/ 18 January 2023

Pressure mounts on government as more court cases loom over load-shedding

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DA leader John Steenhuisen said South Africans were being asked to foot the bill for looting and mismanagement at Eskom by paying tariff increases which totalled up to 650% since 2007. (Photo by Gianluigi Guercia / AFP via Getty Images)

The state faces further litigation on the energy crisis, with sets of papers likely to be filed this week and next, while the National Energy Crisis Committee (Necom) is pushing for emergency legislation that would speed up approval for new power plants. 

But a Necom meeting yielded no further detail on proposed amendments, and the presidency said such would follow at a later stage.

The Mail & Guardian understands from reliable sources that Democratic Alliance will lodge its high court application later this week. This is the state’s second court challenge regarding the electricity crisis, with the DA now preparing court papers opposing the implementation of the 18.65% tariff increase national energy regulator Nersa has approved for the coming financial year, plus a further 12.74% for the next.

Announcing the court challenge, DA leader John Steenhuisen said South Africans were being asked to foot the bill for looting and mismanagement at Eskom by paying tariff increases which totalled up to 650% since 2007.

“The DA rejects this tariff increase by Nersa, we reject stage six load-shedding, and we reject government’s poor response — or rather, lack of response — to the biggest crisis our country has faced in the history of our democracy.”

This follows just days after a group of eight law firms sent a letter of demand to Public Enterprises Minister Pravin Gordhan and outgoing Eskom chief executive Andre de Ruyter threatening a constitutional court challenge on load-shedding.

The attorneys, acting on behalf of a clutch of opposition parties and private citizens, demanded that the state either cease load-shedding with immediate effect or, failing that, provide a full explanation why this cannot be achieved at present and a timeframe as to when it could.

They are also seeking an undertaking from the state that it would compensate anyone who has suffered quantifiable financial loss as a result of load-shedding.

The department of public enterprises on Tuesday acknowledged the letter of demand and said it was soliciting legal advice. 

Necom, which is run by President Cyril Ramaphosa’s office, said at a meeting on Monday that emergency legislation would be tabled to allow faster approval and construction of new power plants.

A single-page briefing document circulated at the meeting gave no further details in this regard and the presidency said these would be announced “in due course”.

The document noted that agreements have been signed that would see construction proceed soon on renewable projects stemming from bid windows 5 and 6 that would yield 2 800 megawatts of power.

Other steps that should alleviate the power crisis, according to the committee, include negotiating the importation of 1 000MW from neighbouring countries starting this year.

But the eight law firms have set Friday as the deadline for the state to accede to their demands, failing which they would approach the courts for urgent relief on Monday, 23 January.

They charge that Eskom finds itself in breach of its constitutional duties, as an organ of state whose role in supplying electricity to ensure the economic and social well-being of citizens has been confirmed by the constitutional court. The rights offended by its failure to do so include those to life, freedom to trade, health and education, a secure environment, water and basic sanitation and food.

“As load-shedding continues to contribute significantly to the failing economy, it is the most vulnerable among us who are most affected, including school children, patients in public hospitals, small business enterprises in the tourism and other sectors, and the farming sector to mention but a few,” stressed the letter sent by Mabuza Attorneys on behalf of all parties.

“Continuous blackouts have become so commonplace and their damaging impact so ubiquitous that electricity, once a reasonably accessible commodity, is now the preserve of the rich.”

It went on to note the state’s ambivalence about the future role of coal-based generation, and demand clarity in this regard.

“Our clients demand to know whether or not there is a decision taken by the government or anyone to ‘shift from coal’,” it says, asking for the full details of a funding agreement with the United States for moving away from coal-fired energy.

The group associated with the letter so far counts the United Democratic Movement, the Inkatha Freedom Party; Mmusi Maimane’s Build One South Africa Movement, political analyst Lukhona Mnguni; Phiwe Mehlo, who is the owner of Ikasi Farming, a small-scale broiler business and a supplier to hawkers in East London; Ntsikie Mgayiya Real Estate and Zintle Ncalo, the director of Fula Property Investment, a printing and branding company in Mthatha.

Like the DA, they object to the looming tariff increase, saying it is irrational given the current level of service being provided by Eskom. The case is expected to be pleaded by Tembeka Ngcukaitobi SC.

Meanwhile on Monday evening, Gordhan, De Ruyter, Eskom chairperson Mpho Makwana and fellow board members attended a crisis meeting of the ANC’s parliamentary caucus where MPs charged that load-shedding was sabotaging the party’s hopes for the 2024 national elections.

The summons to the meeting, according to an official document seen by the Mail & Guardian, was issued by ANC MP and the party’s chief whip, Pemmy Majodina, who demanded that Gordhan and Eskom present a “turnaround plan” to the caucus.  

Sources who have intimate knowledge of the meeting said ANC MP Matshidiso Mfikoe led the charge against the Eskom delegation,accusing the power utility of sabotaging the party’s relationship with its constituency. 

Detailed questions were sent to ANC chief whip Majodina, who did not respond.