A massive interim court victory on load-shedding by the UDM in May turned out to be short-lived on Monday after it withdrew its long-term court case on load-shedding.
The withdrawal had the effect of cancelling the court’s interim order that schools, hospitals and police stations should be shielded from load-shedding.
The UDM’s last-minute abandonment of its load-shedding case was an unexpected end to a case that began with a bang when the UDM, other political parties, NGOs and trade union Numsa urgently approached the high court in two parts.
In part A, they sought an interim order about exempting certain critical institutions from load-shedding, which Eskom said could collapse the grid. In May, they obtained a part of what they sought: the Pretoria high court ordered that, within 60 days of its order, the minister of public enterprises shall take “all reasonable steps” to ensure a sufficient supply or generation of power for state schools, hospitals, clinics and police stations to prevent interruption by load-shedding.
The order was yet to be implemented because the government applied to appeal and that appeal has not yet been heard. The victory was also an interim one and the order was only to last until part B, in which the UDM were seeking various permanent orders on the energy crisis.
Part B was meant to be heard on Monday in the Pretoria high court. Instead, counsel for the UDM was grilled by the bench for seeking — “unilaterally”, said the court — to remove part B of their load-shedding court case from the court roll — despite agreeing to Monday’s hearing date.
The court dates had, in a process management by the deputy judge president, been agreed to by all the parties. But on Monday the applicants were not ready to proceed. A week earlier they sought to remove the case from the court roll.
After hearing argument, the court ruled that the notice of removal was an “irregular step”. This meant the UDM applicants had to either carry on with the case or withdraw.
The UDM has proceeded without due regard to the other parties and also the administration of this court ... they have only themselves to blame.
— Norman Davis, judge
Their counsel, Lerato Moela, then asked for “three minutes to take an instruction”. He then asked that the DA proceed with its own case while he obtained a “firm instruction”.
The DA’s separate case on load-shedding was scheduled to be heard simultaneously with the UDM case as it covers much of the same ground. After the DA argued and the lunch break, Moela then said he had been instructed to withdraw.
The UDM applicants had not wanted to proceed with part B on Monday because they wanted certain documents from the government, which they said would shed light on corruption at Eskom’s Kusile and Medupi power plants. They also wanted documents on government's decision to “accept $8.5bn in loans from the US and other European countries with the condition that SA will close down its power stations”. They first tried to go to court to obtain these documents but were refused. They then said they would apply to appeal this order that refused them the documents.
But they never applied for leave to appeal. “Nothing has been filed. Not in June, not in July, not in August, not in September,” said judge Norman Davis in court on Monday morning. Moela initially told the court that the application for leave to appeal was imminent and that it was expected to be filed by close of business on Monday.
But counsel for the government, Adila Hassim SC, said the UDM applicants kept saying they intended to apply for leave to appeal yet never did. Even today they said they were intending to apply to appeal, she said. “It’s the view of the government respondents that [they] are not serious, why do they keep intending?”
Eskom’s counsel Azhar Bham SC said the UDM applicants' conduct in the litigation showed “disdain for the judicial process”.
Moela said his clients had written to the parties on the other side asking for their consent to removing the case from the roll and got no response. He said this was taken as tacit consent. It was only after the removal notice was filed that they all objected, he said.
In ruling that the removal notice was an irregular step, Davis said it was effectively a postponement application “in the guise of a removal” notice. It was therefore subject to the discretion of the court.
He said the UDM applicants had not provided the court with “any reason” for why they had not “timeously” sought to appeal the court’s decision on the documents they wanted. An application for leave to appeal was now way out of time, he added.
He said it was not in the interests of justice for the DA’s case to be heard at a different time to the UDM applicants’ case, since they covered similar terrain. The DA would be prejudiced by a postponement, he said.
“The UDM has proceeded without due regard to the other parties and also the administration of this court ... they have only themselves to blame,” he said.
Eskom and the government asked for a punitive costs order against the UDM applicants. On Tuesday, the court will continue to hear the DA’s case on load-shedding and a tariff increase by the energy regulator Nersa.
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