President Cyril Ramaphosa seems to have forgotten the ANC’s decision on the ICC taken at Nasrec.(Photo Delwyn Verasamy, M&G)
President Cyril Ramaphosa fails to understand the law when he argues that load-shedding does not point to dereliction of a legal duty on his part or that of national government, as it lies with municipalities, the applicants in a class action suit against the state have said in court papers.
Ramaphosa has submitted that the Constitution casts energy reticulation as a competence of local government. In an answering affidavit filed last month, the president added that there was nothing in the Constitution or any other law that compelled him to provide electricity to the public, hence he could not be accused of being in breach for failing to ensure the lights stayed on.
“It is now accepted that municipalities are in law required to provide water and electricity to their people as a matter of public duty,” Ramaphosa said.
“This duty does not lie with the president or any of the national departments cited herein as respondents.”
In a replying affidavit on behalf of the 19 applicants in the case, United Democratic Movement leader Bantu Holomisa noted that, without sufficient electricity, there was nothing for municipalities to provide, and that they could nor fix the problem as only the national government could approve the construction of more power plants. Therefore, joining municipalities to the litigation, as the president suggested the litigants should have done, would have been a waste of the court’s time.
Holomisa referred to a replying affidavit filed by former Eskom CEO Andre de Ruyter on behalf of the utility, in which he pinpointed insufficient power generation as the root cause of load-shedding.
“This can either be addressed by additional generation capacity — which can either be more coal power stations or more renewables. Municipalities have no legal or constitutional role in the generation of electricity,” he said.
“They cannot licence the building of new power stations. Neither does Eskom for that matter. This is purely a function of the national government.”
The duty to ensure the availability of generation capacity falls to the government by virtue of section 34 of the the Energy Regulation Act. Transmission likewise was a function of the national government.
“Municipalities may play a distribution role at substation levels. But this is only the end point of the electricity value chain.”
They are, in effect, consumers of electricity which they get primarily from Eskom, under the control of the national government.
“It is therefore a fundamental misunderstanding of the law for President Ramaphosa to deny the constitutional and legal duty of the national government and to seek to shift it to municipalities.”
Holomisa said the president made a second mistake in law when he said that electricity is not justiciable in terms of the Constitution.
“There is a further reason why President Ramaphosa has regrettably misconceived the correct legal position,” Holomisa said.
This was so because the National Energy Act contained two provisions that spoke directly to the obligations of the national government in respect of universal access to energy, in particular electricity.
Section 5(1) of the law, states that “the minister must adopt measures that provide for the universal access to appropriate forms or energy or energy services for all the people of the republic at affordable prices”.
Holomisa stressed that this applied to the minister in the national sphere, Mineral Resources and Energy Minister Gwede Mantashe.
“There is simply no evidence that this obligation has been taken seriously by the government. In fact, there is denial of its existence.”
He said the government’s failure extended beyond not making electricity available, to taking away existing access to electricity, adding: “Such retrogression is not compatible with the law.”
Section 5(2) of the act states that the said measures must be taken, bearing in mind “the state’s commitment to providing free basic electricity to poor households”.
“The state’s commitment to providing free basic electricity has thus been written into law. Once written into law, this commitment was transformed into an enforceable duty.”
Section 6 of the same act cast into law the state’s obligation to draft an integrated energy plan, to deal with issues of energy supply, storage and demand in a manner that takes into account, inter alia, security of supply, social equity, employment and the environment.
“Universal access to energy is a central pillar of the act. And so is the provision of free basic electricity to households. These duties are cast on the minister of mineral resources and energy. He does not work in a municipality.”
In his answering affidavit, Ramaphosa said the fact that electricity provision was the domain of municipalities did not mean that the applicants had made out a case against this sphere of government either.
Section 4 of the Municipal Systems Act of 2000 provides that municipal councils had a duty to give members of a community “equitable access to the municipal services to which they are entitled”. But this could only apply as far as electricity was available.
“If there is no electricity available for one reason or another, equitable access is impossible. The applicants have not made out a case to demonstrate that municipalities have failed to provide equitable access to their people.”
Hence, Ramaphosa said, the applicants cannot sustain their claim that rights promised in the Bill of Rights were violated on an ongoing basis. The applicants insist that it was so, and accuse him of flouting sections 85(2) and 83(b) of the constitution.
The first makes him, along with his cabinet, the executive authority responsible for implementing national legislation, except where stated otherwise. The second enjoins him to uphold and respect the Constitution, including the Bill of Rights.
The applicants argue that access to electricity is vital for the enjoyment of 10 fundamental rights, from the right to life to the right to access to food, and that continuous load-shedding undermined each of these.
“The president’s denial of the constitutional obligations entrusted in his office is a betrayal of his oath of office,” Holomisa said, adding that his response to the crisis and the lawsuit seemed to advocate for “an empty bill of rights”.
He noted that De Ruyter pointed out that since 1998, when Eskom was nationalised, it did not have the power to generate electricity, as it was ceded to the national government and, in particular, the energy minister.
It is common knowledge that the government was warned at the time that by 2007 demand would exceed supply. Holomisa said once it finally commissioned two new plants, Medupi and Kusile in 2007, the government had a further duty to ensure that the plants were completed within a reasonable time.
“The government again failed to do so.”
Turning to the sabotage and corruption plaguing power plants, as stressed by De Ruyter in his affidavit and in an explosive interview that has shaken the government, Holomisa said similar to the procurement of about 6 000 megawatt to overcome the current shortfall, this problem was the state’s to resolve.
“It is clear that Eskom cannot address this. Only the government can.”
From the outset, the applicants, in their founding affidavit, said Mantashe and Public Enterprises Minister Pravin Gordhan not only apparently failed to agree on the causes of load-shedding but to act in concert to find a way of ending it.
Holomisa returned to this and said it pointed to a further failure on the part of the president.
Section 85(c) of the Constitution makes clear that, in exercising his executive power, he has to co-ordinate the functions of state departments.
“There is clear evidence of lack of co-ordination, simply on account of the facts pleaded by Eskom, which blames the government for various breaches since at least 1998.
“These would have been apparent to President Ramaphosa since he took office. That it is now five years later, and he is yet to fulfil his constitutional obligations, means that the court cannot cut him any slack.”
The applicants seek an urgent interdict compelling the state to exempt certain sectors from load-shedding to ensure the provision of basic services, and to table a plan, within seven days, with steps it will take to end load-shedding, including a maintenance schedule for Eskom.
This part of their application will be heard by the Pretoria high court on 20 March and the second, where they seek a declaratory order against the president and the government, on 23 May.
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