When opposition parties asked courts to declare that the government had breached constitutional rights because of load-shedding, it was more about scoring political points than ending the energy crisis, said President Cyril Ramaphosa in court papers this week.
Ramaphosa was responding to two cases that will be heard together, one brought by the DA and the other by the UDM, other opposition parties, trade unions and NGOs.
Part A of the UDM case was about the urgent supply of power to schools, hospitals and police stations so that they would not be affected by load-shedding. In it, the UDM and others won a significant victory when the Pretoria high court ordered the government within 60 days to take reasonable steps to ensure these institutions be supplied with uninterrupted power. But the government has applied to appeal it — putting everything on hold until an appeal has been decided.
In Part B of the case, the UDM applicants and the DA have asked for a number of different orders. These include declarations from the court that the government has breached constitutional rights through load-shedding and by failing to prevent the energy crisis, and that Ramaphosa has failed to respect, promote and fulfil the bill of rights as he is required to do under the constitution.
They have also asked the court to order the government to do specific things. One of these, from the UDM applicants, is that certain power stations — Komati, Camden, Hendrina and Grootvlei — be recommissioned and brought back into full operation within 90 days of the court order.
In his answering affidavit, filed on Thursday, Ramaphosa said the declaratory orders sought were “simplistic and unnecessary”.
“It resonates more with an intent to score political points rather than seeking relief that is effective, appropriate, just and equitable,” he said.
He said the UDM’s affidavit made “sweeping allegations against government without identifying precisely who and how specific officials have conducted themselves in a manner that violates the constitution”.
Ramaphosa said he did not dispute that the government had an obligation to respect, fulfil and promote the rights in the bill of rights.
“But government operates in a context of multiple role players with individual responsibilities, the private sector, corruption that takes time to unravel, criminal activity, budget restraints and insufficient human resources ... The duty of government is to act reasonably in the face of these challenges, and not to be held to a standard that is unrealistic,” he said.
Ramaphosa set out the causes of load-shedding over six pages in his affidavit, adding that these were intertwined and happened over decades. Some factors, such as criminal activity, could not be predicted.
The government did not shy away from acknowledging that there were failings on its part, he said. But whether government could have prevented them all required “backtracking over decades to unravel each potential contributing cause and then determining whether there was unreasonable decision-making by parts of government”.
The declaratory orders sought by the opposition parties would not remedy the energy crisis, he said. “The value of the declarator ... is to score a political point.”
Ramaphosa said the government acknowledged the difficulties people faced when their access to electricity was limited. But load-shedding was the only way “of protecting the grid from collapse, which would have an even graver impact on constitutional rights, the economy and society”.
The president also contested the case made by the UDM applicants for the reopening of certain power plants. He disputed their claim that he had accepted “an amount of $8.5bn in loans from the US and other European countries with the condition that South Africa will close down its power stations”.
Extending the lifespan of old coal-fired power stations, despite those stations having reached the end of their operating life and their deteriorating performance, and despite South Africa’s climate commitments, is not a realistic option
— President Cyril Ramaphosa
The UDM was referring here to the $8.5bn (about R161bn) pledged at COP26 by the US and European countries for South Africa’s just energy transition programme.
Ramaphosa said the decommissioning of Komati, Camden, Hendrina and Grootvlei was guided by a 2019 Integrated Resource Plan, “which is the result of scientific modelling ... and the time frame for each power station to be decommissioned is based on the end of its design life”.
The decommissioning of old plants was already part of government policy; it was not a condition of “any purported loans”, he said.
Ramaphosa said South Africa had made commitments to reduce its carbon emissions under international climate agreements.
“Extending the lifespan of old coal-fired power stations, despite those stations having reached the end of their operating life and their deteriorating performance, and despite South Africa’s climate commitments, is not a realistic option,” he said.
It was certainly not a “silver bullet” to address load-shedding — “as inferred by the applicants”, said Ramaphosa.
The UDM applicants and the DA will still be able to respond to Ramaphosa in their own court papers before the case is heard in September.
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