Eskom’s pleas contradict vow to end power cuts in two years

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The timeframes Eskom has set out in court papers for implementing interventions to alleviate the energy crisis belie the state’s claim that it can end load-shedding in 24 months.

This is being argued by litigants pursuing a constitutional challenge on load-shedding, in their latest papers to the Pretoria high court, which was due to hear their application for an interdict compelling the state to exempt entities that supply essential services from load-shedding on Monday, 20 March.

The group, represented by advocate Tembeka Ngcukaitobi and nominally led by the United Democratic Movement, is also seeking a declaratory order that the president and the government have breached their legal duty to keep the lights on, violating 10 fundamental rights. This part of the application is set to be heard in May.

Eskom has submitted that exempting facilities such as schools, hospitals and police stations was not feasible as they were embedded in the grid in such a way that isolating their supply to keep it constant was impossible. 

Former Eskom CEO Andre de Ruyter said if it was forced to exempt these, the utility would be compelled to continue to supply all the other upstream customers on the distribution line as well. This would then defeat the purpose of load-shedding, which was to protect the grid from collapse and the country from chaos.

But the applicants say this leaves the option of giving key facilities alternative sources of energy, before dismissing Eskom’s stated reasons — in particular the time it would take — as disingenuous.

“The respondents cannot purport to justify their failures in the name of the greater good, nor can they frighten the court with prophecies of doom. None of that is relevant to determining whether alternative energy can be procured,” they say.

Eskom has argued that exceptional measures to keep the lights on at key facilities would cost too much and take as long or longer to implement than its two-year generation recovery plan.

This included reconfiguring the distribution network through direct feeder lines for larger institutions that Eskom directly supplies with electricity, and the roll-out of a network of remote-controllable switches or circuit breakers on both Eskom’s and municipalities’  voltage networks.

“In several instances the respondents contend that other solutions, which could take 24 months to implement, are pointless because by that time, the crisis will be solved,” the applicants said. 

“However, if the plan is not implemented within 24 months, that argument must fall away.”

They pointed out that, according to Eskom, it would take 24 months to generate an additional 6 000 megawatts, 18 to 24 months to plan for an outage in order to conduct maintenance, and three months to complete scheduled maintenance on a coal plant during said outage.

“Unless these timeframes are an exaggeration, this means that Eskom’s generation recovery plan could not be implemented in 24 months.”

If it is true that it will take two years to plan an outage needed to perform three months of maintenance, “it is simply impossible” to implement the plan in respect of a single station within two years, the applicants stressed.

This invalidated both the assurance that the crisis would be over in two years and the reasons for not implementing measures to mitigate it in the interim.

“The government and Eskom’s answering affidavits in this application are riddled with excuses. A thousand pages of them.”

Hence, they continued, that “load-shedding is not an inevitable fact of life, as the respondents have for years conveyed to the public, and now sought to convince this court”.

President Cyril Ramaphosa has argued in court papers that he had no legal duty to end load-shedding because in terms of the Constitution, electricity and gas reticulation is a competence of local government.

But the applicants say a proper reading of the Constitution assigns him overall responsibility to end the violation of 10 fundamental rights as a result of load-shedding.

“The fact that the president says he has no obligations in terms of the Constitution in the face of the humanitarian crisis of load-shedding is thus an unfortunate misreading of the Constitution, and a gross misunderstanding of his constitutional role as the head of state and head of the national executive,” they argue.