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After the Bell: Now that we’re all going solar, who owns the sunlight again?

After the Bell: Now that we’re all going solar, who owns the sunlight again?
Tim Cohen
By Tim Cohen
19 Mar 2023
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Until recently, nobody has ever really thought about the ownership of sunlight; it’s obviously res extra patrimonium, but in a desperate effort to end the debilitating effects of load shedding, the government is now positively encouraging the establishment of solar-power generation.

It’s only when you start delving into Roman law that you realise what an extraordinary culture the Romans had all those millenniums ago. The sophistication, the logic, the sense of duty and obligation, the culture of rights and the ethical underpinnings are all forerunners of the legal systems that followed over the years, including ours today. We don’t realise it, but so much of what the Romans invented between the second century BC and the sixth century AD we just take for granted now. 

The ethical exception of course was slavery, the dark underpinning of the Roman economy and culture. But, of course, slavery was common in Roman times not just among Romans, and it endured for centuries afterwards. But the Romans embraced it, as their martial culture dictated. Roman society was also a little lacking in the women’s rights department, if we are being honest. 

Anyway, we know a lot about Roman law because some texts have survived intact; thankfully, the Romans were obsessive about keeping records. One of the most famous is a textbook called The Institutes written by the Roman jurist Gaius around 161 CE on Roman private law. When the emperor Justinian codified Roman law in about the 6th century, he incorporated much of Gaius’ teaching directly from his Institutes.

Gaius started out his examination of private law by dividing all things into four categories: 


  1. Things that could be owned privately,res in patrimonio (houses, spades);

  2. Things expressly excluded from private ownership,res extra patrimonium (the air, rivers, the sea);

  3. Things excluded from private ownership for everybody’s use,res publica (rivers and harbours); and

  4. Things that fell under divine law,res divini iuris (tombs and burial grounds).


Because of Gaius’ interpretation, in most countries around the world, it’s not possible to own the beach below the high-water mark, because the so-called wet-sand area is res extra patrimonium, and that has been passed down over the years into the notion of areas that are part of the public trust.  

“By the law of nature these things are common to all mankind: the air, running water, the sea and consequently the shores of the sea,” is the quote from Justinian’s Institutes.

So, why am I going on about this? Because we have a problem with sunlight. Until recently, nobody has ever really thought about the ownership of sunlight; it’s obviously res extra patrimonium, but in a desperate effort to end the debilitating effects of load shedding, the government is now positively encouraging the establishment of solar-power generation. 

As an advocate of solar power for decades now, I’m just loving the gradual conversion of the world to this obvious, cheap, plentiful power source. According to US entrepreneur Elon Musk, the infrastructure needed to supply the entire planet with wind and solar power would cover less than 0.2% of the Earth’s surface.



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But, as a thoughtful reader pointed out to me recently, there is a question here: who gets to exploit the sun? The government, in its desperation to minimise the considerable political fallout from load shedding, is showing its usual lack of vision. Off-grid applications in SA are being monopolised by the people with the capital base to create the infrastructure. That would be, of course, the middle class. And what about the rest of South Africans who can’t afford the hefty price tag?

Let’s assume this process is successful and many of SA’s middle class buy off-grid solutions. The possibility is not even remote because the costs have declined so propitiously. An ordinary suburban house could satisfy most of its power requirements for an expenditure of somewhere between R200,000 and R300,000. And you can offset some of that expense because it probably boosts your property value by something like the same amount (and of course, you have far lower Eskom bills).

But already, municipalities are worried about what will happen if their high-usage, paying clients leave the grid en masse. My guess is that what will happen will be similar to the gradual white-anting of the Post Office, whose functions are quickly being usurped by couriers, or retailers like PEP and their Paxi counter service. What you end up with is a downward spiral, where the income the government once enjoyed from providing the service is curtailed and the now out-of-kilter salary bill absorbs any capital the institution would have otherwise used to modernise. Then the service becomes less proficient, and the move to the alternative, private-sector option starts to snowball.

But of course, the sun also shines on township houses, so there should be an opportunity for poor people to take advantage of this, too, not only to use the power themselves, as many do, but to sell it back into the grid to earn a little cabbage. This would encourage people on to the grid and, in turn, create demand for what we need most: a grid that functions.

Maybe there should be an incentive programme for the private sector to develop township solar grids, instead of only an incentive to provide solar grids for themselves. Or there could be tax incentives specifically for private township grid suppliers. There are dozens of options. DM/BM

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