Ramokgopa given until end of January to ensure public hospitals, schools not affected by load-shedding

The Pretoria high court has ordered minister of electricity Kgosientsho Ramokgopa to “take all reasonable steps” — by no later than January 31 — to ensure public hospitals, clinics, schools and police stations are not affected by load-shedding.

In a unanimous judgment of three judges, judge Norman Davis said this order was “just and equitable”, once the court had determined that load-shedding breached several constitutional rights.

The court also declared that load-shedding breached the rights to human dignity, life, freedom and security of the person, to an environment that was not harmful to people’s health and wellbeing, the right of access to healthcare services, food, and water and the right to basic education.

A similar order had been granted by the same bench in May, but it was directed at the minister for public enterprises. The minister appealed against the order. Davis said in his judgment the minister’s grounds of appeal had been that “the order was alleged to be vague, that it was impossible to implement as the minister did not have the power to generate and supply electricity, that the order was not competent in law for the same reason and that the order violated the separation of powers”.

The effect of the application for leave to appeal was to put the May order on hold. But what then happened, in September, was that it fell away. This was because the applicants — the UDM, other political parties, trade unions and individuals — ended up withdrawing the second half of their case, or Part B.

This meant that Part A, under which the May order was given, lapsed. The application for leave to appeal then became “moot” — there was no need for it any more. In a complicated turn of events — because three different cases on load-shedding were being heard together — the DA’s and the SA Local Government Association’s (Salga) cases, which overlapped with the UDM’s case, remained, and were argued before the same judges.

In the judgment, Davis said the government had conceded that people’s rights had been breached. Though they had argued that the court should not declare this to be so, “considerations of public policy, justice and convenience and the continued existence of an infringement of constitutional rights” made it appropriate to grant a declaratory order. This left the “vexing question” of what would be the appropriate relief, once such a declaration was made, he said.

He said the court was “mindful” of the separation of powers and that orders which implicate budgets of organs of state should be exercised sparingly. But “nowhere has it been indicated in the opposing papers ... that the relief previously granted in Part A of the UDM’s application would cripple the state,” he said. It was also clear the government’s plans all envisaged “some relief at some future date (only)”.

The appointment of a minister of electricity took care of the minister of public enterprise’s objections in his application for leave to appeal, said the judgment.

“We find no cogent reasons why those orders, albeit slightly modified, dealing with immediate relief cannot and should not be granted. To do so would at least provide relief for learners going into the new school year,” he said.

However, all the other orders sought by the parties were refused by the court.

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