Taxpayers face an enormous bill if the government has to implement the court ruling ordering it to equip hospitals, clinics, police stations and schools with generators and diesel to protect them from power cuts.
On Friday, the Pretoria high court ordered public enterprises minister Pravin Gordhan to “take all reasonable steps” within 60 days to ensure an uninterrupted supply of electricity at these facilities.
But an appeal against the court order was “very likely”, Presidency spokesperson Vincent Magwenya said yesterday.
“We have significant concerns about the judgment and its impact on the stability of the grid and the negative effect on the fiscus,” he said.
The department of public enterprises said it was studying the ruling and would "consider all legal options and respond in due course". The office of electricity minister Kgosientsho Ramokgopa also said it was "studying the judgment".
Eskom interim spokesperson Daphne Mokwena said its legal team was still going through the judgment.
The ruling comes as concern mounts over electricity supply during the coming winter months, with some energy experts suggesting load-shedding will reach record highs.
In reaching its decision, the court found there had been “repeated breaches by the state” of its constitutional and statutory duties. These breaches “are continuing to infringe on citizens’ rights to health care, security and education”.
Detailing how load-shedding affected these rights, judge Norman Davis — on behalf of a full bench — said basic education was an unqualified right under the constitution.
The consequences of load-shedding were particularly keenly felt in rural and township schools, he said.
“Often, due to no alternate sources of electricity being available (generally, in contrast to private schools), these schools close down for a particular day, thereby not only depriving learners of education but also of their only guaranteed meal of the day.”
Energy expert Alwie Lester, who was a general manager at Eskom for 25 years and is now an adviser to the Western Cape government, said the ruling was impractical.
"I understand the rationale of the judgment but I don’t think it’s practical to implement such an order."
He said the capital costs and running costs could choke implementation of the judgment.
“There are several thousand schools, hospitals and police stations around the country,” said Lester. “There would be the capital costs and the running costs of generators which in my view would run into the millions, nationally. Not sure who pays for this.”
These schools close down for a particular day, thereby not only depriving learners of education but also of their only guaranteed meal of the day
— Judge Norman Davis
Wayne Duvenage, the CEO of the Organisation Undoing Tax Abuse, said the judgment would “not achieve much”.
“That would cost a lot of money,” he said. “It’s not just the generators, it’s the diesel. It’s going to cost the taxpayer a lot because the hospitals and police stations are funded by general taxes. Most of these hospitals already have generators.”
Setting out the history that brought South Africa to its current load-shedding crisis, Davis said the government had been warned, and had accepted, that it would run out of generating capacity in 2008.
In “the 15 years since then, [it] has failed to remedy the situation”. Eskom conceded that load-shedding caused human suffering and had a detrimental effect on human rights, he said.
However, the court made clear it was not requiring that all these facilities - including about 23,000 schools – must be exempted from load-shedding.
Davis said exemptions could only happen where they would not risk the stability of the grid due to being “embedded” in the surrounding network.
Where facilities were embedded, “individual solutions” would need to be devised - “such as the provision of generators or alternative energy supplies”, he said.
There would be the capital costs and the running costs of generators which in my view would into the millions, nationally. Not sure who pays for this
— Energy expert Alwie Lester
Davis said that once a court found there had been a breach of constitutional rights, it was “obliged to act in order to remedy that breach”.
While the government argued it had plans to deal with load-shedding, the plans and their timelines were of an “uncertain nature”.
They would not solve “the urgent needs of the installations mentioned in the applicants’ application”.
In court, the government’s counsel had argued that it did not fall within Gordhan's legal authority to provide alternative energy sources for schools and clinics, which fell under the authority of different spheres of government — and whose departments were not before the court.
According to the court order, Gordhan may act “in conjunction with other organs of state or not”.
The judgment said the fact that the order was sought against the public enterprises minister was “particularly apt” because he had conceded that his department was directly involved in implementing the plan to tackle load-shedding.
But the court said it was couching its order “wide enough to leave it in the hands of the minister as to how he is going to rectify the situation.”
The order gave him the “freedom to enlist other organs of state to assist him” without shackling him or prescribing to him, said the judgment. “Such enlistment would be a simple consequence of the ‘interrelatedness’ of organs of state.”
The court addressed the government’s argument that these interventions were not budgeted for. “On the figures produced by Eskom, when the costs of the alternative electricity supplies are compared to the losses caused by load-shedding and the other intended expenditure envisaged by the state in the plan, those costs pale almost into insignificance,” said Davis.
Also, when the constitution has been infringed, the courts have previously held that the nonprovision for a budget item is no excuse.
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