The last time the country experienced load-shedding at stage six was at the end of November 2023 (Dwayne Senior/Bloomberg via Getty Images)
Load-shedding is the direct result of the government forsaking its legal duty to ensure electricity availability to protect rights enshrined in the Constitution, parties pursuing a class action suit against the state argued in court on Monday.
“Load-shedding is not an act of God, it was caused by Eskom, it was caused by the national government, ” advocate Tembeka Ngcukaitobi told a full bench of the Pretoria high court.
It is the applicants’ case that load-shedding undermined 10 constitutional rights — from the right to life and education to a safe environment and freedom of trade — and that President Cyril Ramaphosa, the ministers of mineral resources and energy and public enterprises and the rest of the government,failed to uphold the Constitution.
“There is no scope for doing nothing in the face of these violations,” he said.
“Load-shedding has caused avoidable deaths; when we say it has caused a humanitarian crisis, we are not exaggerating. It also has an impact on education,” Ngcukaitobi said, adding that it was entrenching inequality because schools in wealthy areas were able to function during load-shedding, whereas those in poor areas sent pupils home.
“It has created a scenario in which black children are falling even further behind their peers.”
In part A of their application, which was pleaded on Monday, the 19 applicants seek an interdict compelling the government and Eskom to exempt key institutions, including hospitals, schools and police stations, from load-shedding pending the hearing in May of part B, in which they seek an order to declaring load-shedding unconstitutional and compelling the state to end it.
Ngcukaitobi said it was not disputed that the primary cause was a lack of generation capacity. Because only the government, notably the energy minister, had the power to procure more capacity, it followed that it bore primary responsibility in law for the limited supply of electricity and the violation of rights that flowed from it.
The responsibility arose in terms of the National Energy Act, which obliges the energy minister to take steps to ensure that energy resources are available in sustainable quantities and at affordable prices.
“Section 5(2)(i) said that the measures must take into account the state’s commitment to provide free basic electricity to poor households. So there is already a statutorily inscribed commitment, it is not just in the manifesto of the ANC or in a white paper, it is in the Act.”
Section 6 of the same Act obliged the state to develop integrated electricity plans to deal with the demand for electricity in a way that ensures security of supply, universal accessibility, social equity, employment and environment, he said.
“This Act is crucial because it tells us that the fixation on electricity should not detain us as a matter of law, because there is a self-standing obligation to ensure universal access to appropriate forms of energy, and it should be read with the Energy Regulation Act, which says specifically that there must be an uninterrupted supply of electricity.”
The implication was, Ngcukaitobi said, that universal access to electricity has been written into the law, and obligations have been imposed on the energy minister under the Eskom Conversion Act, as well as the public enterprises minister, through the mechanism of the share-holder compact, and Eskom.
“So anywhere you look, universal access to energy is a central pillar. It is indeed an organising principle, and so is the provision of free basic electricity to poor households, that too is an organising principle,” he added.
“And the duties are cast throughout the national government, under section 7(2) of the Constitution, and under specific statutory instruments.”
Ramaphosa was enjoined by section 83(b) of the Constitution to ensure that the obligations it placed on the state were met.
“That is his primary obligation and when he does so he must ensure that the function of the state departments are coordinated.”
Ngcukaitobi denied a suggestion by Ramaphosa in court papers that the applicants were attacking him in an irresponsible manner.
He said it was disturbing, because the application, led by the United Democratic Movement, was not politically motivated and not aimed at the person of the president.
“Nobody wants to attack President Ramaphosa, if it was President [Jacob] Zuma who was the president, we would have brought the same application,” he said.
“What we are concerned with is the office of the president and its dereliction of duty and we say this because Mr De Ruyter says you have not given me generation capacity which I need to end load-shedding. I don’t have enough money to devote and dedicate towards maintenance. Who is in control of both those elements?”
As former Eskom chief executive André de Ruyter set out in his replying affidavit, Energy Minister Gwede Mantashe was responsible for the first and Finance Minister Enoch Godongwana for the second.
“Mr De Ruyter says I don’t hold the key to the ingredient I need to end load-shedding, it is held by someone in the cabinet and I have not been given it and I have said this publicly.
“The question that you have to ask is, who has the obligation to ensure that Mr De Ruyter is given the key that he says he does not have, under the Constitution, not politically?
“The Constitution does not leave that to chance, it does not leave it hanging in the air. It imposes it squarely on the president.”
It did so in part by telling him to coordinate the functions of state departments and entities, but it was plain from Mantashe’s extraordinary assertion in December that Eskom was attempting to overthrow the government through load-shedding that the various players were not working in concert.
“So, on a prima facie basis it is quite clear to us — we say this with the greatest respect — that there has been a failure of a presidential duty that is imposed by section 85(c) because there is plainly lack of coordination.”
Ngcukaitobi said Ramaphosa’s answering affidavit offered no answer to two critical issues: one, the lack of additional generation capacity and, two, how is it possible that an parastatal answerable to two ministers — Mantashe and Gordhan — can be accused of attempting to overthrow the state “if there is coordination”?
“The constitutional and legal obligations are clear. They cannot be evaded and avoided. The attempts by the president to avoid and evade should be regarded as feeble and legally unsustainable,” he said.
Ramaphosa has suggested that the application is misdirected because part B of schedule 4 of the Constitution makes equitable electricity provision a municipal competence. But if the applicants were to bring local government before court, they would still fail because municipalities could not provide electricity when there is none, as in when load-shedding is implemented.
Of this Ngcukaitobi said: “It is self-serving for the government to say go to municipalities when it knows that in violation of its own obligations it has not ensured that there is enough electricity to go to municipalities so that they can consume and distribute the balance.”
It was clear, from De Ruyter’s evidence, that there has been a prima facie violation of the obligation to ensure there was enough generation capacity. The same applied to maintenance of power plants, which was the only way to improve their combined energy availability factor, which has slipped to below 60%.
The jury was out as to whose fault that was, with Eskom chairperson Mpho Makwana and Public Enterprises Minister Pravin Gordhan accusing De Ruyter of championing renewable energy to the detriment of maintenance.
The applicants were not invested in that debate but believed there was a breach if the country was reliant on coal, yet plants were neglected without having an alternative source.
“It is not a policy debate between us and them, it is a practical outcome, because for the clinics and the hospitals and the schools and the police stations, whether their electricity comes from the sun or the wind, what is important is that it should not be interrupted.”
It made no difference either whether these vital facilities were exempted from load-shedding by way of installing circuit-breakers that would isolate them from the local networks in which they embedded, or with the help of generators.
But the existence of this second option meant Eskom could not plead that sparing them in the short term would undermine the aim of load-shedding and risk the catastrophic collapse of the grid.
The state’s gazetting of regulations allowing for exemptions for key facilities in a national state of disaster declared by Ramaphosa after the applicants filed their court challenge, as further proof that relief was possible.
Therefore, Eskom and the government could not contend that they would suffer irreparable harm if the interdict was granted. It was undeniable that the applicants would if it were denied.
The question was whether the bench should, for now, allow the applicants to suffer “such abject misery and horrendous violation of their rights”.
Ngcukaitobi said the respondents clearly believed that the answer was yes, because they expected people to wait for the eventual procurement of the minimum 4 000 megawatts it would take to substantially curtail load-shedding without saying when it would come online.
Reading their affidavits did not take one further, he continued.
“That is the full story on the most critical element to end load-shedding, which is new capacity. You have Eskom saying it is Minister Mantashe’s fault, you have Minister Mantashe not giving you any coherent answer, saying read the president’s affidavit, you go to the president’s affidavit, you are left none the wiser.”