Jay  Govender

Jay Govender

Director, Sector Head

Jay Govender is a Director and Head of our Projects & Energy Sector. She has extensive experience, both for public and private sector, in public-private partnerships (PPPs), infrastructure development, power projects, due diligence exercises, public procurement, regulatory advice and opinions.  She has represented and has been mandated by a number of the state-owned entities, municipalities, government departments, developers, lenders and sponsors.  She has led a number of cross-border and South African energy and infrastructure projects.

 

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Jay was admitted as an Attorney in 1998 and joined Cliffe Dekker Hofmeyr as a Director on 1 February 2012. She was appointed as the Projects & Energy sector Head in April 2015.

Her areas of speciality in the energy sector extend to all aspects of power procurement, generation, transmission, distribution, supply and connection. She has advised on purchase agreements and negotiations, cross-border technical agreements, cross border power transmission and regulatory issues, transmission infrastructure, cross border power pool issues, wheeling, IPP procurement,  greenfield and brownfield project-financed power projects, sovereign support and security structures, regulatory framework governing the electricity sector, governance, technologies of coal, wind, solar CSP, solar PV, landfill gas, biomass, gas, nuclear, coal, steam, diesel, co-generation, hydro and battery storage, transmission and distribution connection and related agreements.  She has experience in multiple jurisdictions, including South Africa, Botswana, Mozambique, the DRC, Tanzania, Zambia, Eswatini, Kenya, Zimbabwe, Ethiopia, Malawi, Mauritius.  

Jay forms part of a working committee mandated by the United States Department of Commerce in developing and facilitating power projects for the Obama Power Initiative.  As part of her work, Jay has trained regulators, utilities, transmission companies, distribution companies, and development banks on power purchase agreements and financing of power projects in Washington DC, Rwanda, Tanzania and South Africa on a pro-bono basis.  She has also co-authored three handbooks on Understanding Power Purchase Agreements (2015), Understanding Power Project Finance (2016) and Understanding Power Project Procurement (2017), which illustrates that she is regarded as the thought-leader in this field.   

Jay's PPP experience extends to greenfield and brownfield projects in healthcare, prisons, office accommodation, water and stadia. She has acted as transaction advisor to the procuring institution as well as for lenders and the private party.

IPP Programmes: South Africa - (2008 to 2018)

Lead legal advisor to Eskom (the largest electricity utility in Africa) in its role as buyer, National Transmission Company, distributor and system operator in all of the Independent Power Producer (IPP) Energy Programmes. Although procured by the then South African Department of Energy under specially developed procurement programmes, the IPP Energy Programmes follow a similar format to the PPP model and standardisation. These mandates are wide ranging and include advising on the review and amendment of the standardised power purchase agreements, procurement documentation, drafting of the standardised grid connection agreements, advice on regulation, cost recovery, risk allocation, governance, tariff principles, regulator issues, on the respective energy technologies, contract management and disputes.  Jay has advised on the following programmes:

  • Renewable Energy IPP Procurement Programme
    According to the WWF, this programme is hailed as a flagship public-private partnership model for South Africa and the rest of Africa.  It has been designed in accordance with a national commitment to transition to a low carbon economy, to contribute towards socio-economic and environmentally sustainable growth, and to start and stimulate the renewable energy industry in South Africa.  The programme encompasses the following technologies: onshore wind, concentrated solar power, solar photovoltaic, biomass, biogas, landfill gas and small hydro.  In addition to the above this mandate also includes contract and claims management for Eskom for all of the 92 renewable energy projects (in various stages of procurement) under the programme, as well as the resolution of disputes and all ancillary processes contemplated under the project documents. The REIPP programme completed 4 bidding rounds with concluded power purchase agreements for 92 projects and for a total capacity of 6327 MW. Jay advised on all 92 projects. In the first 8-years the programme is reported to have attracted R209.4 billion of private sector investment.
  • Small Projects IPP Procurement Programme
    This mandate includes small renewable projects with a capacity cap of 5MW each aimed at emerging smaller developers with an emphasis on South African and SME participation. The anticipated total capacity for this programme was planned at 400MW of capacity.

Co-generation IPP Procurement Programme

  • This mandate includes co-generation technology with a host private sector customer and with energy offtake to Eskom. The programme was structured to procure energy through three technologies - waste to energy, combined heat and power (CHP), and industrial biomass. The programme has two common characteristics which is that the fuel and/or energy source originates from an underlying industrial process and the cogeneration facility is coupled to the industrial process of a host plant. The programme was designed to procure 1800MW of capacity.

Coal Baseload IPP Procurement Programme

  • This programme was designed to procure a target of 2500MW of energy, which is to be generated from coal fired power generation technology that include boilers of the pulverised coal or fluidised bed type. As an indication of the magnitude of this programme - the first two projects (totalling 860 MW) have a combined investment value of R40.2 billion.

South African Department of Energy's IPP Peaking Power Generation Projects

  • This mandate entails the contract and claims management on behalf of Eskom for the Dedisa and Avon peaking power stations (diesel generation), which have an installed capacity of a 1000MW. Both projects are in its operational phases.

Nuclear New Build Programme

  • The South African Nuclear Programme was the largest procurement programme in the history of South Africa and could cost upwards of R1 trillion. The South African government had determined that 9600MW of electricity should be generated via this programme, which is equal to 18% of South Africa's current installed generating capacity and as such a massive expansion.  This mandate included advice on the procurement of the entire programme - which entailed enabling policy, RFP design, project agreements, contract negotiation and financial close. The procurement of nuclear technology has since been put on hold by the SA government.

IPP Programmes Ethiopia

  • Lead legal advisor to Ethiopia Electric Power (EEP) its first IPP procured renewable energy project. We advised in the design of the Metehara 100MW Solar PV procurement programme, including the drafting of the entire suite of standardised agreements (RFP, PPA, IA and Connection Agreement). This mandate also included assistance with the actual procurement process, which included addressing clarification questions received from bidders, and training EEP's employees.
  • Lead legal advisor to Ethiopia Electric Power (EEP) in its first IPP procured hydro power project. We advised the design of the Chemoga Yeda I and II 280 MW Hydro IPP procurement programme, including drafting of the entire suite of standardised agreements (RFP, PPA, IA and Connection Agreement). This mandate also included assistance with the actual procurement process, which included addressing clarification questions received from bidders.

Transmission Infrastructure

  • Lead legal advisor to the South African Power Pool (SAPP) for the ANNA Transmission Interconnector project, which is expected to link the Namibian and Angolan electricity networks in the north western part of Namibia and the southern part of Angola. This mandate includes feasibility studies, the design of a procurement programme as well as drafting the Engineer, Procure and Construction (EPC) contract.  
  • Lead legal advisor to the regional regulator ERERA of West African Power Pool, Economic Community of West African States (ECOWAS) in standardising its bilateral energy trading agreements in respect of all 14 member states in West Africa, as well as their transmission network access agreements.
  • Lead legal advisor to the South African Power Pool (SAPP) for the RTIFF project, being the establishment of a fund to support the development of regional transmission infrastructure. The client group includes SAPP, SADC and the World Bank.
  • Advisor to Eskom Holdings SOC Limited in the STE Project regarding the design, financing, construction, commissioning, operation and maintenance of the Mozambique Regional Transmission Backbone Project from Tete to Maputo.

USAID

  • Lead of the legal stream in the USAID Southern Africa Energy Programme (SAEP) as subcontractor to Deloitte for the USAID Southern Africa Energy Program (SAEP).  The SAEP aims to increase electricity availability and access, supporting all countries in Southern Africa. As sole legal services provider to Deloitte for the SAEP the mandate encompasses a wide range of issues including legal reviews and drafting linked to regulatory, legislative and policy documents; procurement models; transaction advisory documents; Power Purchase Agreements (PPAs); interconnection agreements, and permits, authorisations, approvals and licenses, and the like.  
  • Lead of the legal stream in the USAID Nigeria Power Expansion Programme, as subcontractor to Deloitte. The programme aims to increase electricity availability and access to Nigeria. As sole legal services provider to Deloitte, the mandate encompasses a wide range of issues including legal reviews and drafting linked to regulatory, legislative and policy documents; procurement models; transaction advisory documents; Power Purchase Agreements (PPAs); interconnection agreements, and permits, authorisations, approvals and licenses, and the like.

Utility linked power generation

  • Advisor to the project company in its development of a biomass energy generation project in Kenya using gas produced from agricultural waste and by-product as the fuel source.
  • Joint-Lead advisor to Eskom on the proposed interim short-term gas-fired power purchase agreements concluded with Aggreko, involving cross-border transmission of energy from Mozambique to South Africa. The project has scooped the award of the “Best Fast Track Energy Project in Africa” at the 2013 Africa Energy Awards.
  • Advisor to Eskom on the construction, operation and maintenance of the 1,500MW Mphanda Nkuwa Hydopower Plant, located on the Zambezi River in Mozambique.
  • Advisor to Eskom on the Grand Inga Hydro Project, which will, when completed, generate 40,000MW of electricity and be the world's largest hydro scheme located in the Democratic Republic of Congo.
  • Advising a client on the potential acquisition of shareholding in the 29.4MW Curepipe Point Wind farm to be developed in Mauritius, which included a due diligence on the PPA, IA, EPC, O&M and ancillary agreements, reports and permits.
  • Advisor to Eskom, in a joint mandate, in the international greenfield coal fired Mmamabula Power Project located in Botswana. Our mandate in the project was wide ranging extending from conducting a full feasibility study, project finance elements, technical issues on the construction and integration of a power station and transmission system, power purchase negotiation, IPP engagement, lender and sponsor interaction, tariff calculation and assessment, regulatory issues, advice on inter-government interaction, secondary off-taker synergy, cross border regulatory issues, amongst others.
  • Assisting a leading global project developer in responding to a number of requests for proposals across various jurisdictions (Morocco, Ghana, Namibia, Mauritius, Egypt, South Africa, Zambia), including reviewing and advising on the proposed power purchase agreements, implementation agreements and connection agreements issued.
  • Advisor to the sponsor and developer regarding the ownership, development, construction, operation and maintenance of a 660MW coal fired power plant in Zimbabwe.
  • Advisor to a private equity investor in the acquisition of a solar power project located in Namibia.
  • Advisor to a private equity investor in the share acquisition of a large-scale power developer with a large portfolio of power projects across Africa.
  • Advisor to an IPP on various issues raised by the Regulator pertaining to IPP projects in Namibia.
  • Review and comment on bankability issues across various IPP unsolicited power purchase agreements in Malawi.

Transmission and Distribution supply and connection

  • Advisor to Eskom Holdings SOC Limited in the review and standardisation of all its distribution electricity supply agreements. This includes the relevant Cost Estimate Letters, Budget Quotes and related documents.
  • Joint Advisor to Eskom, on the appropriate regulatory regime enabling load-curtailment or reduction during network and capacity constraints.

Captive Energy Projects

  • Advisor to a large industrial offtaker in the development of a 600 MW LNG gas to power plant in Saldanha.
  • Advisor to a project developer in respect of the development and financing of a captive solar project with exclusive offtake to a mining company in South Africa.
  • Advisor to a large real estate owner and investor, in a portfolio of solar rooftop projects across its various properties with dedicated supply and offtake to client.
  • Advisor to a portfolio solar rooftop developer in all aspects of the project development and financing in a project where the offtaker is a large industry with multiple properties across South Africa.
  • Advisor to Investec Bank in its capacity as Borrower on the development, construction, operation and maintenance of a captive thermal to energy power plant. The project has won a number of awards for innovation.
  • Lead legal advisor to Investec on the acquisition of a gas-piped distribution business.
  • Advisor to a licensed gas distributor in drafting standardised gas supply agreements for all categories of customers.
  • Lead Legal Advisor advising the City of Johannesburg in the review of the power purchase agreement and related project agreements and issues for the coal-fired Kelvin Power Project.

Regulatory and ESI Structuring

  • Drafting new power generation regulations for the Republic of Eswatini, in a mandate under SAEP.
  • Representing Eskom on the full ambit of the legal implications of conducting business under its Private Sector Participation Projects. The purpose of this mandate is to contribute to the removal of US$ 5.4billion in expenditure from Eskom's balance sheet and assist in returning the utility to profitability.
  • Advisor to Eskom, forming part of a larger multi-disciplinary team in the due diligence on the effect the unbundling of the various business units of Eskom pursuant to the establishment of an Independent System and Market Operator in South Africa.
  • Appointed as lead legal advisor to the Southern African Power Pool in its feasibility study regarding the interconnection of the Southern and the Eastern African Power Pools. This instruction comprises an analysis of the legal and regulatory frameworks that can enable bilateral and competitive trading between the power pools.
  • Lead legal advisor to GIZ for an energy efficiency in public buildings programme. This programme envisages the creation of a procurement programme by which energy efficiency initiatives in municipal and public buildings will be effected through the procurement of services from energy service companies, thereby empowering small businesses. 
  • Support to the legal team in its role as lead Legal Advisor in a consortium led by Price Waterhouse Coopers to the Msunduzi Municipality’s electricity ring-fencing project. The project involved undertaking a financial, operation and human resources ring-fencing exercise using the EDI Holdings (Pty) Ltd ring-fencing toolkit, as well as the establishment of a separated operating entity.
  • Formed part of the core legal team, appointed amongst a team of three (3) law firms and Accenture advising Eskom in the restructuring of the Electricity Distribution Industry and the formation of Regional Electricity Distributors (RED’s).

 PPP

  • Advisor to GIFA in its review of the Kopanong Precinct PPP feasibility study undertaken by the transaction advisor.
  • Transaction Advisor to the Kenya Urban Road Authority on the 2nd Nyali Bridge PPP Project, entailing the design, finance, construction, operation, maintenance and transfer of a bridge and road project in Mombasa, Kenya.
  • Transaction Advisor to the KZN Department of Works on the KZN Provincial Parliament Precinct Complex PPP, entailing the procurement, construction, development and maintenance of a provincial government office precinct.
  • Transaction Advisor to the KZN Legislature on the KZN Legislature Precinct Complex PPP, entailing the procurement, construction, development and maintenance of an establishment of an office precinct for Legislature.
  • Support to the legal team in its joint mandate as Transaction Advisor to conduct a TAI feasibility study to the procurement of secure care centres in KZN in the Secure Care Centres PPP.
  • Advisor to the Strategic Projects Unit of Ethekwini Municipality in respect of the construction of the Moses Mabida Soccer Stadium and all aspects incidental to the procurement and construction of the stadium.
  • Support to the legal team in its role as legal advisor to the bidding consortium on all the legal regulatory matters and the suitable PPP structure for the KZN Hospitals Soft Facility Management PPP.
  • Support to the legal team in its role as Lead Legal Advisor to the Financial Transaction Advisory Team led by PricewaterhouseCoopers on all the legal regulatory matters and the suitable PPP structure for the Dube Trade Port – King Shaka International Airport PPP.

Infrastructure Development

  • Legal advisor on the Bakomoso Ba Rona Initiative, an agri-industrial multi-stakeholder development aimed to build a globally competitive, inclusive, environmentally sustainable and diversified economy with the people of the West Rand through facilitating large-scale, socio-economic empowerment. This will be achieved through the development of 30,000ha of land for agri-industrial and commercial purposes, in an economically viable way. The founding partners to the programme are Sibanye-Stillwater, GIFA, the FWRDA and the WRDA.
  • Chambers Global 2016 - 2020 ranked Jay in Band 3 in Projects and Infrastructure.
  • The Legal 500 EMEA 2015 - 2020 recommends Jay for Projects and Infrastructure.
  •  IFLR1000 2018 - 2020 recommended Jay as a highly regarded lawyer for energy & infrastructure and for project development. IFLR1000 2017 recommended her as a leading lawyer in this area.
  • IFLR1000 Women Leaders 2020 recognised Jay on their esteemed list of leading female transactional experts.

Publications

  • As part of a United States Department of Commerce's Obama Power Initiative to develop and facilitate power projects, Jay has co-authored three handbooks on Understanding Power Purchase Agreements (2015), Understanding Power Project Finance (2016) and Understanding Power Project Procurement (2017).

Education

  • Enrolled with the Legal Practice Council
  • BProc, University of Natal, Durban
  • LLB, University of Natal, Durban
  • Year of admission as an Attorney: 1998