Opposition parties are not backing down in their court case on load-shedding despite warnings from Eskom that the orders they seek could lead to a grid meltdown.
The government and Eskom “created the load-shedding mess … and they must fix it”, said UDM leader Bantu Holomisa in court papers filed this week.
Their expert Ted Blom said Eskom was exaggerating when it claimed that exempting institutions such as hospitals, schools and small businesses from planned power outages would defeat the purpose of load-shedding.
“This is an exaggerated and dishonest allegation,” he said.
Holomisa and Blom were replying to court papers from Eskom and President Cyril Ramaphosa on behalf of the UDM, other opposition parties, the National Union of Metalworkers of SA, NGOs and individuals.
They have asked the Pretoria high court to order that schools, health facilities, police stations, small and micro businesses that deal in perishable goods, electronic communication networks and water provision facilities be exempted from load-shedding or alternatively be provided with other sources of energy such as generators or solar panels.
In Eskom’s court papers, former CEO André de Ruyter had said the institutions the applicants wanted exempted from load-shedding were mostly “embedded” in distribution networks which include other customers.
Excluding them would mean excluding the other customers on the same distribution lines. “Given the very large number of institutions and facilities the applicants seek to protect … there would be very little load left to shed,” De Ruyter said.
This defeated the purpose of load-shedding and “presents a manifest risk of grid collapse or blackout”. The only way to achieve it would be to reconfigure the grid, but this would take longer than the plan Eskom already had in place to address load-shedding, said De Ruyter.
Blom said that while De Ruyter had estimated it would cost the power utility R350m to exempt just public hospitals from load-shedding, “most of Eskom’s quoted stats can be divided/multiplied, depending on the context, by a factor of around four”.
“So if Eskom quotes a cost of R350m to reconfigure the grid, it would probably cost an alternatively sourced provider around R90m and when Eskom says it will take four years to effect, it can probably be achieved in under one year,” said Blom.
Holomisa said the government and Eskom could not “shrug their shoulders” over load-shedding.
“They created the load-shedding mess, in breach of their constitutional and statutory duties, and they must fix it. They must do so urgently,” he said. They cannot “hide behind the grid”.
Holomisa said it was “misguided in law” for Ramaphosa to deny the national government’s legal and constitutional responsibility to provide electricity.
The government did not only fail to make electricity available, it took away existing access to electricity
— UDM leader Bantu Holomisa
Ramaphosa had said in his affidavit that the duty to provide electricity fell under local government. The municipalities should have been brought to court, but were not, he said.
Holomisa said insufficient generation capacity was the root cause of load-shedding, according De Ruyter, but “municipalities have no legal or constitutional role in the generation of electricity … this is purely a function of national government”.
Transmission of electricity was also a function of national government, and while municipalities may play a role in its distribution “at substation level”, this was only at the end point of the value chain, he said.
The National Energy Act placed a duty on the minister to adopt measures that provide for access to energy for all South Africans. “Here the government did not only fail to make electricity available, it took away existing access to electricity. Such retrogression is not compatible with the law,” Holomisa said.
The case was about the human rights of citizens, which the president had a duty to protect and promote. “It is irrefutable that without electricity the rights that are contained in the Bill of Rights cannot be achieved. That means that the state must ensure electricity is available to ensure the enjoyment of these rights.”
ActionSA delivered its own replying affidavit and concentrated on the recently published regulations under the national state of disaster. ActionSA’s Alistair Shaw said the regulations largely mirrored what the applicants were seeking, which made it clear that the orders sought are “neither unachievable nor impossible”.
But the court’s intervention was still necessary because the regulations only provided that the cabinet and third parties should co-operate to the best of their abilities to procure exemptions within the available budget. “This is of cold comfort and hence the relief sought is imperative,” said Shaw.
The regulations allow the government to make directions that grant exemptions from load-shedding to essential infrastructure “where technically feasible”.
At a press briefing on Friday, the government explained its immediate plans under the regulations. For now, exemptions are limited to health infrastructure.
Health minister Joe Phaahla said a team had identified 213 “absolutely essential” health institutions for exemptions.
Of these, 76 were already exempted but the others were embedded in the grid and needed new lines built. Of those remaining, 46 were directly supplied by Eskom and building new lines for them would cost just over R300m.
For the remaining 91 hospitals, supplied by municipalities, building new lines was still being costed. The government was working to speed up exempting these facilities, he said.
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