ConCourt dismisses Eskom appeal to reduce power to indebted municipalities

Eskom’s appeal against a court order stopping it from reducing the power supply to two indebted municipalities, pending a review of the power utility's decision, was dismissed by the Constitutional Court on Friday.

The power utility challenged the orders of the Pretoria high court and the Supreme Court of Appeal, which barred it from implementing power reductions to the two municipalities, Lekwa in Mpumalanga and Ngwathe in the Free State.

Eskom's appeal concerned whether the high court and the SCA were correct to order the power utility to supply electricity to defaulting municipalities, pending the institution of review proceedings by residents' associations in the two municipalities.

In a majority judgment, justice Mbuyiseli Madlanga — with four other judges concurring — found that power reductions were harmful to the communities of Ngwathe and Lekwa municipalities.

Eskom had breached several provisions in the Bill of Rights, he said.

“The rights violations at issue are most atrocious and must count for quite a lot in the balancing exercise ... Very few rights violations surpass what the residents have been subjected to.

“On balance and without any hesitation, I conclude that the balance of convenience favours the residents,” Madlanga said.

The Constitutional Court dismissed the appeal.

The review applications against Eskom before the high court were brought by the Vaal River Development Association and the Lekwa Ratepayers’ Association in 2020 on behalf of residents of the two municipalities.

This is after Eskom decided to reduce the bulk electricity supply to the municipalities to the notified maximum demand (NMD) levels set out in the supply agreements. This meant Eskom would no longer supply electricity in excess of the contracted NMD levels. Eskom informed the municipalities but did not inform the communities. 

Residents complained they were not consulted about the planned power reductions, which affected their drinking water. The shortage in power supply led to untreated sewage seeping into the Vaal River system, contaminating drinking water.

The high court held that sufficient electricity supply was inextricably intertwined with the rights to health care, food, water and social security. It found Eskom’s prejudice was financial compared with the irreparable harm suffered by the residents.

It ordered Eskom to increase or alternatively restore the maximum electricity load supply to the level supplied before its decisions, pending the final adjudication of the associations’ application for a review of Eskom’s decisions.

Madlanga questioned why Eskom could not continue to provide additional electricity as it had done over the years.

“Who would want to be subjected to this ‘human catastrophe’ — for example to drink and use water contaminated by faecal matter and generally not cleaned properly, even absent the faeces-related problem — while a review is winding its way through our court system?

“In addition, it is not as though in the interim Eskom cannot provide the additional electricity. It can ... Has anything changed which now makes it impossible for Eskom to continue to do so?” Madlanga said.

The minority judgment by acting justice David Unterhalter — with three other judges concurring — held that the duty to supply electricity rested with the municipalities and not with Eskom, and that residents enjoyed no rights against Eskom.

Eskom will obey the court order, spokesperson Sikonathi Mantshantsha said.

“Eskom will abide by the Constitutional Court decision while exploring measures to safeguard its best interests in the matter,” he said.

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