Wednesday, July 14, 2021

Inclusionary housing in the Western Cape: a new policy, and the risk of doing nothing


The stain of Apartheid has left an indelible mark on South African communities. The spatial segregation of people based on race, a foundational aspect of the Apartheid regime’s policy and ideology, is still jarringly present in the Western Cape. Indeed, while inclusiveness is a fundamental principle upon which the new South Africa has been imagined, the exclusionary character of many communities in the Western Cape is as bad as ever more than 25 years after the beginning of democracy in this country. Urban land markets are now perpetuating and exacerbating the unequal and segregated nature of South Africa’s cities, undermining societal principles and limiting the opportunities afforded to urban inhabitants.

The Draft Western Cape Inclusionary Housing Policy Framework May 2021 (“Framework”), under consideration now, is a welcome and overdue step towards establishing mechanisms that guide urban development, redress historical inequalities, and create an integrated and inclusive society. Without taking this and other steps, the Western Cape Provincial Government (“Province”) risks failing to satisfy its constitutional and legal obligations.

Historically in South Africa, planning and land use laws and policies were used expressly to exclude and segregate people based on race, resulting in some of the most extreme urban segregation in the world. This effect, while no longer legally enforced, is now enforced through the market. In the Western Cape, as is the case elsewhere in South Africa and in many other parts of the world, urban land markets entrench historic segregation and inequality with respect to access to the benefits of the city. It is therefore necessary to address the issue of affordable housing in order to dislodge the exclusionary character of these communities. Inclusionary Housing (“IH”) is one such tool.

IH policies originally developed as regulatory land use tools to expressly counter policies and practices that were historically used to exclude access to housing in areas based on race and class. As the Framework notes, while intimately tied to housing, IH is a land use policy at heart, and it may be used to direct and guide land use for the greater public good, just as other land use and zoning policies may do so. Such regulations are an evolution of the law in response to the needs and prerogatives of modern cities, and are now as well established as other older legal means of restricting land use, such as nuisance and trespass.

South Africa’s Constitution and national legislation empower, and arguably obligate, the Province to take steps like the Framework to address inequitable access to housing. South Africa’s Constitution, the supreme law of the land, guarantees the right to adequate housing, and mandates that the government take reasonable legislative and other measures within its available resources to achieve the progressive realization of this right (s26). South African courts have confirmed that the right to housing goes beyond actual “bricks and mortar,” and includes planning and land use regulation and policy. South Africa’s Constitutional Court has interpreted the government’s responsibility under the Constitution broadly with respects to redressing historical inequality and ensuring equitable access to basic rights, such as housing.

The national planning framework, provided by the Spatial Planning and Land Use Management Act (“SPLUMA”), specifically adopts as guiding principles and policy goals addressing the planning legacy of racial inequality and segregation and promoting social and economic inclusion through planning (see preamble, ss 3(b), 3(f), 7). SPLUMA requires implementation of land use schemes that promote the inclusion of affordable housing (ss 24(d), 28). As the Framework notes, SPLUMA also specifically authorizes provincial IH policies and requires municipalities to implement such policies through identification of the spatial parameters for implementation (see, s21(i)). Implementation of the Framework, if expressly adopted as the Province’s IH policy identified in s21(i) of SPLUMA, would help give greater effect to the provisions provided in SPLUMA and strengthen the legal basis upon which municipalities could pursue local IH policies.

Housing and development policy entails overlapping spheres of authority by municipal, provincial, and national sphere of government. Housing and urban development are expressly included within the ambit of Provincial competence, while municipalities are responsible for municipal planning and local land use regulation. The Province is tasked with regulating the exercise of municipal functions. The Framework properly acknowledges the central role that municipalities must play in tailoring IH policies to meet the particular circumstances of their jurisdiction, and it provides the needed flexibility to allow municipalities to address their particular context.

A critical contribution of the Framework is to set a clear path for municipalities seeking to implement IH policies. As noted by many observers, this has been a clear stumbling block at the municipal level, particularly in Cape Town. The past 15+ years of discussion over implementing IH policies in the Western Cape—without any actual implementation—demonstrates that there needs to be true governmental commitment to act on such policies. The growing absence of headway regarding adequate housing and equitable access to the city, either through IH or other policies, increasingly exposes all levels of government to legal challenge based on the failure to live up to their constitutional and statutory mandates.

The unfortunate success of Apartheid planning in achieving the sort of spatial segregation seen today in the Western Cape and South Africa is a testament to the impact that planning and land use regulation can have on a society. It is past time to harness planning and land use regulations, such as IH, with the same conviction and dedication but with reverse purpose.

Thursday, August 13, 2020

Paving over the PHA, one bus facility at a time

What happens in Cape Town, South Africa, when you illegally infill a farmland dam in a sensitive aquifer recharge area with building rubble? The answer is nothing, apparently, or at least so long as you pave it over and make it an illegal bus parking facility. The aerial images above might be characterized as Exhibit “A” in the local and provincial government’s failure to maintain the integrity of Cape Town's Philippi Horticultural Area ("PHA"): land use decisions allowing a charter bus company to operate on zoned farmland in the heart of the PHA.

For years, farmers and residents in the PHA have complained that the government has neglected and undermined the PHA’s role as Cape Town’s breadbasket. Most plainly, various levels of government have taken outright steps that have destabilized the farming integrity of the area, such as approving the conversion of prime agriculture land into master planned suburban developments (covered elsewhere). But a subtler yet arguably more harmful factor is the government’s failure to enforce existing laws and stop illegal uses inconsistent with farming, such as construction dumping and industrial activities, even when violations are obvious.

For example, early last year the Western Cape Province’s Department of Environmental Affairs and Development Planning (DEADP) received a complaint regarding infill of a farm dam located on Portion 13 of Farm 705 in the PHA, shown in the image above. Although DEADP inspected the site and confirmed that general waste was unlawfully disposed on the property, the land owner argued that City’s Department of Water and Sanitation had no objections. Upon follow up, DEADP reversed course and concluded no violation of environmental laws because “the property had been cleaned up and . . . the land which had been infilled was converted from a dam to a bus parking area”. Although the land is zoned as agricultural land (see here), it is registered as owned by “Parkers Bus Service”. Aerial images from Google Earth show up to 14 buses being parked in and around the site, as well as broader non-agricultural development over the past 10-20 years.

While it is not entirely clear what DEADP’s justification was for not finding a violation, it appears possible that it concluded that the infill was not covered as a “listed activity” under NEMA regulations. However, NEMA includes as a listed activity “infrastructure or structures with a physical footprint of 100 square metres or more where such development occurs . . . within a watercourse.” The term “watercourse” is defined to include “a . . . dam into which, or from which, water flows.” A dam in the middle of the Cape Flats Aquifer recharge zone would seem to fall under this definition, but DEADP did not explain its justification. At a minimum, NEMA’s duty of care principle and DEADP’s mandate require it to more carefully assess impacts such as dam infilling and bus parking lots in a critical aquifer recharge zone.

More broadly, construction of a parking facility in the middle of the PHA raises larger concerns about how various levels of government are failing to properly coordinate in governing and managing the area. The City and Province are in the middle of undertaking a renewed process to update the plans and policies for the PHA area. While both the Province and the City have committed to support farming in the PHA, the view on the ground suggests that enforcement and coordination, not more plans and policies, are necessary.

Wednesday, March 4, 2020

PHA High Court Decision Recap

Its been a few weeks since the Western Cape High Court handed down its decision in the case regarding the proposed Oakland City development in the Philippi Horticultural Area (I've written some about the case here before). While it's true, as many outlets have covered, that the decision is a major victory for the PHA Food and Farming Campaign on certain issues, it is also true that the decision was mixed. In some ways, the City and Province scored important victories that serve to permanently wittle away protection of the PHA for agricultural and non-urban uses. Here is a recap of the decision and its findings (I've included paragraph numbers for reference):

Who were the relevant parties in the case [2-3]? 

The PHA Food and Farming Campaign (“Campaign”) and Nazeer Sonday, chairperson of the Campaign, were the applicants seeking relief from the Court. 

Respondents alleged to have violated the law were: 

  • The Member of the Executive Council for Local Government, Environmental Affairs and Development Planning in the Western Cape (the “MEC”) (named as “first respondent” in the decision). The MEC is an authority of the Provincial government. 
  • The Western Cape Department of Environmental Affairs and Development Planning (the “DEADP”) (named as the “second respondent” in the decision). The Department is part of the Provincial government, which the MEC oversees. 
  • The City of Cape Town (the “City”) (named as the “sixth respondent”). 
  • Oakland City Development Company (Pty) Ltd (“Oakland”). Oakland is the developer seeking to develop a portion of the PHA.
What was the case about [1, 4-6]? 

The PHA consists of approximately 3000 hectares of land located physically within the Cape Town metropolitan area that was formally reserved in 1968 for sand mining and horticultural use. Although physically within the Cape Town metropolitan area, the PHA has historically been designated and protected as agricultural, or more specifically, horticultural, land. Urban development has gradually built up along the edges of the PHA. 

The case concerned Oakland’s proposal to develop 479 hectares of land (approximately 20% of the entire PHA) that it owns in the southeastern portion of the PHA (the “Oakland land”). The Oakland land was formerly considered part of the PHA and, like the rest of the PHA, was formally reserved in 1968 for sand mining and horticultural use. As described by the Court, while some of the Oakland land has been mined, unlike most of the more northern portions of the PHA almost none of it (4%) has been farmed, and no other development has taken place on it. The Oakland land, as well as much of the rest of the PHA, is located above the deepest portion of the Cape Flats Aquifer. Oakland acquired the land in 2008 with the intent to develop it. 

The development as presented to the Court calls for building housing for 15,000 families, schools, commercial and industrial facilities, as well as setting aside 77 hectares for conservation and wetland areas. From 2011 to 2017 the Provincial and Cape Town governments made several administrative decisions approving or otherwise facilitating the Oakland’s proposed development. The Campaign opposed Oakland’s proposed development. C. What issues did the Court consider? The substantive issues to be decided, as presented by the Court, were: 

  1. (Whether the Court should designate the entire PHA as “agricultural land” under national and provincial law [25-45].
  2. Whether the government illegally shifted the urban edge to exclude the Oakland City land from the rest of the PHA [46-55]. 
  3. Whether the Provincial government illegally approved the environmental authorization for the Oakland City proposal [56-109]. 
  4. Whether the City of Cape Town illegally approved the rezoning and subdivision of the Oakland City land [110-135]. 
Other issues that the court considered included: 

  • Striking from the record portions of the Campaign’s replying affidavits [17-24]. 
  • Remedies for any violations [106-109, 135]. 
  • Adequacy of notice and opportunity to comment on rezoning and subdivision of land [136-138]. 
  • Would any of the losing parties pay the winning party’s litigation costs [140-141]. 

What did the Court decide? 

(1) The PHA is not protected as “agricultural land” under the Subdivision of Agricultural Land Act [25-45] 

The Campaign argued that the Court should determine that the whole of the PHA was protected as agricultural land under the Subdivision of Agricultural Land Act 70 of 1970 (“SALA”). Such a determination would require additional approval to develop that Oakland did not receive. The Court found this argument problematic both on procedural and substantive grounds. 

Procedurally, the Court determined that although such a determination would affect all land owners within the PHA, these land owners might not have been provided notice of, or an opportunity to participate in, court proceedings. 

In addition, the Court also agreed with the City’s argument that because the applicable land had been officially designated for both horticulture and sand mining, it was not designated exclusively for agricultural purposes. The Court determined that under the terms of SALA and transitional planning law provisions this double designation excluded the PHA from coverage under SALA. “Consequently,” the Court concluded, “when Oakland submitted its application for the subdivision of its land in June 2015, the land was not agricultural land as defined in the SALA and the provisions of the SALA therefore did not apply.” [45.] 

(2) The City did not illegally shift the urban edge [46-55]

The Campaign argued that the MEC illegally shifted the urban edge in 2011 when he amended the urban structure plan without proper authority to do so, and that this decision “tainted” the separate decision taken in 2012 by the City of Cape Town to adopt the shifted boundaries in the Cape Town Spatial Development Framework (“CTSDF”). 

The Court noted that “[i]n the recommendation put to the MEC by provincial officials no mention was made of the statutory provision in terms of which he was empowered to take such a decision.” [48.] 

However, the Court determined that any potential problem with the MEC’s decision was nullified by adoption of the urban edge shift in the 2012 CTSDF. It is clear from the Court’s decision that it did not follow the Campaign’s argument regarding the connection between the illegality of the 2011 MEC decision and the 2012 CTSDF decision. Indeed, the Court expressly noted that the Campaign’s failure to sufficiently make this claim: “The applicants accept however that no challenge has been brought concerning the validity or otherwise of the 2012 CTSDF. When Mr [sic] Bridgman for the applicants was asked during argument why this was, he indicated that this was a conscious decision taken without the value of hindsight.” [52.] Accordingly, “without a challenge raised to the 2012 CTSDF, a review of the 2011 decision would produce a wholly academic result lacking in any tangible effect.” [54.] 

(3) The Provincial government failed to adequately consider the impact on the aquifer in approving the environmental authorization and exemption for the Oakland City proposal [56-108] 

The City argued that the MEC’s and DEADP’s approval the environmental authorization and exemption for the Oakland City proposal violated the Promotion of Administrative Justice Act (“PAJA”) by failing to take into account relevant considerations regarding the impacts of the proposed development on the aquifer/ground water, food security, climate change, land reform, heritage, the no-development alternative, need and desirability, cumulative impacts, and gaps in knowledge. The Campaign also argued that these decisions were not rationally connected to the information before the decision-maker. 

Regarding scoping reports and the environmental impact assessment prepared for the project, although the Court agreed that “[t]here is merit in the contention that there were impacts not expressly identified, or insufficiently considered” [78], it concluded that “the shortcomings complained of were limited to particular issues and were not sufficient to warrant a conclusion that the entire scoping and assessment was fundamentally flawed and non-compliant with the relevant statutory provisions” [78]. 

Similarly, the Court decided that, with one (significant) exception, DEADP and the MEC on appeal properly considered most of the relevant issues, including food security, heritage, and socio-economic considerations. [94.] 

The one major exception that the Court found to the decision-making involved consideration of the impacts of the proposed development on the aquifer. The Court noted that “[t]here appears to be merit in the applicants [sic] complaint that the groundwater study conducted was ‘wholly inadequate’ for the purposes of assessing the impact of on [sic] the aquifer more generally, with the only groundwater issue identified as a potential impact being ‘post mining ‘exposed’ groundwater’” [100]. The court also noted that the studies relied on in the decision-making were years old and did not address “the broader consideration of the preservation, health and recharge of the aquifer in the context of water scarcity and climate change so as to enable the decision-maker to assess the impact on the aquifer” [100]. 

 Although the Court found that the MEC on appeal took into more careful consideration the impact to the aquifer, the Court nevertheless found that the narrow and dated information in the available reports did not include an adequate assessment of the “health of the aquifer given climate change and water scarcity in the area” [102]. As a result, the Provincial government as a whole did not take into account relevant considerations, its approval of the proposed development violated PAJA. Furthermore, “[g]iven the limitations in the information before the MEC in this regard a decision was arrived at which was neither rational nor reasonable” under PAJA as well [103]. 

 The Court’s remedy for the violations was “to set aside the MEC’s ruling on appeal and remit the matter back to him for reconsideration of new evidence and reports relating to the aquifer” [107]. 

(4) The City failed to adequately consider the impact on the aquifer in approving rezoning and subdivision of the Oakland land [110-135] 

The Campaign sought review of the decisions of two City panels, the Interim Planning Committee’s November 2016 approval of the rezoning and subdivision of Oakland land, and the General Appeals Committee’s June 2017 decision to refuse appeal. The Court noted that “where a decision-maker is directed by law to consider particular issues . . . a risk-averse and careful approach especially in the face of incomplete information should be adopted; and the failure to take relevant considerations into account risks a determination that the decision reached was irrational or unreasonable” [130]. Regarding environmental considerations, “[w]hat was required of the relevant decision-makers was a consideration of relevant considerations concerning the preservation of the natural environment and the effect of the application on existing rights” [130]. 

Turning to the specific issue at hand, the Court noted that “[i]n relation to the aquifer, an assessment of the impact of development on it, having regard to the rights set out in s 24 of the Constitution and the provisions of NEMA and its regulations, required consideration of the impact of the rezoning and subdivision sought in relation to the aquifer as a large underground natural resource, its state, future and impact on issues related to water scarcity and climate change” [130]. 

 For largely the same reasons that the MEC did not properly assess the impacts to the aquifer, i.e. a lack of up-to-date reports specifically concerning the health of the aquifer, the Court held that in the case of the City “the relevant considerations were not considered in the determination of the appeal in relation to the aquifer and that this resulted in a decision which was neither rational nor reasonable having regard to the material before the General Appeals Committee on this issue” [134]. 

Other considerations, such as preservation of the nature and developed environment, were adequately taken into consideration by the City, according to the Court, based on the fact that “the Oakland land has not been farmed, does not produce vegetables and does not contribute to food security in the City currently” [131]. 

The Court determined that the appropriate remedy for the violation was to “remit the matter to the General Appeals Committee for a reconstituted appeal process to take place restricted to consideration of the desirability of the applications in the context of the preservation of the natural environment and the effect of the application on existing rights in relation to the aquifer in the context of climate change and water scarcity in the City” [135]. 

(5) Other issues decided by the Court 

The Court also: 

  • struck various statements provided in the Campaign’s reply affidavits, describing some of the language “intemperate” and the papers “prolix” [17-24]. 
  • held that of notice and opportunity to comment on rezoning and subdivision of land was adequate [136-138]. 
  • awarded costs to the Province, City, and Oakland City related to their cross motions for striking various portions of the Campaign’s amended reply; awarded costs to the Campaign related to issues regarding issues on which they prevailed [140-141]. 

What are the big take-aways from the case? 

First, the Campaign scored a major win in nullifying the Province’s environmental authorization and the City’s land use decisions, but the grounds for this victory is narrowly based on impact to the aquifer. Consideration of food security and socio-economic impact were not grounds for review.

Second, because the remedy for the Campaign’s successful claims is reconsideration by the same authorities, the Province and the City will have another chance to decide these issues. This provides the Campaign with further opportunity to make their case, but likewise allows the Province and the City to make the same decision again. 

Finally, the Court’s decision is very unfavourable in that the urban edge shift still stands. While appeal might be possible regarding this issue, a political or administrative solution, i.e. a decision by the City itself to reintegrate the Oakland City land into the PHA, would be a more straightforward position. Given the extensive evidence supporting this area's continued inclusion in the PHA, this decision would be easy for the City to justify, a decision even more compelling if the Oakland City development proposal is ultimately dropped.

Friday, January 31, 2020

South Africa’s Energy Grid Wake-Up Call, Part 3: Embedded Futures

Climate change and corruption are making the case for switching South Africa to a distributed network powered by renewable energy. This is the third of a three-part series that shows how.

See also Part 2, Circuit Overload (here or here), and Part 1, Planning for Failure (here or here).

Perhaps the only type of climate change-related article more common than the doomsday crisis story is the story about the next supposedly game-changing technological fix. This is not that (although, ok, it does reference technology). It is about the prospect of a different model for supplying the bloodline for modern society, one that addresses some of the major factors contributing to the mess that South Africa’ electricity grid finds itself in. As an alternative the centralized, asymmetrical system we have, South Africa could shift towards a dynamic embedded energy grid powered by a distributed network of largely renewable energy sources. Such a system presents the prospect for radical change to a hundred-year-old system. The transition will not be easy, but South Africa’s latest rounds of power outages teach an essential lesson: that the country can ill-afford to remain on its current path.

In order to comprehend a future built on embedded generation, one must understand the status quo. Conventional electric grids like South Africa’s are powered using centralized sources of energy, such as coal-fired power plants, gas-powered turbines and hydroelectric dams. These sources generate massive amounts of energy and that are often located far from where the electricity they produce is used. It is a highly asymmetrical system connecting a few energy producers with many, many energy consumers. While this configuration benefits from economies of scale, it also leaves the users more susceptible to failure when these plants break down or transmission is disrupted.

Enter embedded generation, also known in some parts as distributed generation.

Like a tree spreading up to millions of separate leaves to catch the sun’s light, an embedded grid relies on a myriad of small-scale and on-site power generators to produce energy. The one-way flow of energy is disrupted, and a dynamic grid in which users are also producers replaces it. Such systems require both infrastructural and legal adjustments, but the robustness and redundancy would pay dividends in climate-proofing the country.

Embedded generation’s distributed nature spreads the task of power generation, mitigating the risk of disruption of any one source. It is also incremental and can capitalize on advancements in clean renewable technologies that don’t exacerbate the climate problem. Solar and wind can be co-located next to people more easily than either massive industrial power plants or polluting diesel generators, and they are generally more efficient at converting energy into useable forms. And while the intermittent nature of solar and wind power—the sun doesn’t always shine, nor the wind always blow—has limited their usefulness in meeting steady “baseload” demand, new battery technology improvements have made great strides towards storing energy for later use. A diverse and embedded grid itself can also mitigate intermittency, drawing on different energy sources in different parts of the country to make up for lack of generation in other parts.

Embedded generation should not mean uniformity; it calls for a healthy mix of suppliers and sources at all scales, from large-scale generators to commercial independent power producers and on-site generation for self-consumption or sale back to the grid. There is also an important place for government-sponsored and community-based models and regulation to provide for the needs of all South Africans. In addition, energy efficiency measures and demand-side management, which involve curtailing waste, are also critical complementary strategies, and provide even more opportunities for commercial innovation, which can be paid for through savings created by increased efficiency. A grid that is both dynamic and efficient is better placed to confront the needs and challenges of the future. South Africa needs to start moving in that direction.

No doubt an embedded future would significantly disrupt the current financial and systematic model of South Africa's biggest electrical utility, Eskom. Eskom’s financial picture in particular, discussed previously in this series, is an important concern because the company acts not just as a generator of electricity under the current system but also as the distributor. But concern about Eskom’s financial state and the need for a coordinated distribution system shouldn’t be confused with good reasons for perpetuating an increasingly broken system. There will likely always be a role for integrated and coordinated control of the grid network, but so long as corruption and maladministration are problems, it seems prudent to minimize choke-points in the system that can be manipulated. The current system entrenches an unnecessary monopoly favoring an unbalanced approach to power supply. The financial stability of Eskom or other entity or entities coordinating the grid should be secured, but not simply for the sake of Eskom shareholders and at the expense of a more resilient energy system that would benefit all South Africans.

Eskom’s vertical monopoly on electricity is not necessary, as demonstrated in competitive energy markets like those in the United States. Entrenched business models and economic interests are not a sufficient justification for maintaining the status quo when alternative models would be better for consumers, the environment, and the industry itself in the long run. There is no overpowering basis for Eskom’s monopolization of electrical generation, and the history of state capture and poor service delivery in South Africa suggests that providing room for self-sufficiency and local control is sensible.

As a growing chorus of observers are noting, government support is needed for the transition to a more reliable and less environmentally destructive energy grid. National law and policy necessary for enabling embedded generation and renewable sources has been fragmented, moving in fits and starts. The Department of Energy’s plan for increasing renewable energy capacity over the long-term, including embedded generation, is positive but modest, and also doubles down on building additional coal capacity. Recent regulatory changes have helped loosen the red tape preventing small-scale generators from connecting to the grid, but the country still lacks the sort of policy support and investment that has catapulted small-scale generation in other countries. Unfortunately, but perhaps unsurprisingly, Eskom has dragged its feet in complying with existing law and in implementing distributed energy storage systems. In sum, significant regulatory and policy obstacles remain to implementing an embedded grid fed by renewable energy.

Whether or not the government is on-board, residents and businesses are already searching for embedded solutions. For Rubin, my grocer who I introduced in the first part of this series, it’s about seeking a more reliable power source for his business. The general consensus between store owners in his area is that load shedding will remain an issue. “A lot of businesses are moving away [from Eskom] and trying to get off-grid.” The cost of transitioning is an issue: “for a small business it’s really challenging because you don’t have the capital or the budget to invest in things like generators or solar power.” Nevertheless, he’s convinced it’s a change he and many others will have to undertake.

Monday, January 27, 2020

South Africa’s Energy Grid Wake-Up Call, Part 2: Circuit Overload

The climate crisis and corruption are making the case for switching South Africa to a distributed network powered by renewable energy. This is the second of a three-part series that shows how.

See also Part 1, Planning for Failure (here or here).

Climate change and corruption, two ephemeral forces lurking in the background, each composed of many discrete but interconnected events linking together to create seemingly unvanquishable scourges. Neither are unique to South Africa, yet the country appears particularly vulnerable to both. And so it was last month when intense rains tripped South Africa’s national electrical circuit, unleashing new electrical outages that hit historic highs, bringing new lows for a parastatal electrical utility already marred in scandals.

The overload of problems affecting South Africa’s electricity grid are many and varied, and include high rates of unplanned breakdowns at generation stations, massive corporate debt, increasing demand, aging infrastructure, delays in bringing on new power stations, and even potentially intentional sabotage. But despite all of the variety, the imprints of corruption and climate change in particular mark their destabilizing influence in the grid, whose own structure reveals itself to be particularly vulnerable to their impact. In other words, it is not just that the climate and corruption are clearly undermining the grid; it is also that the grid’s configuration is particularly sensitive to their impact. Last month’s outages capture a frame of this larger story.

A Grid Built on Coal, for Coal

The breaking point causing electrical outages last December came with heavy rains and extreme flooding in the eastern part of the country, causing damage to infrastructure and rendering coal supplies unusably damp at some of Eskom’s coal-fired power stations. Eskom’s and the country’s problems with coal go much deeper than dampness, however. It is not news that South Africa is and will continue to become more prone to extreme weather events. The Intergovernmental Panel on Climate Change, the world’s foremost group of scientists studying the issue, has predicted an increasing likelihood of extreme weather events in South Africa, including extreme flooding in the wetter southeastern areas of the country even as the southwestern areas experiences dryer conditions.

South Africa’s own government has acknowledged what the science says about the climate crisis, and has even moved to address the issue in national and local policies. But a variety of factors challenge progress, including countervailing economic pressures and an entrenched domestic fossil fuel industry. Elsewhere, research indicates that increasing extreme weather events and other climate change factors will impact electricity grids in a way underestimated by utility officials themselves.

While on the one hand South Africa’s grid will need to deal with the burden of a changing climate, on the other hand its supply mix is exacerbating the very problem it faces, not to mention more immediate air pollution issues that affect human health. Eskom is responsible for supplying 95 percent of the country’s power, and 90 percent of its supply is generated through coal-fired power plants. Overall, coal provides more than 77 percent of South Africa’s energy needs, contributing to the country’s outsized carbon footprint.

In contrast, renewable energy accounts for a tiny fraction of Eskom’s energy mix. According to Eskom, only a tiny sliver of its own generation is derived from wind or solar, with independent power producers providing most of the still small total amount utilized. Moreover, Eskom has spent years and hundreds of billions of rands (tens of billions of dollars) building new coal power plants, which are now long delayed and far over budget. This in a country blessed with significant wind and solar resources.

The result is a country overdependent on Eskom for power and on coal for energy, at a time when most of the rest of the world is seeking to ratchet down carbon emissions in the face of the climate crisis. Yet the system built on coal is also built for coal, with highly centralized and asymmetrical generation and distribution networks reliant on massive coal mines and mammoth coal-fired power plants. It is unsurprising then that this model’s best approach to satisfying the country’s energy needs is through more extractive mining and coal-leaning industrial-sized generation. The unfortunate consequence, as last month suggests, is a lack of resilience in the system and higher susceptibility to large-scale blackouts when a small number of generation sources are disrupted.

Choke Points and Monopolies

Were it that South Africa’s over-reliance on coal was its only issue. Eskom’s track record of poor execution and delivery of projects is no secret, but the troubles appear to go beyond mere maladministration. Early last year, South African media exposed the findings of an unpublished report by South Africa’s anti-corruption Special Investigating Unit concluding that in 2008 Eskom officials intentionally ignored coal supply issues to induce a “self-created emergency” leading to South Africa’s first experience with load shedding. Having precipitated a crisis, Eskom officials apparently bypassed normal procurement processes to enter into shady energy contracts with third party coal providers at massively inflated rates.Another 2015 report by the international law firm Dentons indicated that similar contracting irregularities may have been implicated in further load shedding events in 2014. South African media have also highlighted how politically connected businessmen have profited from contracts whose terms are unfavorable to Eskom. In some cases, these parties have either delivered poor quality products or services, or have not delivered at all. Eskom’s history with other large infrastructure projects is similarly suspect. For instance, its aborted deal regarding new nuclear generation has likewise faced its own corruption scandals.

Meanwhile, Eskom faces staggering debt and a financial model that has struggled to keep up with mounting maintenance and repair issues, another factor in the December crisis and other load shedding events. The financial viability of utilities such as Eskom is based on increasing profit margins from the sale of power to customers while lowering marginal production costs through largescale centralized generation. In other words, Eskom’s strategy is to make more and sell more (coal-fired) power in order to make up for financial shortfalls, or else seek direct help from the government and, ultimately, tax-payers.

Certainly, problems regarding corruption and financial solvency do not stem solely from the highly centralized and vertical nature of South Africa’s grid. It is easy to see, however, how such a structure and Eskom’s “too big to fail” role in the electricity market would create opportunities for graft and mismanagement. Monopolies over technical and managerial expertise and information, as well as over centralized public services themselves, can help facilitate opportunities to illegally leverage that power, while highly bureaucratic systems detached from the communities they serve are prone to abuse because of a lack of accountability. Eksom’s role in maintaining the grid, and its operational and financial structure, create the very choke points and monopolies that can be easily used in the service of corruption.

In a country and world increasingly susceptible to extreme weather events, the already thin margin of error in managing a national electrical grid becomes threadlike. Scientists warn us to expect climate change to magnify problems caused by Eskom’s history of mismanagement and over-reliance on a centralized system built on coal, a prime contributor to the atmosphere’s CO2 levels. Yet South Africa’s grid is tethered to coal and a highly centralized structure that go hand-in-hand, leaving it exposed to the corrosive effects of climate change and corruption. The question is, are South African’s willing to accept more of the same? 

Up next: Part 3, Embedded Futures.