Eskom's lawyers are expected to continue argument in the Pretoria high court on Wednesday against an application to exempt certain institutions like hospitals from load-shedding because the state utility believes it could present the risk of a grid collapse.
On Monday, the court heard it cannot just “shrug its shoulders” in the face of the egregious human rights violations caused by load-shedding.
The court was hearing an application by the UDM and other political parties, the National Union of Metalworkers of South Africa, NGOs and individuals to exempt certain institutions including hospitals, schools and small businesses from load-shedding. Alternatively, they have asked that these institutions be provided with alternative sources of power, like generators or solar.
Their counsel, Tembeka Ngcukaitobi, said Eskom and the government had not denied load-shedding had breached a number of constitutional rights, focusing on the effects on hospitals and schools. He recounted the affidavit of Prof Lufuno Mathivha, who said people had died in hospitals “in circumstances where the cause of death may have actually been due to load-shedding”, and the Health and Allied Workers Indaba Trade Union, which said “it’s a matter of life and death because the mortality rates go up with every power cut”.
It’s a matter of life and death because the mortality rates go up with every power cut
— Health and Allied Workers Indaba Trade Union
He described how blackouts impacted more severely on schools in townships and villages that had no natural light, saying the constitutional objective of bridging inequalities on our education system were “wholly defeated” by load-shedding.
The government did not dispute that load-shedding meant constitutional violations of a number of rights. In such circumstances, and where there was a clear legal responsibility on the state to provide electricity, the court had to grapple with the problem.
“There is no scope for doing nothing,” said Ngcukaitobi.
But counsel for Eskom, Azhar Bham, said what Ngcukaitobi’s clients wanted the court to order ran the risk of worsening the problem. Bham said Eskom acknowledged load-shedding “impacted” on rights. He acknowledged a history of “a series of bad decisions, misjudgements, incorrect choices, corruption, faults in maintenance”, which was “nothing to be proud of”.
He said the court had to now decide whether what was sought by the applicants would “have the effect not of resolving the problem, but of exacerbating the problem”.
Ngcukaitobi argued the constitution was not suspended during load-shedding. He said the government had itself said load-shedding was going to be an inevitable fact of life until at least 2025. The question then became how was load-shedding to be implemented in a way that was in line with the constitution.
“Does it countenance a scenario in which it [the government] applies load-shedding on an indiscriminate basis? Without regard to the evidence of Prof Mathivha? Without regard to the impact it is having on poor children?”
Ngcukaitobi said what the applicants were asking for was “the essentials, the bare essentials ... it’s not the Rolls-Royce of the human rights world.”
He said Eskom’s warning that if the court were to grant the order it could lead to the collapse of the grid was “complete hyperbole”.
Eskom had argued that the institutions that the applicants wanted exempted were mostly “embedded” in distribution networks which include other customers. Excluding them would mean excluding the other customers on the same distribution lines. This defeated the purpose of load-shedding and risked a collapse of the grid.
But Ngcukaitobi said Eskom’s own expert said it was possible to exempt institutions if the grid was reconfigured — it was only that it would take long and there were cost implications. He argued the courts had previously held that the failure to budget for something could not be an excuse where constitutional violations were foreseeable, as was the case here.
The grid is too sensitive to toy around with relief
— Azhar Bham SC, Eskom
When it came to timing, what was important was that the government made a start in mitigating the impact of load-shedding, not that it must finish, he said.
But Bham said the evidence from people on the ground who manage the grid was “certainly not hyperbole” and should not “be taken lightly”. He said the relief sought now by the applicants in their notice of motion did present the risk of a grid collapse.
And while there was talk of tweaking the order that was sought, by amending the notice of motion, any change would require Eskom to think about it, and answer whether it would be possible to do.
“The grid is too sensitive to toy around with relief,” said Bham.
There was also the option of providing alternative sources of energy, Ngcukaitobi argued. Schools did not care whether they got their power from solar or generators as long as they kept the lights on. He said the state’s answer to his clients on alternative sources was that it was not within the department of public enterprises' legal mandate to provide these.
But, said Ngcukaitobi, the applicants had cited the whole of the government of South Africa in this case because they had anticipated that “this ping-pong blame-shifting would happen”.
Bham’s argument on behalf of Eskom will continue on Wednesday. Counsel for the government is also expected to argue on Wednesday as the hearing continues.
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