Was Makhanda’s unfair load-shedding schedule due to Makana Municipality’s lack of compliance?

A note from the editor

Last week, Grocott’s Mail ran a story about Makhanda’s unequal load shedding schedule. We reported that the source of Grahamstown 1’s relative good fortune stemmed from the Waainek wind energy farm. A senior officer of EDF Renewables explained that the electricity generated by the farm connects to the Grahamstown 1 substation, which connects to the Eskom grid via the Sugarloaf substation. A local scientist explained that the power flowed through the Grahamstown 1 grid because it was the most reliable and conducive channel for distributing the electricity produced by the wind farm.

However, there were times during the National Arts Festival when Grahamstown 2 was occasionally also reprieved during scheduled load sheds – again, thanks to our local renewable energy source.

This implied that it was technically possible to supply Grahamstown 2 with the bonus wind power. Why was the power not distributed more equally between Grahamstown 1, Grahamstown 2 and Rhini during our intense bout of load shedding?

Grocott’s has been attempting to get a comment on this issue from the Makana Municipality director in charge of electricity, Asanda Gigana, without success. However, she has agreed to an interview next week.

Meanwhile, we received a letter asking if Makana Municipality was compliant with the Occupational Health and Safety Act. The writer asks:

• How were operations in switching determined and carried out to ensure a fairly distributed load shedding programme?

• Are Makana’s electrical substations, electrical switching stations, electrical distribution networks, and transformers installed correctly and properly maintained and operated?

• Does Makana have a certificated engineer in its employ who is deemed competent to carry out the necessary supervision of the operations and maintenance of this machinery?

• Is Makana Municipality’s electrical 11 kV switchgear in such a state that it is hazardous to carry out operations on the 11 kV network preventing a fair and distributed loadshedding programme? And could this be the real reason for unequal load-shedding in our city?

We thank the letter writer for these questions, await answers from Asanda Gigana and will report back to you as soon as we have them.

Sincerely,

Rod Amner

An open letter to Makana residents

With so much being written on social media about the load-shedding procedures, the failings of local municipal infrastructure and the lack of proper operations and maintenance within the Makana Municipality, I would like to bring the following to the attention of Makana residents from a legal perspective.

Section 16.1 of the Occupational Health and Safety Act 85 of 1993 (OHS Act) states the chief executive officer, in terms of the OHS Act, shall ensure the requirements of the OHS Act are complied with on behalf of the employer.

Now one may think a municipality is not a registered company as such. This is true; however, the municipality is an employer, and Section 16.4 of the OHS Act states, “The head of the department of any department of State shall be deemed to be the chief executive officer of that department.”

Furthermore, Section 47 of the OHS Act clearly states, “This Act shall bind the State.” This means a head of a department of any department of State (in this case, the municipal manager of Makana Municipality) is responsible for carrying out and abiding by the regulations as stipulated in the OHS Act.

Failure to do so may result in the prosecution of the head of the department and, if found guilty of not complying with a specific regulation, be punishable by law.

All municipalities make use of machinery in some or other way. The OHS Acts definition of ‘machinery’ means “any article or combination of articles assembled, arranged or connected and which is used or intended to be used for converting any form of energy to performing work, or which is used or intended to be used, whether incidental thereto or not, for developing, receiving, storing, containing, confining, transforming, transmitting, transferring, or controlling any form of energy”. The municipal electrical substations, electrical switching stations, electrical distribution networks, transformers, raw water pump stations, clear (potable) water pump stations, sewage treatment works etc., all fall under this domain.

Section 2 of the General Machinery Regulations (GMR) of the OHS Act states a competent person shall be appointed in the following circumstances:

a) When the sum of generated power by machinery is 3 000 kW or greater, a certificated engineer (also commonly referred to as a government ticketed engineer) shall be appointed as the competent person (GMR2.1) in a full-time capacity in respect of all premises in which the machinery is used (OHS Act; GMR; Section 2; paragraphs (1); (3) and (4)(a)(ii)).

b) When the premises are used solely for the distribution of electricity and the demand is 10 000 kVA, or greater, a certificated engineer shall be appointed as the competent person (GMR2.1) in a fulltime capacity in respect of all premises in which the machinery is used (OHS Act; GMR; Section 2; paragraphs (1); (3) and (5)(c)).

Makana Local Municipality exceeds the 10 000 kVA demand. It, therefore, is required in terms of the law to have a certificated engineer (i.e. a government ticketed engineer) in their employ in a full-time capacity.

Should the head of department (municipal manager) fail to comply with this regulation and be found guilty of an offence, the municipal manager may be liable to a fine not exceeding R1 000 or to imprisonment for a maximum of 6 months (OHS Act;

GMR; Section 10). Furthermore, in terms of Section 8.2 (i) of the OHS Act, the Makana municipal manager shall ensure that work is performed under the general supervision of a person trained to understand the hazards associated with it and to have the authority to ensure that preventive measures taken by the employer are implemented.

By default, a certificated engineer has passed a board exam and, in terms of the Department of Labour, is deemed competent to carry out the necessary supervision of operations and maintenance of machinery on the premises (local municipality) to which he has been (mandatory) registered with the Department of Labour as the incumbent competent person. Should the head of department (municipal manager) fail to comply with this regulation, be found guilty of such offence and on conviction, the municipal manager shall be liable to a fine not exceeding R50 000 or to imprisonment for a maximum of 1 year or to both fine and imprisonment (OHS Act; Section 38.1).

The above means the Makana Municipality, by law, is obligated to employ a certificated engineer in a full-time capacity who will be responsible for ensuring maintenance and operations are carried out on the Makana Municipality’s machinery.

In terms of Section 8.2 (i) of the OHS Act, the Makana Local Municipality’s head of department (municipal manager), as well as the incumbent certificated engineer, shall ensure that work is performed under the general supervision of a person(s) trained to understand the hazards associated with it and to have the authority to ensure that preventive measures taken by the employer are implemented.

Should the municipal manager and incumbent certified engineer fail to comply with this regulation, be found guilty of such offence and on conviction, both parties could be liable to a fine not exceeding R50 000 or to imprisonment for a maximum of 1 year or to both fine and imprisonment (OHS Act; Section 38.1). Furthermore, in terms of Section 4 of the OHS Act GMR, only persons authorised or deemed competent may operate machinery. A person who fails to comply with this regulation shall be guilty of an offence and be liable to a fine not exceeding R1 000 or to imprisonment for a maximum of 6 months (OHS Act; GMR; Section 10). These laws make it mandatory for the Makana Municipality to employ properly trained and qualified artisans to carry out maintenance and operations on municipal machinery.

Section 3.1 (a) of the OHS Act GMR makes note that the employer or user of machinery (Makana Municipality) shall “ensure all machinery used by him is suitable for the purpose for which it is used, and that it is installed operated and maintained in such a manner as to prevent the exposure of persons to hazards or potentially hazardous conditions or circumstances.

A person (municipal manager, certificated engineer and persons authorised) who fails to comply with this regulation shall be guilty of an offence and be liable to a fine not exceeding R1 000 or to imprisonment for a maximum of 6 months (OHS Act;

GMR; Section 10). Makana Municipality is therefore legally bound to ensure its machinery is installed correctly, maintained and operated. This would include municipal electrical substations, electrical switching stations, electrical distribution networks, transformers, raw water pump stations, clear (potable) water pump stations, sewage treatment works etc.

From a load shedding perspective, questions should be directed to the Makana Municipality’s GMR 2.1 for clarity as to how operations in switching have been determined and where they are precisely being carried out to ensure a fair and distributed load shedding program is being initiated. Suppose Makana Municipality does not have such a person in their employ. In that case, Makana is non-compliant in terms of the law and should be reported to the inspectorate of the Department of Labour.

If Makana Municipality’s electrical 11 kV switchgear (machinery) is in such a state that it is hazardous to carry out operations on the 11 kV network preventing a fair and distributed load-shedding programme, then Makana Local Municipality has not properly maintained its machinery, is non-compliant in terms of the law and should be reported to the inspectorate of the Department of Labour.

The Department of Labour would then need to take action against the municipal manager for non-compliance with the OHS Act and its regulations. If the Department of Labour fails to act on the report(s), then this matter should be taken up with the Public Protector’s office as to the reasons the Department of Labour has failed to act following the law.

The maintenance necessary on the electrical infrastructure would hold the same for the raw water, potable water and wastewater services.

Thank you,

Anton Nel