The second day of the load-shedding case brought by the UDM and others saw them make a significant pivot in their case: they are no longer asking the court to order Eskom to exempt certain institutions, including schools, hospitals, police stations and small businesses, from load- shedding. Instead the applicants are only asking the court to order the government to provide these institutions with alternative sources of energy like generators or solar.
The change means that, for now, Eskom is out of the case and it remains a dispute between the government and the applicants, which include other opposition parties, the national union of metalworkers of South Africa, NGOs and individuals.
The order the applicants continue to pursue was originally the alternative option to the exemptions from load-shedding they wanted and which Eskom had warned were not practical and risked collapsing the grid. On Monday, counsel for the applicants, Tembeka Ngcukaitobi SC, said his clients did not mind where the electricity came from as long as the lights stayed on.
Government’s counsel Kennedy Tsatsawane SC said there was no legal or policy basis for the minister of public enterprises to be ordered to provide alternative energy sources. It was “not the function of the DPE” to do that. And while the applicants had said they had cited the government as a whole, “that’s not how it works”, said Tsatsawane.
When a court made an order that directed the government to act, it had to make the order against the relevant department or minister, he said.
But Ngcukaitobi argued that the duty to provide uninterrupted electricity fell on the government as a whole and that the minister of public enterprises was the representative of the government as “nomine officio”. When government failed in its duty, it could say “no, it’s the wrong minister, look at this minister”.
Tsatsawane argued that the order sought was also not capable of practical implementation. Court orders had to be executable immediately he said. But this order was not. For example, to see who would fall within the scope of the order required the minister of public enterprises to first identify who the small businesses were who fell within the court order. “You only have to look at the schedule to see it is impossible for the minister of public enterprises to do that,” he said.
Tsatsawane said government had a plan to address load-shedding and that if the court granted the order sought by the applicants it would disrupt plans that were already in place. But he was questioned intensely on this by the bench, with judge Norman Davis asking whether the government’s plan gave specific time frames with quantifiable outcomes to be reached within those time frames.
Giving the example of police stations, Davis said the government had acknowledged that there were 85 police stations that did not have generators, yet said nothing concrete about when those police stations would get generators. He suggested that the plan in many places “always has an open end”.
Adila Hassim SC, also for the government, argued that by granting the order the applicants sought, the court would be substituting the government’s policy on what were vulnerable sectors for a judicially determined one; and that courts needed to be careful entering this territory.
But Ngcukaitobi said that some of the institutions identified, like hospitals, schools and police stations, were “self-evidently priority sectors”. Even the government had identified them as such in their disaster regulations, he said.
Hassim repeated that there was a plan by government to address the energy crisis and that it did have specific time frames in place — including for 2023 and 2024. There was no evidence before the court to say that these promises would not be met, she said. She said the court had to be satisfied that the government was failing to deal with the problem before it made orders with budgetary implications for the government.
In the morning, the applicants also sought to amend even their alternative relief — narrowing the institutions to which the order would apply – to specific numbers of hospitals, schools and police stations and setting out a court-supervised process by which the government could identify which small businesses that would require state assistance. But the application to amend was objected to by Tsatsawane, who said the amendment would prejudice the government’s case. It was refused by the court.
Argument then proceeded on the basis that the case was now only about whether the minister of public enterprises must procure alternative sources of energy for the institutions originally listed by the applicants. These included all public health institutions, all public schools, electronic communication networks, police stations, any entity that provides water in terms of the National Water Act, and micro, very small and small businesses that trade in perishable goods as set out in the schedule to National Small Enterprises Act.
Argument will continue on Thursday.
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