Government and Eskom face legal action over rolling blackouts

Prominent South Africans including three political parties, a trade union and business owners want government to stabilise the supply of electricity by the end of this week or face legal action for contravening its duty to provide energy.

The group consists of, among others, the UDM, Build One SA, IFP, the National Union of Metalworkers of SA (Numsa), policy analyst Lukhona Mnguni, owner of Ikasi Farming Phiwe Mehlo, Ntsikie Mgayiya of Ntsikie Mgayiya Real Estate, the Circle, a voluntary active citizenship organisation with members in Cape Town, Eastern Cape, Gauteng and KwaZulu-Natal, Mastered Seed Foundation — a Christian family foundation registered as a non-profit organisation and a Mthatha-based printing and branding company Fula Property Investment.

Their lawyers — seven law firms — have jointly written to public enterprises minister Pravin Gordhan and Eskom boss Andre de Ruyter claiming the state was in breach of its obligation to provide electricity.

In a letter on Monday, lawyers for the group said they have been instructed to demand that the state provide the following undertakings:

• That there will be no load-shedding without procedural fairness and a fair opportunity to make alternative arrangements to affected people and businesses;
• That load-shedding stops with immediate effect, and if not, a full explanation why the government is unable to stop load-shedding with immediate effect;
• In the alternative, they are instructed to demand a specific timetable as to when load-shedding will end, and the reasons for the said time table;
• That the state will develop and make publicly available a clear plan to end load-shedding, which must include the resources available to ensure that it is realised;
• That the 18.65% increase granted by Nersa will not be implemented, pending the determination of the court challenge which their clients intend to institute;
• That the state will, through lawfully created mechanism, make reasonable disclosure to the public on the challenges driving the energy crisis and the solutions implemented to solve it; and
• That the state will commit to compensate everyone who has suffered quantifiable financial losses because of load-shedding.

The lawyers gave government until January 20 to provide the undertakings sought or a court application will be made to secure appropriate relief. In this instance, papers would be lodged by January 23 for urgent relief.

They said persistent, rolling blackouts have dogged the nation’s electricity supply since the second half of 2007.

“It continues to the present, with many reasons furnished for the continuous, protracted shutdowns in supply. The impact has been, among others, an economic noose around South Africa’s growth prospects.

“Notwithstanding the debilitating impact of load-shedding, apparent to the state since 2007, energy sector reforms have been slow, if not non-existent.”

They said continuous blackouts have become so commonplace and their damaging impact so ubiquitous that electricity, once a reasonably accessible commodity, is now the preserve of the rich. “It cannot be disputed that the state, as represented by the ministry of public enterprises and Eskom, has not taken any reasonable measures to provide vulnerable South Africans with adequate and reliable energy, whether electricity or any other alternative forms of energy.

“In so doing the state has contravened its duty to provide energy as imposed by the constitution, national legislation, and contract.”

The state has a constitutional obligation to ensure that power generation, transmission and delivery accords with the reasonable consumption demands of the public, they said.

They added that their clients raised concerns that many small businesses have buckled under the strain of load-shedding.

The other sectors affected include education, healthcare, basic sanitation, food security, access to courts and that Numsa is particularly concerned about the impact of closures of power stations on employment.