Linking the Right to Electricity as a Contractual, Derivative and Human Right through the Undisclosed Principal Agency Law

Abstract

The South African Constitution in its Bill of Rights does not explicitly detail a human right to electricity, as with other socio-economic rights. This, however, does not change the fact that electricity is a sought-after commodity that is essential to the everyday life of people in the modern era and essential to the development of a nation's economy. The only instruments that detail electricity as a right are international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women and the United Nations Sustainable Developmental Goals, that emphasise electricity as a right that states must fulfil towards their citizens. This discussion hypothesises that the company law agency model of the undisclosed principal can be used to better explain the relationship between Eskom, municipalities or private municipal service providers and citizens. It discusses a three-way legal relationship among these stakeholders when providing electricity. Due to the three-way legal relationship, three forms of rights exist: contractual, derivative and human rights. By using undisclosed principal agency law, this discussion will explain how the legal relationship between the state, municipalities and citizens, and the resultant duties herein, create contractual, constitutional and human rights duties for the state to adhere to for the ultimate benefit of citizens.