Eskom, government face constitutional challenge on load-shedding

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Nineteen interest groups have filed a court challenge to force the state to mitigate the load-shedding crisis and to have it declared in breach of the Constitution for failing to ensure the sustained supply of electricity.

The application to the Pretoria high court is in two parts. 

The parties seek urgent relief in the form of certain sectors being exempted from ongoing load-shedding to ensure “at the least the continued functionality of basic services”, including health care, education, water and sanitation. 

This means, they said, that the government must be interdicted to ensure that public schools and hospitals, police stations, water plants and all infrastructure necessary to sustain cell phone and internet services be guaranteed constant power supply. 

In part A, the parties also ask that the court order the government to table a plan, within seven days, to explain the steps it would take to ensure that uninterrupted power supply is restored, including the necessary maintenance of Eskom’s plants to achieve this, and that the power utility be compelled to give consumers fair warning of pending cuts.

In Part B, they seek for a declaratory order that President Cyril Ramaphosa, Eskom, Public Enterprises Minister Pravin Gordhan, Mineral Resources and Energy Minister Gwede Mantashe and the state as a whole have contravened their obligation to protect, respect and promote the rights enshrined in the Bill of Rights. 

Mantashe must also be declared in breach of the constitutional duty imposed on him by section 34 of the Electricity Regulation Act for failing to ensure adequate generation capacity.

Access to electricity is vital for the enjoyment of 10 fundamental rights, from the right to life to the right to access to food, the parties said, and the state and power utility’s failure to ensure sustained supply has violated each of these.

“There is simply no telling when load-shedding will finally end. As such, its devastating consequences and the growing humanitarian crisis will only get worse,” they added.

This was confirmed by Eskom’s announcement on Sunday that load-shedding, of various stages, will be a permanent occurrence for the next two years, they added.

As part of the urgent relief sought in the first part of the application, the parties are asking that Eskom, Gordhan and Mantashe be given seven days to submit the record of all decisions made with regard to sustainable energy supply, plus all agreements entered into with independent power producers and the dates when these would see additional capacity added to the grid.

Ramaphosa must be interdicted, the applicants added, to give them copies of the government’s plan to alleviate the effect of the electricity crisis on health, education and employment within seven days, along with the government’s plan to effect a just transition from coal-powered to renewable energy.

He must also provide them with the agreements the government has signed with other countries in this regard and to make plain the financial implications of these. 

Eskom must be compelled to submit a report within 10 days of the court ruling, setting out its plans for restoring reliably electricity supply, the parties asked, and to update this report every 15 days until the power crisis is solved.

The challenge is brought by opposition parties, trade unions, nonprofit organisations and a handful of individuals. 

They include the United Democratic Movement (UDM), Build One South Africa, the Inkatha Freedom Party, the National Union of Metalworkers of South Africa, the African Council of Hawkers and Informal Business, the Soweto Action Committee, the Mustard Seed Foundation, a nonprofit organisation that provides extra lessons and meals to poor students, the White River Neighbourhood Watch and political analyst Lukhona Mnguni.

In a founding affidavit, UDM leader Bantu Holomisa argued that it was eminently possible to “ensure that the lights stay on to ensure at least the continued functionality of basic services” but that Eskom has chosen not to take this approach.

“Its electricity rationing arising from load-shedding is a blunt instrument which hits everyone — the young and old, the sick and the healthy and the rich and poor alike. But this is not what our constitution envisages. Even at a time of crisis, the Bill of Rights continues to bind the state,” he said.

“It is necessary that the needs of the most vulnerable in society should be catered for and the interim remedy is designed with that object in mind.”

In this part of the application, the parties are also asking the court to compel Gordhan and Mantashe to comply with the provisions of the Electricity Regulation Act and to disclose their plans to resolve the energy crisis.

The founding affidavit dwells on the confusion regarding the cause of load-shedding and the state’s plans to stop it.

“This application is also necessary because of the disparate, and in some cases, contradictory reasons furnished by different state departments in explaining the catastrophe that is load-shedding.”

These divergences meant the public was “kept in the dark as to how the management of the grid has reached a near state of collapse without consequence or accountability”, the parties said.

What was clear, they added, was that Eskom has been grossly mismanaged to the point where it is unable to perform its core function. But the confusion as to how it came to this, in itself violated the Constitution in that it prescribed that the government must be accountable, transparent and put citizens first.

“The public does not know the precise reasons why there is load-shedding. The reasons given by the government has shifted over time.”

Holomisa argued that the threat load-shedding posed to the survival of hospital patients alone rendered the application urgent. 

This urgency was underpinned by the fact that Eskom imposed load-shedding indiscriminately, and that Health Minister Joe Phaahla has conceded that back-up facilities at the 72 public hospitals that are meant to exempt from planned outages could not provide back-up power for prolonged periods.

Hence there is no guarantee that they will benefit from uninterrupted supply of electricity on which, in particular, the proper treatment of ill babies depends.

“There is no greater cause for urgency than the protection of life. Substantial redress cannot be obtained in the ordinary cause as more lives will be lost with every passing week,” Holomisa said. “The sooner the interim relief is granted and implemented, the more lives can be saved.”

Food security too is cause to grant urgent relief, the affidavit added, so that the state can be compelled by the court to at the least explain how load-shedding will be managed in a manner that will prevent the devastation of the agriculture sector and the country’s food supply.

The parties are asking that their application be heard on 28 February or soon thereafter and that the respondents, which include the National Energy Regulator of South Africa (Nersa), file answering affidavits by 13 February, if they intend opposing the application.

In part B of their court bid, they ask that Nersa’s decision to allow Eskom to impose tariff increases to recover R318 billion in the coming financial year and R352 billion the next, be reviewed and set aside.

Ramaphosa said on Sunday that he had asked that the tariff increases be placed on hold.