By Lehlohonolo Lehana.
President Cyril Ramaphosa has released an opposing affidavit in the case being brought by the United Democratic Movement (UDM) and 18 others, clarifying government’s position on the provision of electricity under the Constitution.
The group wants the high court to declare the African National Congress (ANC)-led government’s response to load shedding as unconstitutional and breaching a number of fundamental human rights.
The case is set to be heard on 20 March in the high court.
In his answering affidavit, Ramaphosa argued that in terms of part B of schedule 4 to the Constitution, electricity and gas reticulation is a competence of local government.
And since there is nothing in the Constitution or any other law that compelled him to provide electricity to the public, he could not be accused of failing to uphold the Constitution because the lights are not staying on.
“It is now accepted that municipalities are in law required to provide water and electricity to their people as a matter of public duty,” Ramaphosa said.
“This duty does not lie with the president or any of the national departments cited herein as respondents.”
Ramaphosa said the Constitution does not prescribe what consequences must flow from the president upholding the Constitution, as section 83 enjoins him to do, and nor can the court prescribe what those must be.
“The mere fact that the president’s best efforts may not have produced the results desired by the applicants in this case does not mean that the president has ‘failed to uphold, defend and respect the constitution as the supreme law of the republic’ as suggested by the applicants’.”
The law gave him no authority to perform or interfere in the executive functions of municipalities, Ramaphosa added.
“Accordingly, if municipalities do not for one reason or another supply electricity to their people, the constitution does not say that the president must go down to local government and do it.”
But the fact that electricity provision was the domain of municipalities, did not mean that the applicants had made out a case against this sphere of government, he said.
Section 4 of the Municipal Systems Act of 2000 provides that municipal councils had a duty to give members of a community “equitable access to the municipal services to which they are entitled”. But this could only apply to electricity as far as it was available.
“If there is no electricity available for one reason or another, equitable access is impossible. The applicants have not made out a case to demonstrate that municipalities have failed to provide equitable access to their people.”
Hence, Ramaphosa said, the applicants cannot sustain their claim that rights promised in the Bill of Rights were violated on an ongoing basis. He also noted that section 152 of the Constitution qualified that municipalities must strive to achieve their obligations within their “financial and administrative capacity”.
“Municipalities do not have the necessary capacity to supply electricity in circumstances where Eskom has determined that load-shedding must be implemented.”
The applicants have asked the court for a declaratory order that Ramaphosa, Eskom, Department of Enterprises and Department of Minerals and energy have contravened their obligation to protect, respect and promote the rights enshrined in the Bill of Rights.
Their application is in two parts.
In the first, they seek an urgent interdict compelling the state to exempt certain sectors from load-shedding to ensure the provision of basic services, including health care, education, policing, water and sanitation.
The parties also ask that the government be ordered to table a plan, within seven days, with steps it will take to end load-shedding, including a maintenance schedule for Eskom.
Meanwhile Intelligence reports obtained by Daily Maverick shows two senior members of Ramaphosa’s Cabinet to four criminal cartels operating inside Eskom. Although they cannot yet reveal the name of the Cabinet ministers for legal reasons, they can divulge that the intelligence links the cartels to the sabotage of Eskom’s power stations and to a programme of political destabilisation.