Load-shedding judgment 'vague', 'impossible to implement': Gordhan

The Pretoria high court’s judgment on load-shedding is vague, impossible to implement and violates the rule of law, lawyers for public enterprises minister Pravin Gordhan said in court papers this week. 

Gordhan’s notice of application for leave to appeal was against the order that he must, within 60 days, take “all reasonable steps” to ensure there “shall be a sufficient supply or generation of electricity to prevent interruption of supply as a result of load-shedding” to state schools, health institutions and police stations.  

But in their appeal notice, Gordhan’s lawyers say the court “erred” on a number of grounds: it is “vague” because where the order refers to “all reasonable steps” it requires the minister to determine what these are. He must also determine which steps must be taken in conjunction with other organs of state. “This is inconsistent with what a valid and constitutional order must prescribe.”

The order was also different to what was asked for by the parties who took the case to court — the UDM, other political parties, NGOs and individuals. They “specifically” asked for an order that Gordhan take reasonable steps to procure “alternative sources” of electricity, such as generators or solar.

The order granted by the court was different and “more onerous”, said Gordhan’s appeal notice. 

The court order also “wrongly assumes the minister has the power and ability to ‘ensure that there shall be sufficient supply or generation’ to prevent load-shedding”.

The judgment, in paragraph 21, recognised the minister did not have the power to generate and supply electricity. That paragraph says the minister of mineral resources and energy authorises the generation of electricity and Eskom provides generation, supply and distribution in terms of its performance agreement with the state, represented by the public enterprises minister. 

In paragraph 51, the court found generators were often insufficient, said the notice.  

“It is not possible for the minister, within 60 days, even in conjunction with other organs of state, to ensure uninterrupted electricity supply to the listed public institutions and facilities when regard is had to the fact that the court does not consider generators to be a viable source of alternative energy.”

The court also erred in that it required Gordhan to take steps “for which he does not bear legal authority”. He does not have authority over schools, health establishments, police stations or the provincial and municipal spheres of government.  

The order compelled him to do things that would implicate other ministers over whom Gordhan had no direct control and “cannot in law be held liable for their compliance or non-compliance”. Similarly, with provincial departments and local government.  

But “the minister cannot tell other organs of state to take reasonable steps which even the minister cannot readily identify”. Implementing a court order without any powers to do what he had been ordered to do offended the principle of legality.

The order also compelled the state to “drastically rearrange its budget” within 60 days, in circumstances where the court had itself failed to prescribe the exact steps he must take, said the notice. 

Gordhan has applied to appeal to the Supreme Court of Appeal. 

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