Legal challenges are being launched on multiple fronts against Eskom, the government and the energy regulator as South Africans reach the end of their tether with disruptive power cuts that have continued to escalate in severity over the past six months.
Public enterprises minister Pravin Gordhan and outgoing Eskom CEO André de Ruyter could be facing court action from opposition parties and organised labour over failing to “responsibly manage the grid, resulting in material breaches of [certain] constitutional rights”.
Late on Monday, Eskom cancelled the first scheduled media briefing for the year only hours before De Ruyter was due to update journalists on the challenges at the state-owned power company that have led to almost a week of stage 6 load-shedding, leaving businesses and households without power for up to 10 hours a day.
The briefing was postponed due to emergency engagements between Eskom management and President Cyril Ramaphosa, who cancelled his trip to the World Economic Forum gathering in Davos, Switzerland, this week “due to the ongoing energy crisis”.
Presidency spokesperson Vincent Magwenya said Ramaphosa would continue to hold meetings this week with the national energy crisis committee, the Eskom board and management team, labour organisations and business leaders “to broaden the understanding of the issues impacting Eskom and provide an update on broader efforts aimed at stabilising our grid”.
Magwenya said: “The president has always recognised that SA has an energy crisis. What he is doing now is to scale up the level of effort from all areas of government and Eskom so that we can mitigate the levels of load-shedding.”
A senior business leader who attended a meeting and who spoke on condition of anonymity, said: “We left rather deflated, even angry, there were no reassurances for business of political and other problems being dealt with by the president to end this crisis”.
Eskom did announce on Monday that it would downgrade load-shedding to stages 4 and 5 from Tuesday morning because it expected to return 14 generation units to service during the week. The utility was also able to procure 50-million litres of diesel in early January, which it will use to power emergency generation units.
“This fuel will be utilised sparingly to manage the pumped storage dam levels and to limit the amount of load-shedding during the day,” Eskom said.
A decision last week by the National Energy Regulator of SA (Nersa), giving Eskom approval to increase the standard electricity tariff by about 18% this year and another 12% in 2024 seems, however, to have been the last straw for many South Africans.
South Africans had for most of last year already been battling rising interest rates, high inflation, rampant unemployment and some of the deepest and longest-running periods of load-shedding to date.
A group of law firms representing opposition parties, organised labour and civil society organisations and individual business owners are readying to take the government and Eskom to court for their handling of the energy crisis.
Siphile Buthelezi of Buthelezi Vilakazi Inc, one of the attorneys who was instructed by clients to demand that the supply of electricity is stabilised, told Business Day that a letter of demand was sent to Gordhan and De Ruyter on Monday.
It states that the government and Eskom have been too slow in introducing reform in the energy sector, despite being aware of the impact of load-shedding from as early as 2007.
The list of clients includes Bantu Holomisa as leader of the UDM; Mmusi Maimane, founder of the new political party Build One SA; the IFP; the National Union of Metalworkers and owners of property and farming businesses.
“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 letter, which has been seen by Business Day, states.
Tembeka Ngcukaitobi, who is now on brief to represent some of the clients in this matter, is not able to further comment on the content of the letter, but he told Sunday newspaper Rapport that the legal action was aimed at compelling the government to make public what plans it had to stop load-shedding.
Load-shedding has deprived South Africans of some of their constitutional rights, Buthelezi said. This included the right to freedom of trade, occupation and profession, the right to education and food, the right to life and health care, and the right to water and basic sanitation.
Some of the demands made in the letter are for the state to develop and to make public a clear plan to end load-shedding as well as a timetable setting out when load-shedding will end; and to halt the implementation of the 18.65% tariff increase granted to Eskom by Nersa pending the determination of the court challenge.
The group is also demanding that the state commit to compensate everyone who has suffered quantifiable losses because of load-shedding.
“We have given government until Friday to respond, but in the meantime we are proceeding with the preparation of court papers that we will use to approach the court by Tuesday or Wednesday next week,” Buthelezi said.
The DA is planning its own legal action. John Steenhuisen, leader of the DA, told Business Day they were preparing a legal challenge to the “hyperinflationary Nersa increase, which we regard as unreasonable and irrational.
“Furthermore [we will] challenge Nersa’s inability to deregulate the electricity [sector] and facilitate the bringing on line of renewables and private sector players.”
The party is organising a march to the ANC’s headquarters at Luthuli House on January 25 against high electricity prices and the energy crisis.
‘Bad policy’
Elaborating on the reason for the planned march, Steenhuisen said the energy crisis was “not an Eskom problem, but an ANC problem.
“It is years of bad policy decisions, deployed cadres, dodgy tenders and broken promises that have all emanated from Luthuli House that have landed us in this terrible situation.”
Nersa is also in the firing line of trade union Solidarity, which is preparing to file an appeal against the regulator’s most recent Eskom tariff decisions. The trade union, which is one of the unions that represent workers at Eskom, will also launch a request in terms of the Promotion of Access to Information Act, in a bid to force Nersa to disclose information that could explain “the bottleneck in processing private power generation approval applications”.
Anton van der Bijl, head of legal matters at Solidarity, told Business Day that they want to see frequent and detailed information published by Nersa showing the number of applications for private power generation installations, alongside the number of approved applications and reasons for approval or refusal.
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