Power ruling upsets state
• Gordhan to appeal against court ruling on exemptions to key services
The government is to file an urgent appeal against a recent court order compelling it to exempt hospitals, schools and police stations from loadshedding as this poses a risk to
“current efforts to stabilise the national grid”.
The interim order handed down by the high court in Pretoria on Friday, and which must be implemented within 60 days, states the public enterprises minister should take reasonable steps to ensure “sufficient supply or generation of electricity to prevent any interruption of supply as a result of load-shedding” to these facilities.
The judgment follows an application brought by 19 organisations, including opposition parties, nongovernmental organisations and individuals.
Public enterprises minister Pravin Gordhan, who expressed
“serious concerns” about the judgment, confirmed his department would “lodge an appeal to set aside the ruling and allow for the ongoing efforts to end loadshedding to proceed without putting undue risk on the country’s grid infrastructure.
“While the department respects the independence of the courts, in this case the department believes that the judgment would have unintended consequences and undermine the very efforts to balance the protection of the rights that were ventilated in this case, with the need to stabilise and protect our grid infrastructure.”
The view of the department was echoed by the presidency.
“We have significant concerns about the judgment and its impact on the stability of the grid and the negative effect on the fiscus. In that regard, an appeal is very likely,” the spokesperson for the presidency, Vincent Magwenya, said in response to questions from Business Day on Monday.
UDM leader Bantu Holomisa, whose organisation was party to the successful litigation to force the government to keep the lights on, believes that appealing against the court ruling would send the wrong signal that the government does not care about citizens ’ rights being infringed.
Holomisa said the government had already been given an opportunity to prove its claims and had failed to do so. He said the government had been “negligent ” for too long. “The truth of the matter is that a government cannot fold arms and hide behind a technicality.”
Lufuno Rudo Mathivha, head of the clinical department at Chris Hani Baragwanath Hospital, told the court in her affidavit: “Repeated power surges cause damage to sensitive and vital equipment in hospitals ... [this] is life-threatening to patients.”
Load-shedding leads to the failure of systems in intensive care units, which leads to improper treatment. In addition, neonatal departments require “very specific and accurate temperature regulation” because of newborns ’ sensitivities.
She detailed life-threatening situations in home-based recovery, due to the need for machines, such as fridges and ventilators, to remain consistently powered.
“I recently had a devastating experience where I thought my asthmatic grandson would die,” she said, “[ because] the home nebuliser was not functioning as it is reliant on electricity to run.”
She concluded that there were probably numerous instances where the cause of patients ’ deaths “may have been actually due to load-shedding”.
Judge Norman Davis, writing for a full bench of the high court in Pretoria, agreed. “[ There is a legal] obligation not to interfere with [the right to life], which is what occurs when loadshedding is implemented.”
The constitution also guarantees the right to basic education until the end of matric. The applicants noted load-shedding had an effect, in particular, on township schools, while schools with more resources were able to still function. In addition to education, the applicants noted schools were often the place where children obtained a meal.
Davis held: “Iniquities created by our country’s past injustices are, by the simple act of loadshedding, being perpetuated against a vulnerable segment of society.”
The applicants argued that current “crime statistics” mean
UDM LEADER BANTU HOLOMISA BELIEVES THAT APPEALING AGAINST THE COURT RULING WOULD SEND THE WRONG SIGNAL
that urgent steps must be taken to provide power to police stations. The rights to freedom and security are infringed every time police stations are shut down, they said.
Davis agreed, writing: “When police stations are shut down ... due to a lack of electricity ... this obligation is not fulfilled.” Davis noted the utility’s past success in providing access to electricity for households across the country and how it had subsequently failed to heed warnings by experts to take the necessary steps to prevent loadshedding.
“Eskom had significantly lost its skills and capacity to build large-scale power stations.” As a result of bad decisions, new power stations, such as Kusile, “to this day [are] not yet fully commissioned ”.
Gordhan had argued in the court that he had no control over day-to-day activities at Eskom and pointed to mineral resources & energy minister Gwede Mantashe.
President Cyril Ramaphosa told the court that “none of the government respondents have a constitutional responsibility to supply electricity to the people of the republic”.
CONSEQUENCES
Davis, however, disagreed. “The consequences of policy decisions resulted in the current need ... to implement [loadshedding].” The court found “there had been repeated breaches by the state of its constitutional and statutory duties and that these breaches are continuing to infringe on citizens’ rights.”
The government argued that there was already a plan to cater to the sectors mentioned, so the court ’ s ruling would be an infringement of the separation of powers.
Davis disagreed, noting that there was no certainty in the road map the government provided to the court, nor did it adequately deal with the urgency of the situation. Davis noted that if certain sectors could not be excluded without threatening the entire grid, generators should be acquired.
The final review application will be argued later this year.