Issued by the FW de Klerk Foundation 13/03/2024 

The Gas Amendment Draft Bill [B-2023] (“the Bill”) was opened for public comment by the Department of Mineral Resources and Energy, until 29 February 2024. The Bill represents a renewed effort to address the regulatory framework governing the gas sector in South Africa. (A previous iteration of the Gas Amendment Bill was introduced in the National Assembly in 2021 and later withdrawn in 2022.) There are concerns that the current Bill does not align with either constitutional values and rights (e.g. rule of law, equality, socio-economic rights) or national developmental objectives, particularly related to environmental protection.

Equality Concerns and Constitutional Compliance:

The Constitution’s end goal is for South Africa to be a non-racial society (this is why a non-racial society is one of the founding values of the Constitution in section 1(b) of the Constitution). In regard to this, the Constitutional Court has said that the Constitution enjoins us to dismantle forms of social differentiation and systematic under-privilege and to prevent the creation of new patterns of disadvantage.

As a result of South Africa’s past, which is littered with discrimination, the Constitution (in section 9(2)) makes provision for measures, such as laws, that are designed to advance persons disadvantaged by unfair discrimination – i.e. measures that are designed to promote the achievement of the full and equal enjoyment of all rights and freedoms by all South Africans.

However, the proposed Bill’s race-based approach to participation in the gas industry and its absence of concrete mechanisms ensuring substantive redress, does not meet the standards of design required for it to be seen as a law reasonably capable of achieving its objective through preferential treatment. Thus, the Bill may perpetuate socio-economic disparities, rather than alleviate them, while violating the spirit of the Constitution.

It, therefore, undermines the realisation of substantive equality as envisaged by the Constitution, rather than furthering its achievement.

Socio-Economic Rights – Fostering Inclusive Development:

The Bill grants exclusivity in the construction and sale of gas infrastructure. This may hinder market competition and impede small and medium-sized enterprises’ participation. This, in turn, may undermine the right to choose one’s trade, occupation, or profession, as guaranteed by section 22 of the Constitution.

Additionally, the Bill’s failure to incorporate social and labour plans for communities affected by gas extraction neglects constitutional commitments to equitable development and community empowerment.

By overlooking these (and other socio-economic rights considerations), the Bill risks exacerbating inequalities and perpetuating socio-economic disparities. This hinders, rather than alleviates, inclusive development and poverty reduction efforts.

Environmental Sustainability – Balancing Development and Conservation:

The Bill’s environmental provisions must be examined to see if they align with United Nations’ sustainable development goals, international climate agreements (like the Paris Agreement) and South Africa’s own Integrated Resource Plan (“IRP”). Despite the global push for renewable energy, the Bill’s emphasis on gas-fired power generation raises concerns about perpetuating reliance on fossil fuels and hindering progress towards renewable energy targets outlined in the IRP. The Bill also falls short in addressing the imperative of reducing greenhouse gas emissions to mitigate climate change impacts.

Moreover, the inadequate provisions for environmental impact assessments and sustainability measures pose significant risks to environmental conservation and climate resilience. Gas extraction and utilisation carry inherent environmental risks, including air and water pollution, habitat destruction and emissions of methane – a potent greenhouse gas. Such risks threaten biodiversity and ecosystem integrity, undermining South Africa’s commitments to environmental sustainability.

The Bill’s failure to align with international environmental standards and commitments undermines South Africa’s credibility as a responsible global actor.

Comprehensive revisions to the Bill are necessary to integrate robust environmental assessments, sustainability measures and adherence to international climate agreements.

Foundation’s Remedies:

1. Ensure robust public participation and stakeholder engagement in the legislative process to uphold democratic principles and accountability.
2. Integrate substantive equality considerations into the Bill’s framework to promote inclusivity and address systemic inequalities.
3. Align environmental provisions with international climate agreements, South Africa’s Integrated Resource Plan, and sustainability objectives.
4. Prioritise investments in renewable energy technologies and implement stringent environmental safeguards to promote climate resilience and environmental sustainability.

By adopting these remedies, policymakers can navigate the complex interplay of socio-economic, environmental, and procedural concerns inherent in the Bill.

Conclusion:

In summary, the Bill presents multifaceted concerns spanning procedural, socio-economical, and environmental domains. Its failure to address substantive equality concerns, in accordance with section 9(2) of the Constitution, perpetuates systemic inequalities and marginalisation.

Socio-economic implications loom large as the Bill risks exacerbating energy poverty and hindering progress towards inclusive economic development. Moreover, its environmental provisions fall short of aligning with international climate commitments and South Africa’s renewable energy goals – posing threats to environmental sustainability and climate resilience.

The Foundation’s proposed remedies will uphold constitutional principles, promote sustainable development and safeguard South Africans’ rights and well-being. With concerted efforts and collective engagement, South Africa can chart a course towards a more equitable, sustainable, and resilient energy future.