ompi Aphane said that the Refit presented in 2009 cannot be legally binding. Aphane reportedly used the legal documents obtained from Advocate Wim Trengove SC commissioned by various South African renewable energy associations like the South African Wind Energy Association (Sawea), South African PV Association (Sapvia), and the Southern Africa Solar Thermal and Electricity Association (Sastela).
The South African Wind Energy Association (Sawea) issued a statement saying, “Based on media and verbal reports of Aphane’s presentation, the industry associations believe that Aphane did not present the legal opinion in a balanced manner.” The statement went on to say that the industry associations’ believed that Nersa could, however, “adopt a policy to remove the pre-determined tariffs as long as it bears in mind that the policy is not binding and that it may not rigidly adhere to it.”
Nersa Regulator Thembani Bukula told Alternative Energy Africa, “Sawea is addressing the matter, but as far as Nersa is concerned, the Refit is legal and Nersa has the mandate and authority to pronounce [tariffs].” He added, “The legal opinion obtained by [the industry associations] when put positively says Nersa can make an upfront determination and further evaluate the applicability of the determination when approving the license to generate and trade electricity.”
The associations believe that the Refit should allow for amendments depending on varying circumstances that could arise over time (ie pricing fluctuations). Sawea CEO Johan van den Berg said, “I am deeply concerned that it only takes a single stakeholder legally challenging the process to cause extremely long delays and a general loss of momentum.”
"If the government plans to change its method of procurement from what has been indicated up to now, we would expect an urgent and formal engagement with industry over the proposed altered procurement mechanism," added Dr. Chris Haw, Chairperson of SAPVIA.
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