/ 5 April 2023

Government to halt Eskom state of disaster, fearing court battles

Eskom Flag
Eskom has reported a 6% decline in sales in its interim results for the six months ending in September, revealing a sustained decrease in plant performance. (Waldo Swiegers/Bloomberg via Getty Images)

Cooperative governance (Cogta) minister Thembi Nkandimeng is expected to announce the termination of the energy state of disaster on Wednesday, after the government discovered it had made blunders in its regulations, sources have told the Mail & Guardian

According to insiders, the government has been advised that court challenges it was facing as a result of its disaster management plans around Eskom would have led to “serious embarrassment”. 

One insider said that there were still questions over what the government would do to exempt businesses and hospitals from load-shedding. 

“With Solidarity and Outa going to court, there [are a] lot of loopholes which they have uncovered, and they could win against us. So in anticipation of that, we are terminating it. We were in great trouble and there was no other way around it,” the high-ranking government official said. 

In a social media post early on Wednesday, Outa said its legal team was informed about the government’s decision to withdraw the state of disaster and revoke the regulations.

Another insider said that the government was expected to gazette the termination by 11am on Wednesday.  

A legal letter sent by the state attorney to Solidarity and Outa lawyers, said that Nkadimeng and the head of the national disaster management centre would implement the decisions on Wednesday, via publication of the relevant notices in the government gazette.

“There is no live controversy for determination. We invite the applicants to withdraw their applications.” 

The state attorney letter, seen by the M&G, said that the state respondents do not intend filing an answering affidavit addressing the merits of either application.

“We propose that the parties address a joint letter to the deputy Judge president to inform him of these developments and, if necessary, to cancel the meeting scheduled for 12 April 2023.”

Shortly after President Cyril Ramaphosa announced the energy state of disaster, Solidarity released a statement saying that it would take the government to court. 

Its chief executive, Dirk Hermann, said that disaster legislation was not intended to be a means of circumventing government failure.

Solidarity said that if another legislative instrument was available to deal with the state of exception, it must be used. 

Solidarity also confirmed via social media that it had received a legal letter, saying the government would withdraw the energy state of disaster on Wednesday, and that it had been asked to withdraw its case. 

During a prior interview with the M&G, Electricity Minister Kgosientsho Ramokgopa said that the government would only invoke the provisions of the Disaster Management Act in relation to Eskom if existing solutions failed.

Ramaphosa announced a state of national disaster in February in response to the unrelenting energy crisis, while also announcing he would appoint a dedicated electricity minister within the presidency.

He said the state of disaster would enable the government to pursue practical measures needed to support businesses in the food production, storage and retail supply chain, including the rollout of generators, solar panels and uninterrupted power supplies.

The need for a state of disaster had been questioned, including by government advisers, but Ramaphosa said it was necessary for the “strong central coordination and decisive action” needed to stem the energy crisis.

“We don’t start by invoking the provisions of the Disaster Management Act,” Ramokgopa said in the prior interview with M&G. “We start by exploring what is possible within the existing framework. If that which is present does not allow us to act with speed, then let’s invoke it.”