By Lehlohonolo Lehana.
Arguing that the government already knew in 1999 that demand for electricity would outstrip supply, counsel for a group of political parties, trade unions and businesses asked the Pretoria High Court on Monday to protect the constitutional rights of South Africans hard hit by load shedding.
The UDM, Inkatha Freedom Party (IFP), ActionSA, Numsa and 15 others want government to be legally bound to provide alternative electricity sources to schools, police stations and hospitals.
“The harm we have shown is irreparable, “counsel for most of the applicants, Tembeka Ngcukaitobi SC, argued.
“This crisis was entirely foreseeable, and it has immediate implications for constitutional rights…” he said. “We are asking for bare essentials. This [case] is not the Rolls-Royce of the human rights world, “he added.
He said there were alternative ways to manage the crisis without causing a total blackout.
“We must arrest the unfolding human catastrophe, “he said.
Ngcukaitobi said Eskom’s defence that the forcible suspension of load shedding [even in some sectors] can cause a national blackout was “completely hyperbolic”.
Advocate Azhar Bham SC said Eskom could not dispute the devastating consequences of load shedding, adding that these were the results of a series of bad decisions, misjudgments and faults.
But, he added, “this is a time when people must listen to each other. The [electricity] grid is too sensitive to play around with [court-ordered] relief. Every solution will need an explanation. You must assess risk against consequence.”
Proceedings kicked off in the Pretoria High Court today, with lawyers for the ActionSA and UDM wanting to narrow down the relief that they seek from the court.
ActionSA’s lawyer, Advocate Bruce Dyke said: “That within the 60-day period, that some form of back-up electricity is supplied to the 93 public hospitals, which appear to be common cause on the papers, do not have electricity. The same applies to the 85 police stations.”
The UDM wanted the courts to declare that President Cyril Ramaphosa has failed in his constitutional obligation to provide electricity for the country.
The UDM also wanted small businesses to be provided with alternative resources such as generators and solar panels.
Lawyer for government, Advocate Kennedy Tsatsawane, has argued that the energy action plan is currently being implemented and that can be seen through the appointment of a minister of electricity.
But Judge Norman Davis pointed out to Tsatsawane how former Eskom CEO Andre de Ruyter had been asking for between 4,000 and 6,000 more megawatts to be added to the grid for years now.
The UDM’s lawyers argued that the generators that were currently being used in the country’s hospitals can not handle the lengthy bouts of load shedding, but arguing for government, Advocate Adila Hassim, said that more generators were not the answer.
“The solution to that problem is to provide more diesel so that the generators can run for longer,” Hassim said.
While 85 police stations remain without generators, Advocate Hassim said that this did not mean that there were no plans to provide them in the future.
The case involves different arms of government as respondents, including, the Presidency, the National Energy Regulator of South Africa (Nersa), the Department of Public Enterprises (DPE), the department of Mineral Resources and Energy, (DMRE), and the Eskom management and board.
Judge Davis ruled in government’s favour: “It would result in further delays of the matter, it would result in a party being obliged to within the course of an afternoon procure its witnesses and answer and there is no guarantee that such answers might be forthcoming by tomorrow.”
This means that the relief sought will remain that government must be legally obliged to provide alternative electricity supply in the form of generators and solar panels.