An employee lights candles ahead of load-shedding at a restaurant in the Hout Bay district of Cape Town. File photo by Dwayne Senior/Bloomberg via Getty Images
The Pretoria high court has found that load-shedding constituted an infringement of constitutional rights and given the minister of public enterprises 60 days to ensure sufficient electricity supply to spare public health facilities, schools and police stations power interruptions.
The relief was sought and granted pending the hearing of Part B of the case, in which the 19 applicants, among them several members of the political opposition, asked the court to declare load-shedding unconstitutional and “ensure a permanent cessation of an unlawful state of affairs”.
However, a full bench of the court said, once electricity was supplied, even if only in terms of an interim order, that act of supply could never be revoked or undone.
“This might require the applicants to satisfy the requirements for a final interdict, being the establishment of a clear right, an interference and the absence of another remedy.”
Significantly, the court found that the applicants had done so.
They had established a prima facie right and shown that the interruptions to power supply created the risk of irreparable harm in the form of a threat to the right to life, especially of the sick and elderly in public hospitals.
“We find that this is the position, irrespective of whether the relief is characterised as interim or final,” judges Norman Davis, Colleen Collis and Jabulani Nyathi said.
The court traced the history of events and decisions that have led to load-shedding.
“In simple terms, the government had been warned (and had accepted) that it would run out of generating capacity by 2008 (which had happened) and in the 15 years since then, it has failed to remedy the situation,” it said.
Though President Cyril Ramaphosa opposed the relief sought, the court said, he conceded that the current need to implement load-shedding was the result of the failure to invest in new generating capacity in the 1990s and 2000s, a failure to perform adequate plant maintenance, and flaws in the execution of new build programmes.
“It is clear, whatever the president and his cabinet ministers averred, the consequences of policy decisions resulted in the current need by Eskom to continue to implement various levels of load-shedding.”
“On a conspectus of all of the above, we find that there had been repeated breaches by the state of its constitutional and statutory duties and that these breaches are continuing to infringe on citizens’ rights to healthcare, security and education.”
The court gave short shrift to Ramaphosa’s submission that the applicants need not have come to court, but could have, and still should, raise their concerns in parliament.
It “simply has to be stated to indicate how inappropriate such a remedy would be”, the court said, adding that the dire situation of hospitals had been raised by way of a parliamentary question earlier this year, to no effect.
The situation at hospitals was plainly untenable, with those who had generators having to take money from fuel out of their limited budgets for medicines and salaries, and the same applied to public schools and police stations, the judgment said.
“The police stations and schools are even worse off, they simply close or shut down during load-shedding.”
The court also rejected the argument that there was no need to grant interim relief because the government had adopted a “roadmap” for ending the electricity crisis. The contents and the timelines of this plan are uncertain and it does not propose to address the urgent needs of the public institutions in question.
The applicants had hence satisfied the requirement, which applies to both interim and final orders, that they had no other available remedy.
“In the circumstances of this case, we find that the granting of such relief would fill a vacuum and would not breach the separation of powers principle.”
The court crafted its order widely so as to “leave it in the hands” of Public Enterprises Minister Pravin Gordhan to decide how he is going to rectify the situation and to allow him to enlist other organs of state in doing so.
“Such enlistment would be a simple consequence of the ‘inter-relatedness of organs of state, all who have the duty to promote the constitution and to prevent infringements of constitutional rights.”
Turning to Eskom’s submission that some public institutions were so embedded in a surrounding power network that exempting them would mean exempting a whole suburb or town, the court said the minister would then have to make another plan to keep the lights on.
“Individual solutions therefore need to be devised in instances where the DPE minister cannot secure exemptions, such as the provision of generators or alternate energy supplies.”
It said it was apt that the applicants had targeted Gordhan in their quest for interim relief as he had conceded that his department would be directly involved in implementing the state’s electricity plan.
The application was led by the United Democratic Movement and argued by Advocate Tembeka Ngcukaitobi.