/ 20 January 2023

Gordhan asks for more time on legal demands relating to load-shedding

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Public Enterprises Minister Pravin Gordhan. Photo: Essa Alexander/Sunday Times

Public Enterprises Minister Pravin Gordhan has responded to a letter of demand by litigants planning to sue the state over load-shedding unless it meets certain conditions by Friday, saying it did not leave him adequate time to respond.

“Our client has noted the contents of your letter and the complexity of the issues and demands raised,” said the response letter, written by the state attorney on behalf of the minister.

“Our client, however, does not have sufficient time to respond comprehensively and you shall receive our client’s response when it is reasonably possible to do so.”

The letter comes in response to one issued by Mabuza Attorneys roughly a week ago to demand that the minister, Eskom chief executive Andre de Ruyter and the government as a whole meet certain demands by Friday, failing which, his clients would launch a constitutional challenge with regard to ongoing load-shedding.

The 16-page letter of demand sent to Gordhan and De Ruyter by seven would-be litigants, including the United Democratic Movement, Inkatha Freedom Party and Build One South Africa movement, called on the state to halt load-shedding by Friday.

Failing that, they said, the government should provide a full explanation why this cannot be achieved and that a timetable is given to indicate when the rolling power cuts will stop, with an explanation for the timeframe.

The parties said ongoing load-shedding violated a plethora of constitutional rights, including the rights to freedom and freedom of trade; to life and healthcare, education, water and basic sanitation as well as to food and a secure environment.

Their list of seven demands included that an 18.65% electricity tariff increase recently granted to Eskom by energy regulator Nersa “will not be implemented pending the determination of the court challenge which our clients intend to institute”.

They also asked for an undertaking that there will be no load-shedding without procedural fairness and an opportunity to those affected to make alternative arrangements for power supply, and that the state agrees to compensate anyone who has suffered quantifiable financial loss as a result of load-shedding.

In addition, they demanded full disclosure of the difficulties encountered in electricity supply and the details of a funding agreement with the US for moving away from coal-fired energy.

“Our clients demand to know whether or not there is a decision taken by the government or anyone to ‘shift from coal’,” the letter said.

“In the event that the undertakings sought are not provided by 20 January 2023 we are instructed to inform you, as we hereby do, that application will be made to a court of competent jurisdiction to secure appropriate relief. “

Papers would then be lodged on Monday, 23 January, they said. The parties would be represented by Advocate Tembeka Ngcukaitobi SC. 

The would-be litigants include the Inkatha Freedom Party, political analyst Lukhona Mnguni, Phiwe Mehlo, who is the owner of Ikasi Farming, a small-scale broiler business farm 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.

Eight law firms are involved in the likely legal challenge.

The Democratic Alliance on Wednesday filed papers in the Pretoria high court in which it seeks an interdict barring Eskom from implementing the tariff hike pending the determination of the party’s own, largely similar constitutional challenge to ongoing load-shedding.