Courts Rewrote African Power Risk First

South Africa’s Constitutional Court, in a unanimous judgment by Acting Justice A. Nuku on 17 September, declared Public Procurement Act 28 of 2024 unconstitutional and invalid. The same Thursday, an ICC tribunal in Paris dismissed Sunrise Power and Transmission’s claims against Nigeria over the Mambilla hydroelectric project and ordered the claimant and its promoter to reimburse most of Abuja’s legal bill. Wires filed both as infrastructure wins. They are court files.

The dominant account of Pretoria is already correct as far as it goes. Parliament failed to facilitate meaningful public participation. After material changes to Chapter 4 on preferential procurement, stakeholders had hours, not weeks, and National Treasury told the court it had considered about 40 of 112 submissions. The Western Cape, Cape Town, amaBhungane, and Solidarity won. The Act, signed in July 2024, never commenced. GroundUp’s reporting is the clean version: it is off the statute book.

The residual is the regime that did not change

If the defect was how the Act was passed rather than what it does, why treat Thursday as a capital event? Because lenders do not price a statute they cannot use. They price the clock until a replacement can be used.

The Act was meant to consolidate a fragmented system and impose a more prescriptive Chapter 4: set-asides, prequalification, subcontracting, local content. The court found that chapter “material enough to warrant additional public participation.” It did not rewrite PFMA tenders. Those still run under the statutes that were never displaced. City of Cape Town’s fear — that the new Act would slow water, sanitation, and electrical work — is a fear of a law that is now void, not a new operating manual.

What remains is duration. Conviction’s readout is that Parliament must restart the process. Reporting so far does not show a Court-imposed calendar, a Treasury circular changing live bids, or a lender letter repricing South African project debt off this judgment. Risk premia move when rules freeze funds, not when an unused law dies. Until a Gazette date exists, the risk is legislative, not contractual.

Abuja cleared a claim, not a plant

Sunrise sought on the order of $2.35 billion from a 2003 build-operate-transfer fight over Mambilla, then a $400 million settlement-and-default overlay from a 2020 deal. The three-member ICC panel rejected the breach declarations and the $400 million ask, held promoter Leno Adesanya bound by the arbitration agreement, and ordered Sunrise and Adesanya to cover 75 percent of Nigeria’s $11.82 million legal costs. President Tinubu called it the “single biggest legal hurdle” on a 3,050–3,960 MW scheme that has been stalled for two decades. He thanked former presidents who testified. That is the political close.

It is not a financial close. An award that knocks out a claimant does not substitute for a bankable EPC package, a offtaker, or a multilateral term sheet. Sovereign paper can reprice on a policy turn without a project moving. Mambilla is the inverse: the overlay is gone; the concrete is not poured.

Thursday changed who may write the next statute and who may still sue over the last one. It did not change a bid price.

What still mis-prices is treating a participation judgment as a new procurement code, or an ICC dismissal as a hydro FID. The test is boring and dated. Watch for a National Treasury circular or parliamentary timetable that actually reopens Chapter 4 — and for a Mambilla financing notice that names lenders, not only a tribunal. Peace priced in a market is not the same as a corridor reopening. Courts moved first. Capital has not.