A group of 19 activist and public interest groups, led by the United Democratic Movement, have instituted an urgent application in the Pretoria High Court against Eskom and several State entities, citing the ongoing Load Shedding crisis.
The application seeks a two-part relief, with the first being an urgent order exempting certain sectors from the ongoing load-shedding schedule to ensure, at the very least, the continued functionality of basic services. These sectors include healthcare, education and water and sanitation. The order would require the government to ensure that public schools, hospitals, police stations and other essential service providers are guaranteed an uninterrupted power supply.
The second part seeks an order declaring that Eskom, Minister Gwede Mantashe, Minister Pavin Gordhan, President Cyril Ramaphosa, and “the state as a whole” have violated their constitutional obligation to protect the basic rights of South African citizens. The Applicants have cited section 34 of the Electricity Regulation Act as the basis for this claim, which requires local government to ensure adequate generation capacity, and linked this to the enjoyment of fundamental constitutional rights, from the right to life to the right to access to food.
Should the interdict be granted Ramaphosa will be compelled to provide copies of the government’s plan to alleviate the effect of the electricity crisis on health, education and employment within seven days, along with the government’s plan to effect a just transition from coal-powered to renewable energy. Along with these plans, Eskom will be compelled to submit a report within 10 days of the court ruling, setting out its plans for restoring reliable electricity supply, and to update this report every 15 days until the power crisis is solved.
In a controversial response to the application, Ramaphosa filed papers with the court in which he argued that the relief sought in part 2 of the application could not be sought against him in his capacity as president. In his papers Ramaphosa argued that the requirement to ensure adequate generation capacity is a competence of the local government, being the municipalities. In his papers, Ramphosa goes on to state that “[i]t is now accepted that municipalities are in law required to provide water and electricity to their people as a matter of public duty” and “[t]his duty does not lie with the president or any of the national departments cited herein as respondents.”. The president has argued that the Applicants have failed to set out a case against the correct sphere of government, going on to state that “[a]ccordingly, if municipalities do not for one reason or another supply electricity to their people, the constitution does not say that the president must go down to local government and do it”.
Given the severe backlash to his statements, which seem to imply that the President seeks to shift the blame for loadshedding to local government, the President was forced to issue a public statement addressing the issue. In the statement the President claims his words had been misrepresented, and that they do not “diminish the commitment of President Ramaphosa and this government to end load shedding as a matter of urgency”. The President sought to clarify that the purpose of his court answer was simply to clarify the constitutional powers and responsibilities of the President and other government bodies.
The President has further cautioned the court against mandating action on the part of government that would require it to comply with energy generation and supply measures beyond the scope of its ability to safely regulate such issues. It therefore remains to be seen whether the court will find it within its jurisdiction to grant the relief sought by the Applicants.
The first part of the application will be heard by the Pretoria high court on 20 March 2023, with a provisional date for part two set down for 23 May 2023.
