In a judgment that might seem bizarre to electricity-starved South Africans, residents of the Mafube Local Municipality in the Free State will now be left without access to solar energy that allowed them to reduce load-shedding in the area.
This follows a ruling by the high court in Johannesburg on Thursday barring a private company that manages the distribution of electricity to the municipality from implement-ing “self-load-shedding” and voiding “certain load-shedding zones in daylight hours” when the municipality has excess capacity from an alternative solar energy source.
The company, Rural Maintenance Free State — a subsidiary of Rural Maintenance — has a 25-year contract with the municipality (which serves the towns of Frankfort, Tweeling and Cornelia) to manage and operate electricity distribution on its behalf.
In addition to managing electricity supplied by Eskom, the company also has the right to use solar generation capacity from an embedded solar facility privately owned by farmers, businesses and community members, to the benefit of the municipality.
Eskom granted the request for “self-load-shedding” in January, subject to a three-month trial period, which would be reviewed by way of monthly reporting by Rural Maintenance to the utility. A dispute arose after Eskom threatened to interfere with the “self-load-shedding” being implemented at the municipality.
Legal representatives for Rural Maintenance, Shepstone & Wylie Attorneys, said that according to Eskom’s affidavit, granting relief to Rural Maintenance could set a precedent for other Eskom customers to seek similar relief.
“Eskom argued that circumstances like Frankfort on a larger scale would prevent Eskom from fulfilling its statutory duty to manage the grid and could result in a national blackout with catastrophic consequences for the entire country.
“No documentary or expert evidence of this possibility was put forward by Eskom,” the attorneys said.
In turn, Rural Maintenance argued that the system it was using to implement self-load-shedding had no negative effect on the national grid because its connection was downstream from that of Eskom’s point of connection, enabling it to keep the electricity supply of the critical loads intact during load-shedding.
However, the case was dismissed on a technicality after Eskom raised the issue of authority. Mafube municipality had failed to provide an affidavit proving that it supported and authorised the initiation of litigation by Rural Maintenance.
“In light of the challenge of authority as raised by Eskom, I do not intend to delve into the issues of urgency and merits of the matter,” Johannesburg high court judge Edwin Molahlehi said in the judgment.
Deirdre Venter, a partner at Shepstone & Wylie Attorneys who represented Rural Maintenance, told Business Day that the Mafube municipality confirmed to her in writing that it wanted nothing to do with the application.
“As a result of that, Eskom took the technical point that because the municipality is not before court my clients, Rural Maintenance, could not get the relief they seek. The judge did not look at the merits, he hasn’t looked at the benefit [this arrangement] brought to the community,” Venter said.
The upshot of this judgment and of Eskom and the municipality’s approach is that alternative energy available from the solar farm can’t be used to mitigate load-shedding to the town.
— Deirdre Venter, Shepstone & Wylie Attorneys
According to Venter, they did not know why the municipality did not want to be involved in the application.
Without the support of the municipality, they would not be able to appeal against the ruling, she said.
“The upshot of this judgment and of Eskom and the municipality’s approach is that alternative energy available from the solar farm can’t be used to mitigate load-shedding to the town.”
Morné Mostert, manager for local government affairs for AfriForum, which was admitted to the proceedings as amicus curiae (impartial adviser), said it was disappointing that the application was dismissed due to a procedural problem because the merits of the case were strong.
“It would be very beneficial to municipalities and various businesses in SA to add generation capacity to the grid and to be able to manage this accordingly to alleviate the crisis of load-shedding,” Mostert said.
The Mafube municipality, he said, was also struggling to provide basic services to businesses and communities in this area.
“They are struggling with water services delivery. We have a separate court case where we have a judgment against the municipality regarding sewage works which are releasing polluting effluent into the rivers.”
In addition, said Mostert, the municipality is struggling to do proper debt collection, and the primary way it is generating funds at this stage is through Rural Maintenance collecting payments for the electricity that is sold to consumers in the area.
“The municipality at this stage is not delivering on any of the services it is supposed to, which is a reminder to the people living in the area that Mafube municipality is not there to support the consumers and communities,” he said.
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