[Section 34 Heading substituted by section 27(a) and 31(d) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (1) | The Minister may, in the event of the failure of a market, or in the event of an emergency, or for the purposes of ensuring security of energy supply in the national interest, after consultation with the Regulator and the Minister of Finance, by notice in the Gazette, make a determination— |
[Words preceding Section 34(1)(a) substituted by section 27(b) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (b) | that new electricity transmission infrastructure is needed to ensure the optimal supply of electricity; |
[Section 34(1)(a) and (b) substituted by section 27(c) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (c) | determine that electricity thus produced may only be sold to the persons or in the manner set out in such notice; |
| (d) | [Section 34(1)(d) deleted by section 27(d) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions] |
| (e) | [Section 34(1)(e) deleted by section 27(d) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions] |
| (2) | A determination referred to in subsection (1)(a) must include provisions dealing with— |
| (a) | the extent of the new generation capacity required to be established, or electricity required to be produced, pursuant to such determination; |
| (b) | the types of energy sources or technologies from which the electricity may be generated and an indication as to the amount of electricity that may be generated from each of such sources or technologies; |
| (d) | whether the electricity so produced, or a stated portion thereof, must be purchased by a person designated in the determination as the buyer of such electricity; |
| (e) | whether the electricity so produced, or a stated portion thereof, may only be sold to the buyer referred to in paragraph (d); |
| (f) | where applicable, the conducting of the procurement process for the acquisition of the electricity so produced; and |
| (g) | the extent to which the new generation capacity contemplated in paragraph (a) may be established by independent power producers and the electricity so produced supplied to customers pursuant to multiple supply agreements. |
[Section 34(2) substituted by section 27(e) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (3) | A determination referred to in subsection (1)(b) may include provisions dealing with— |
| (a) | the nature, type and extent of the required electricity transmission infrastructure; |
| (b) | whether or not the person who shall manage, maintain or operate the required electricity transmission infrastructure (or engage in any combination of these activities), shall be an organ of state; |
| (c) | whether the person who constructs, manages, maintains or operates the required electricity transmission infrastructure shall own that infrastructure; |
| (d) | whether the electricity transmission infrastructure, or the electricity supplied by means of such infrastructure, shall be purchased or used by a person designated in the determination as the buyer or user; |
| (e) | whether the electricity transmission infrastructure, or electricity supplied by means of the infrastructure, may only be sold to or used by the buyer or user referred to in paragraph (d); and |
| (f) | where applicable, the conducting of the procurement process for the establishment of the required electricity transmission infrastructure. |
[Section 34(3) substituted by section 27(f) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (4) | A determination referred to in subsection (1) may include provisions dealing with any ancillary matter that is necessary or desirable to facilitate the procurement of electricity, new generation capacity or electricity transmission infrastructure, as the case may be. |
[Section 34(4) substituted by section 27(f) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (5) | A determination contemplated in subsection (1)(a) may be combined with a determination contemplated in subsection (1)(b). |
[Section 34(5) inserted by section 27(g) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (6) | In making a determination in terms of this section, the Minister— |
| (b) | may deviate from the integrated resource plan or transmission development plan in an emergency or if it is necessary to do so in the national interest. |
[Section 34(6) inserted by section 27(g) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (7) | Prior to deviating from the integrated resource plan or transmission development plan as envisaged in subsection (6)(b), the Minister must publish a notice in the Gazette, inviting the public to comment on the proposed deviation. |
[Section 34(7) inserted by section 27(g) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (8) | If it is reasonable and justifiable in the circumstances, the Minister may depart from the provisions of subsection (7). |
[Section 34(8) inserted by section 27(g) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (9) | The Minister has such powers as may be necessary or incidental to giving effect to a determination referred to in subsection (1)(a) or (1)(b), including the power to— |
| (a) | undertake such management and development activities, including entering into contracts, as may be necessary to prepare and conduct procurement processes for the development, construction, commissioning and operation of electricity generation facilities and electricity transmission infrastructure; |
| (b) | purchase, hire or let anything or acquire or grant any right or incur obligations for or on behalf of the State or prospective participant in any relevant procurement process for the purpose of transferring such thing or right to a successful participant; and |
| (c) | subject to the Public Finance Management Act, 1999 (Act No. 1 of 1999), issue any guarantee, indemnity or security or enter into any other transaction that binds the State to any future financial commitment that is necessary or expedient for the development, construction, commissioning or effective operation of public or privately owned generation facilities or electricity transmission infrastructure. |
[Section 34(9) inserted by section 27(g) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (10) | The Regulator, in exercising its powers and performing its functions under this Act— |
| (a) | is bound by any determination made by the Minister in terms of subsection (1)(a) or (b); and |
| (b) | may issue a licence or registration certificate for the activities listed in section 4(a)(i) in the absence of a determination made by the Minister in terms of subsection (1)(a) or (1)(b). |
[Section 34(10) inserted by section 27(g) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (11) | In exercising the powers under this section the Minister is not bound by the State Tender Board Act, 1968 (Act No. 86 of 1968). |
[Section 34(11) inserted by section 27(g) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (12) | A determination contemplated in this section may establish an energy infrastructure project, which includes not only new generation capacity and new electricity transmission infrastructure, but also other interconnected or related infrastructure, installations, buildings, structures, facilities, systems, services or processes, including gas infrastructure, in which case, subsections (3) and (9) shall, with the necessary changes, apply to such infrastructure, installations, buildings, structures, facilities, systems, services or processes. |
[Section 34(12) inserted by section 27(g) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (13) | The Regulator must, in respect of an energy infrastructure project contemplated in subsection (12), exercise its powers and perform its functions under this Act and any other statute in a coordinated and integrated manner. |
[Section 34(13) inserted by section 27(g) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (14) | The Minister may, in writing, direct the Regulator to conclude a memorandum of understanding with any other regulator in order to facilitate the coordinated establishment of an energy infrastructure project contemplated in subsection (12). |
[Section 34(14) inserted by section 27(g) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
| (15) | For purposes of this section, ‘electricity transmission infrastructure’ means transmission facilities or any other electricity infrastructure designated by the Minister by notice in the Gazette for this purpose, excluding electricity generation facilities. |
[Section 34(15) inserted by section 27(g) of the Electricity Regulation Amendment Act, 2024, Notice No. 5139, GG51100, dated 20 August 2024 - effective 1 January 2025 per Proclamation Notice 236 of 18 December 2024 with exceptions]
