Government mulls ruling banning load-shedding at public institutions
• High court finds power cuts are a result of the failure of Eskom and the state, and that it infringes on the basic rights of South Africans
The government says it will begin to study the landmark judgment ordering electricity minister Kgosientsho Ramokgopa to “take all reasonable steps ”— by no later than January 31 — to ensure public hospitals, clinics, schools and police stations are not affected by loadshedding in the new week, the state attorney’s office confirmed on Sunday,
Meanwhile, President Cyril Ramaphosa said at the weekend on the sidelines of the COP28 Summit in Dubai that his executive will take “all the necessary steps” to ensure hospitals and schools are “less” affected by blackouts.
“We did say in the court papers that while that is our strategic objective, the issue of energy is affecting all of society and there will be moments when we have load-shedding that affects certain portions of society negatively, but we are going to take steps to make sure that hospitals, schools and police stations are less adversely affected,” Ramaphosa said.
The high court in Pretoria found on Friday that power cuts are a result of the failure of Eskom and the government, and that it infringes on the basic rights of South Africans.
Before the judgment, Ramokgopa expressed confidence that the Chinese government’s donated generators will help ensure an uninterrupted power supply at healthcare facilities and schools while loadshedding continues.
On Thursday, Ramokgopa received R170m worth of power equipment, including petrol and diesel generators, at the Eskom warehouse in Howick, KwaZulu-Natal.
The 450 generators were delivered three months after the Chinese government pledged to donate the equipment to SA when Chinese President Xi Jinping visited the country for bilateral talks in August.
“This is the smallest capacity generator we are receiving. We will receive much bigger ones that will give us 159kW. They are big enough to power hospitals and correctional services. This consignment will come through by February next year,” Ramokgopa said.
In a unanimous judgment by three judges, judge Norman Davis said the court order was “just and equitable”, once the
court had determined that loadshedding breached several constitutional rights.
A similar order was granted by the same bench in May, but it was directed at the minister for public enterprises. The minister appealed against the order.
Davis said in the judgment that the minister’s grounds of appeal had been that “the order was alleged to be vague, that it was impossible to implement as the minister did not have the power to generate and supply electricity, that the order was not competent in law for the same reason, and that the order violated the separation of powers”.
The effect of the application for leave to appeal was to put the May order on hold. But it fell away in September because the applicants — the UDM, other political parties, trade unions and individuals — ended up withdrawing the second half of their case, or part B.
This meant that part A, under which the May order was given, lapsed. The application for leave to appeal then became “moot ”— there was no need for it any more. In a complicated turn of events — because three different cases on load-shedding were being heard together — the DA’s and the SA Local Government Association’s (Salga) cases, which overlapped with the UDM’s case, remained and were argued before the same judges.
In the judgment, Davis said the government conceded that people’s rights had been breached. Though they had argued that the court should not declare this to be so, “considerations of public policy, justice and convenience and the continued existence of an infringement of constitutional rights” made it appropriate to grant a declaratory order. This left the “vexing question” of what the appropriate relief would be once such a declaration was made, he said.
He said the court was “mindful” of the separation of powers and that orders that implicate the budgets of organs of state should be exercised sparingly. But “nowhere has it been indicated in the opposing papers ... that the relief previously granted in part A of the UDM’s application would cripple the state”, he said. It was also clear that the government’s plans all envisaged “some relief at some future date [only]”.
The appointment of a minister of electricity took care of the minister of public enterprise’s objections in his application for leave to appeal, he said.
“We find no cogent reasons why those orders, albeit slightly modified, dealing with immediate relief cannot and should not be granted. To do so would at least provide relief for learners going into the new school year.”