With no end to the energy crisis in sight, opposition parties, NGOs and South Africa’s biggest trade union are turning to the courts.
The DA this week launched an urgent case to interdict the recent decision by the regulator to hike the electricity tariff, while an assortment of other parties, NGOs and the National Union of Metalworkers of South Africa (Numsa) sent a letter of demand, paving the way for litigation.
The letter of demand, sent by lawyers on behalf of the UDM, IFP, Build One South Africa (Bosa), Numsa and other organisations and individuals, described the debilitating impact of load-shedding on people’s lives. It quoted the government’s own spokespeople on how power cuts were crippling the government’s ability to provide crucial services.
The state has “failed to responsibly manage the grid, resulting in material breaches of ... constitutional rights”, said the letter. These included the right to basic education, the right to life and access to health care, with “many public hospitals [losing] the ability to provide proper health-care services”. The right of access to water and basic sanitation was affected as load-shedding played havoc with sewerage and water systems, and the right of access to food was also at risk due to the problems faced by farmers.
Eskom was an organ of state, said the letter. It may not unilaterally reduce the bulk electricity it supplies. South Africans “have a right to power or an alternative source of power”, and Eskom was created to give effect to that right.
The letter demanded undertakings from public enterprises minister Pravin Gordhan and Eskom by Friday January 20. These included an undertaking to provide that “load-shedding will stop with immediate effect or, if not, a full explanation of why the government is unable to stop load-shedding”. Alternatively, it demands an undertaking to provide a “specific timetable as to when load-shedding would end” and a mechanism through which the state would “make reasonable disclosure to the public” on the challenges that were driving the energy crisis and the solutions implemented.
By Friday no undertakings had been made. Instead, a letter from the state attorney on behalf of Gordhan said the minister had not had enough time to respond comprehensively. “You shall receive our client’s response when it is reasonably possible to do so. Our client understands the urgency of the issues raised in your letter and will be attending to same with the utmost due regard.”
The group said in its demand letter it would launch its court case tomorrow if the undertakings were not provided.
However, there are limits to what courts may do, particularly where the constitutional rights in question are socioeconomic rights. The duty of the government here is to take reasonable measures within its available resources to achieve the progressive realisation of the rights. The constitution recognises that the state can’t do everything at once. But it must act rationally and reasonably with what it has, and it must move forwards.
This is why the DA’s court papers repeatedly stated that the latest tariff increase was a “retrogressive” step and why the letter of demand said “the state is not taking the reasonable measures required of it”.
The state has failed to responsibly manage the grid, resulting in material breaches of constitutional rights
— Letter of demand to court
The DA’s case is in two parts: it is seeking an interim interdict to freeze the decision of the National Energy Regulator of South Africa (Nersa) to approve a tariff increase, which the DA said would mean a 30% increase over the next two years.
The interdict would stay in place until the courts had decided part B of the case, in which the DA would ask the court to permanently set aside the increase as unconstitutional and unlawful. Part A is not seeking to temporarily suspend load-shedding, said DA leader John Steenhuisen in court papers.
In his affidavit, Steenhuisen said Nersa had previously required Eskom to subsidise the price of electricity by imposing below-cost tariffs. Now, all customers — “mining companies and indigent persons alike” — were going to be required to pay the 30% increase, he said.
“Nersa has abandoned its general subsidy policy without considering or taking steps to ensure that those reliant on the general subsidy can continue to access electricity,” said Steenhuisen. The decision was a “retrogressive step”. It was taken irrationally without considering the impact on vulnerable persons, he said.
He said it was also irrational to raise tariffs for a financially defunct state entity. “Nersa would effectively license sucking customers’ money into a black hole.” Eskom faces inevitable financial ruin, said Steenhuisen, and its debt of more than R396.3bn cannot be addressed through revenues and tariffs aimed at covering its costs, he said.
The process followed by Nersa was also flawed, said Steenhuisen, with the regulator not taking into account relevant information, such as Eskom’s annual financial statements for 2021/2022, and Eskom’s application “omitting crucial data”.
In part B the DA wants much more from the courts. It has asked the court to declare unlawful — and set aside — the “ongoing decisions” to implement load-shedding. It wants the court to declare that the government’s response to the energy crisis breaches a number of fundamental human rights.
It will also ask for an order that the government must file with the court a report setting out its plan to avert the energy crisis — “including short-, medium-, and long-term steps”. It has asked the court to hear part B in May.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.