Pretoria - The Gauteng High Court Pretoria, has ordered the government to ensure uninterrupted electricity supply to all government hospitals, clinics, schools and police stations.
On Friday, a full Bench (three judges) gave Public Enterprises Minister Pravin Gordhan 60 days to make this happen.
This followed an application lodged by the UDM and other political and civic organisations, which argued the government and power utility Eskom had violated basic human rights by implementing load shedding that has knocked critical areas of the economy such as hospitals.
Their application hinged on the provision of electricity to 85 police stations, 93 hospitals, and 23 000 schools badly affected by load shedding.
Judge Norman Davis, who wrote the judgment, said in cases where sites could not be isolated from the grid to exempt them from load shedding, arrangements must be made for alternative power supply to these government institutions, such as generators.
The UDM and the other applicants’ application was at this stage not about stopping load shedding, but rather about reducing the prejudicial impact of load shedding on public health institutions, schools and police stations that do not have alternative energy sources available.
The applicants argued that without such energy sources, the Constitutional rights of citizens to healthcare, security and education are infringed upon.
The 19 applicants brought their application in two stages – part A and B.
In the latter part, only to be heard at a later stage, the applicants are asking the court to declare load shedding unconstitutional.
Judge Davis said the order granted at this stage would normally be interim of nature, but pending the outcome of part B in the application, once electricity is supplied, by whatever alternative means, that event has passed and no amount of revisiting would undo that.
“In that sense, even though the order sought might be in the form of an interim interdict, the effects thereof are permanent in nature,” he said.
Eskom explained that, in addition to its historic failure to maintain its power generating capacity, its inability to render sufficient electricity to the country, was further hampered by the lack of cost-effective tariffs.
The low reliability of its ageing generation fleet, the previous management’s refusal to conclude renewable energy independent power producer contracts, regulatory obstacles, high municipal debt and state capture, corruption and sabotage damage wre among ills it faced.
Eskom conceded that, “Load shedding causes human suffering and has a detrimental impact on a variety of constitutionally protected rights … ”
President Cyril Ramaphosa, in his affidavit, opposed the affidavit and said, “None of the government respondents have a constitutional responsibility to supply electricity to the people of South Africa.”
He confirmed that the causes of load shedding and “shortfall” of electricity capacity are the “failure to invest in new generation capacity in the 1990s and early 2000s”. He conceded that this investment would have produced sufficient capacity to meet further demand.
Ramaphosa also conceded that “flaws” in the execution of the new build programmes at Medupi and Kusile, as well as “failure to conduct adequate maintenance in previous years as part of an ill conceived strategy to keep the lights on without regard for future consequences”, were all part of the problem.
Judge Davis said: “It is clear that, whatever the president and his Cabinet minister averred, the consequences of policy decisions resulted in the current need by Eskom to continue to implement various levels of load shedding.”
The applicants described this situation to the court as “disastrous” and labelled it a “human catastrophe”.
The judge added: “We find that there have been repeated breaches by the state of its constitutional and statutory duties and that these infringe on citizens’ rights to healthcare, security and education.
“We therefore find that both a clear right and sufficient acts of interference have been established by the applicants to satisfy the requirements for a final interdict.”
The court noted the plan by the government to alleviate and hopefully end load shedding which caters for short-, medium- and long-term solutions.
The judge also noted that the government argued that the courts should “stay in its lane and not usurp the governance of the country”.
“However, if one has regards to the contents of the plan (to end load shedding), the ‘interventions’ contemplated therein, and the ‘roadmap’ mentioned, there is a marked difference between those policy and planning items, both in their nature and in their magnitude and costs and the limited relief applied by the applicants,” the judge said.
The latter merely deals with emergency relief from load shedding in limited areas where it is needed most, he said. The court concluded that this order did not cross the line of separation of powers.
Pretoria News