Electricity Supply is Naturally Connected to the Right to Life & Dignity

The Bill of Rights, as contained in Chapter 2 of the Constitution of the Republic of South Africa, is a cornerstone of democracy in South Africa. It preserves the rights of all people in our country and asserts the democratic values of human dignity, equality, and freedom. Section 7 (2) of the Bill of Rights specifically places an obligation on the State to respect, protect, promote and fulfil the rights in the Bill of Rights.

But what happens when a ‘right’, to be invoked by residents in dire need of electricity, is not expressly contained in Bill of Rights?

The Constitutional Court in the majority judgment of Eskom Holdings SOC Limited v Vaal River Development (Pty) Ltd Others [ (CCT 44/22) [2022] ZACC 44 (23 December 2022)] (“the Vaal judgment” or “the judgment”), on appeal from the High Court, held that the supply of electricity need not be an explicit right in the Bill of Rights in order for residents to be entitled to it. The supply of electricity is “inexorably bound up” [115] with several rights in the Constitution, which include the right to life and the right to dignity. Therefore, there is no need to deliberate on whether residents have a constitutional right to electricity. The reliance and assertion of the other rights within the Bill of Rights disposes of the matter altogether.  

Factual Background

In 2008, Eskom SOC Limited (“Eskom”) concluded a supply agreement with Ngwathe Municipality in terms of which it would supply bulk electricity to the municipality in accordance with the Notified Maximum Demand (“NMD”) stipulated in the supply agreement. The NMD is a contractual value of demand which binds Eskom and the municipalities. In 1981, Eskom concluded a similar supply agreement with Lekwa Municipality.

In 2010, the NMD for Lekwa was increased. The municipalities’ consumption of and need for electricity, however, exceeded the NMD supply levels agreed to. Eskom had been supplying electricity in excess of the contracted NMD to the municipalities for an extended period of time and charging penalties every month to the municipalities. Notwithstanding these penalties, the municipalities have failed to pay Eskom for the electricity supplied to them and remain in serial default.

In 2020, Eskom decided to reduce the bulk electricity supply to the municipalities to the NMD levels set out in the supply agreements. This meant that it would no longer supply electricity in excess of the contracted NMD levels. It notified the municipalities but did not notify the residents. This had a significant impact on essential services, which impact is described in the court papers as a ‘human catastrophe’. The substantial reduction in electricity supply had an adverse effect on the treatment of sewage. The inadequate supply of electricity further resulted in the water purification system malfunctioning. Thus, the Vaal River Development Association (Pty) Ltd and the Lekwa Ratepayers Association (“the associations” or “the residents”) instituted applications before the High Court on behalf of the residents.

Decision of the High Court & Supreme Court of Appeal

The High Court ordered Eskom to increase, alternatively to restore the maximum electricity load supply to the level supplied prior to its decision pending final adjudication of the Associations’ application for a review of Eskom’s decision in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) and/or the principle of legality. Aggrieved, Eskom sought leave to appeal to the Supreme Court of Appeal (“SCA”). The SCA confirmed the High Court’s decision and the appeal was dismissed.

Section 4 (1) and 6 (2) (c) of PAJA

Section 4 (1) of PAJA gives an administrator various avenues to choose from, in order to give effect to procedurally fair administrative action. This mandatory election arises in cases where an administrative action materially and adversely affects the rights of the public, such as the decision to substantially reduce electricity supply. According to section 6 (2) (c) of PAJA, a court or tribunal has the power to judicially review an administrative action if the action was procedurally unfair.

Requirements for an interim interdict

The Constitutional Court held that a litigant seeking an interim interdict must show the following: (i) a prima facie right even if it is open to some doubt; (ii) a reasonable apprehension of irreparable and imminent harm to the right if an interdict is not granted; (iii) that the balance of convenience favours the grant of an interim interdict; and (iv) that the applicant has no other satisfactory remedy.

Constitutional Court’s decision

The main issue that the Constitutional Court had to answer was whether, pending finalisation of intended review proceedings, the Constitutional Court could allow for Eskom’s decision to lower the bulk electricity supply to the municipalities (for onward passing to the residents) to persist.

For purposes of establishing whether the residents had established a prima facie right, the Constitutional Court ruled that the mere fact that Eskom made a decision to substantially reduce the electricity, without prior notice to the residents, was sufficient to show that the residents have a viable case in the intended PAJA review. This would be a case established on section 6(2)(c) read with section 4(1) of PAJA. On this basis, a prima facie right was created for the residents to rely on.

In considering whether there is a reasonable apprehension of irreparable harm, the Constitutional Court held that the substantial reduction of electricity supply violated several rights of the Bill of Rights. These rights were the right to life, the right to dignity, the right to access to water, the right to basic education and the right to an environment that is not harmful to health or wellbeing. As such, a reasonable apprehension of irreparable harm was present.

Eskom had been providing the electricity to the municipalities for years in excess of the NMD. A further similar provision, at an interim stage pending the outcome of a review application was not impossible for Eskom. The continued reduction of electricity would prejudice the residents more than it would prejudice Eskom.  The balance of convenience thus favoured the residents.

The associations averred that there was no other satisfactory remedy. Eskom did not appeal against the finding that there was no other satisfactory remedy. Therefore, it was not open for the Court to determine the factual question whether it was practical for the residents to pursue other remedies.

Conclusion

On the face of it, the Vaal judgment is about the requirements for a court to grant urgent interim relief to a litigant, pending finalisation of a intended review in terms of PAJA. However, the pronouncements by the Honourable Justice Madlanga J in the majority judgment speak to much broader societal issues and has entrenched important principles in South African jurisprudence. The Vaal judgment vehemently rejects the idea that privity must exist between residents and Eskom, in order for residents to enforce a right to the supply of electricity. The judgment reinforces the fact that, one single action like the refusal and/or the failure by an organ of state to provide electricity, can trample on multiple rights in the Bill of Rights.[81] It will be interesting to see what legal developments will flow from the judgment, given the country’s current energy crisis.