Opposition parties, Numsa and NGOs have launched an urgent court application to compel Eskom and the government to exempt essential sectors from load-shedding — including hospitals, schools and small businesses.
Alternatively, these essential sectors should be provided with other sources of electricity, they said.
In an affidavit, UDM leader Bantu Holomisa said Eskom’s approach to rationing electricity was a “blunt instrument which hits everyone — the young and old, the sick and the healthy, and the rich and poor alike”.
This was not what was envisaged by the constitution, he said.
“Even at a time of crisis, the bill of rights continues to bind the state. It is necessary that the needs of the most vulnerable in society are catered for.”
The UDM, IFP, ActionSA and Build One SA parties have joined Numsa, Saftu and a number of individuals and NGOs to bring the court application.
The case is in two parts: Part A wants urgent interim relief from the court. In addition to exempting essential sectors, they are asking the court to suspend the recent decision by the regulator to hike electricity tariffs. They also want the court to order Eskom to publish load-shedding schedules in advance and give electricity users an opportunity to make representations about the schedules.
Holomisa said he had canvassed the feasibility of exempting critical infrastructure and small businesses from load-shedding.
It “has been confirmed that this is eminently possible but has simply not been implemented by Eskom”, he said.
The applicants also want the court to order public enterprises minister Pravin Gordhan and Eskom to produce a plan explaining the measures they will “immediately” take to end power cuts and detailing the steps taken to ensure the maintenance of Eskom’s power stations.
Holomisa said the energy action plan, developed by the National Energy Crisis Committee and announced by President Cyril Ramaphosa, was not a plan.
“I deny there is any plan by the presidency to manage load-shedding, because it did not address the underlying reasons for load-shedding, namely the absence of regular, quality maintenance and the closure of existing power plants.”
He said the plan also had no budget attached to it and failed to cater for the most vulnerable in society or to distinguish between different sectors.
Still in Part A, the applicants want the Pretoria high court to urgently order Gordhan and Eskom to produce copies of any agreements concluded about the construction and performance of the Medupi and Kusile power stations and to produce all agreements entered into with independent power producers and documents related to them.
They have urgently asked the court to order the president to immediately produce a number of documents — including the government’s plan to implement the “just energy transition” and agreements reached with any foreign country in respect of SA’s commitments — including financial commitments — to the just energy transition.
Holomisa said the purpose of the urgent part of the case was to lessen the effect of load-shedding on fundamental human rights.
It was “the painful reality that for the foreseeable future, load-shedding will continue to be a daily feature in the lives of all South Africans ... As such its devastating consequences and the growing humanitarian crisis will only get worse”, he said.
Holomisa’s affidavit describes the effect of persistent rolling blackouts on public health facilities, schools, food security, water and small businesses. The application attaches a report by economist Thabi Leoka, who estimates that stage 6 load-shedding results in a loss to the economy of about R4bn a day, said Holomisa.
An affidavit from the adjunct professor of critical care medicine at Chris Hani Baragwanath Hospital, Dr Lufuno Mathivha, set out “the horrendous impact” load-shedding had on the hospital’s ability to provide critical care, he said. The affidavit said there had been instances of patients dying, “where the cause of death may actually have been load-shedding”.
Though there was no express right to electricity in the constitution, the right was implied, said Holomisa.
“Electricity enables and facilitates” the rights to life, dignity, access to health care, access to sufficient food and water, to freedom to trade and economic activity, equality, education and children’s rights, he said.
“When it shuts off the lights, Eskom is one-dimensional in its approach, seeking only to reduce demand on the grid ... There is no regard for loss of life; the impact on schools and food production,” he said.
In Part B, the applicants have asked for a number of final orders, including asking the court to set aside the decisions to close down power stations in Komati, Camden, Hendriena and Grootvlei and to set aside Ramaphosa’s decision to accept an $8.5bn loan from the US and European countries on condition that it closes power stations.
They also want the court to order Gordhan and Eskom to recommission Komati, Camden, Hendriena and Grootvlei and ensure they are “brought into full operation and are connected to the national grid”.
