On 5 May 2023, a full bench of three judges in the High Court of South Africa, Gauteng Division, Pretoria (“the Court”) ordered that the Minister of Public Enterprises (“the Minister”) shall take all reasonable steps, within 60 days from the date of the court order, to ensure that all public health establishments, public schools and the South African public service and police stations are no longer affected by load-shedding.
Loadshedding is the process used by Eskom (South Africa’s electricity provider) to cut off the supply of electricity to alternating areas of the country on a scheduled and rotational basis. The aim is to protect the integrity of the collapsing energy grid. Load-shedding has plagued South Africa for the last 15 years and it only seems to be getting worse over time.
The United Democratic Movement, Inkatha Freedom Party, Action SA and 17 other political and civic organisations launched an urgent application and contended that load-shedding certain government institutions constitutes an infringement of rights to health, security and education. The Court agreed that load-shedding indeed impinged upon these rights and acknowledged how there are dire consequences for healthcare facilities should they not receive an uninterrupted supply of electricity as well as how the consequences of interrupted power supply are particularly felt in rural and township schools.
The question of how exactly this court order will be implemented by Eskom and the Minister remains unanswered. Eskom argued that it would be technically impossible to isolate and exclude some buildings from load shedding given how embedded they are in Eskom’s transmission and distribution networks and further that these institutions share distribution lines with thousands of others. Judge Norman Davis wrote the judgement and stated that individual solutions need to be implemented where exempting certain buildings is not possible, such as the provision of generators or alternate energy supplies.
ActionSA’s head of strategic litigation, Gill Benson, has called this judgment a positive legal victory for South Africans who suffer due to rolling blackouts. “After almost 15 years of load shedding, it is clear that the ANC government lacks the will to resolve the crisis, leaving South Africans in the dark.
It is our belief that without urgent intervention, the government will continue to let the ensuing crisis persist unabated” she said.
President Cyril Ramaphosa, in his affidavit put forward to the Court, stated that “none of the government respondents have a constitutional responsibility to supply electricity to the people of the Republic.” He objected to the relief claimed in the application but accepted that the current need to implement load-shedding was because of the failure to invest in new generating capacity in the 1990s and 2000s and a failure to maintain the plants.
Experts have however argued that the exemption of some institutions from load shedding could result in the collapse of the national grid.
Vincent Magwenya, spokesperson for the presidency, stated that they intend on appealing the decision of the High Court. Meanwhile, the applicants are waiting for the Court’s verdict on Part B of the application, which will be for final relief, seeking a comprehensive review of the actions of the government, the President, Ministers and Eskom and their failure to uphold their constitutional and statutory obligations to ensure a reliable supply of electricity.
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11 May 2023