Parties concerned about the human cost of load-shedding

The UDM and others took power utility Eskom and the government to court over loadshedding recently, in a bid to have certain sectors exempted from load-shedding.

The case does not seek to magically find a way to obtain supply for the whole country, as some have misconstrued it.

For the applicants, it is about “the human cost of load-shedding”. They argue “neither Eskom nor the government ... meaningfully engage with the extreme violations of human rights caused by load-shedding” even though President Cyril Ramaphosa’s government “is responsible for the severe load-shedding.”

Their central argument is that the government is legally obliged to provide an uninterrupted supply of electricity. It has failed to do so, despite plenty of warning amid further failure to implement any plan of action.

They focus heavily on the government because Eskom was, they say, stripped of regulatory authority. “The state assumed responsibility for generation as early as 1998 but “it did not act on that obligation”.

Aside from failing to properly build new stations — Medupi and Kusile were commissioned “late” and are “beset with design flaws ”— the applicants allege the government failed to maintain the existing fleet of stations. The applicants also blame former Eskom CEO André de Ruyter.

The applicants stress that past responses have yielded nothing from either the government or Eskom. In 2014 the National Energy Regulator of SA (Nersa) requested a report from Eskom on the causes of loadshedding. They claim that Eskom explained its position identically to what De Ruyter said under oath recently. They conclude: “If the justifications have not changed, what has been done in the interim?”

The UDM provided evidence of infringements in various sectors. For example, Lufuno Mathivha, head of clinical at Chris Hani Baragwanath outlined how repeated power outages damage hospital equipment, which “prejudices the reliability, safety and efficacy thereof which is life-threatening to patients”.

The party gives details of further infringements in education, water rights, police security and small businesses.

Ramaphosa has said he is not responsible for providing electricity. The applicants view his stance as “a gross misunderstanding of his constitutional role as the head of state”.

The applicants contend that what they seek — obtaining alternative sources of energy, such as generators for hospitals from the department of public enterprises — is not impossible. It requires time and money, the latter of which the applicants argue is not an excuse to do nothing. SA courts have never been beholden to budgetary constraints as a justification for rights violations, especially where the government “had a prior obligation to budget in order to fulfil the rights in question”.

The government, in response, argued that what is being asked of it is unlawful, because different spheres of the government are involved. It said: “The president has no executive authority over municipalities and [he] cannot tell them how and when to perform their functions.”

The relief is too wide and goes beyond the scope of the department of public enterprises, for example. In general, the government argued, “the relief which the applicants seek carries with it the risk of collapsing the electricity supply system, which will prejudice the whole of the Republic”.

The government stressed claims against the president are unfounded. Just because the applicants do not like the outcome of what he has done does not mean he has done nothing. Nor is it a basis for a court to intervene, because this would be infringing on the separation of powers. Any order from the court, said the government, would infringe on continuing work, such as the Energy Action Plan of 2022, by relevant experts and authorities.

The government said it has never denied the adverse effect of load-shedding on lives and education. However, it highlighted how relevant departments have engaged with Eskom to negotiate exemptions where possible. This means the applicants’ concerns are not without merit, but the relief they seek would step on toes.

Though the relief was narrowed over the week of argument, judgment was reserved.

THE STATE ASSUMED RESPONSIBILITY FOR GENERATION ... IN 1998 BUT DID NOT ACT ON THAT OBLIGATION