Is it Possible to Prevent Loadshedding in Critical Sectors Within 60 Days?

On 05 May 2023, the High Court of South Africa, Gauteng Division under case number 005779/2023 (“the matter”), ordered the Minister of the Department of Public Enterprises (“DPE”) to take all reasonable steps within 60 days of the order, to ensure a sufficient supply and generation of electricity to prevent any disturbance of supply due to load-shedding to all public health establishments, public schools and the South African Police Service (“SAPS”).

The Relief Sought

The matter involved a legion of 19 applicants, including the United Democratic Movement (UDM), the National Union of Metal Workers of South Africa (NUMSA), various non-profit organizations, private companies and two medical doctors (“the Applicants”). Furthermore, there were eight (8) respondents in the matter, including Eskom Holdings SOC Limited (“Eskom”), the President of the Republic of South Africa and the Minister of Mineral Resources and Energy.

The Applicants requested the Court for an order against interruption of electricity supply as a result of load-shedding to the following institutions:

• All “public health establishments” as defined in the National Health Act 61 of 2003, including publicly owned hospitals and clinics and other establishments or facilities;
• All “public schools” as defined in the South African School Act 84 of 1996;
• “Electronic communications networks” as defined in the Electronic Communications Act 36 of 2005, the infrastructure necessary for the operation of such and any other infrastructure necessary for the operation of mobile phone and internet networks;
• The “South African Police Service” and “police stations” as envisaged in the South African Police Service Act 68 of 1995;
• Any entity responsible for the provision of water in terms of the National Water Act 36 of 1998; and
• “Micro”, “very small” and “small” businesses as provided for in schedule 1 of the National Small Enterprises Act 102 of 1996.

Moreover, the relief sought further stated that any instruction to a municipality to reduce electricity must include an instruction to exempt the institutions listed above. In the alternative to the exemption, the Minister of DPE must take reasonable steps to procure alternative sources of electricity and/or energy for the institutions.

Is the relief sought possible?

According to paragraphs 185 to 227 of the Applicant’s heads of argument, six (6) explanations as to why the relief sought is impossible were proffered by Eskom namely: Eskom’s financial constraints, insufficient time and the ‘Generation Recovery Plan’, the regulations and statutes which prevent the implementation of the alternative power sources, the Respondents’ refusal or failure to take responsibility for the power crisis, the risk of a national blackout and lastly, the local governments’ roles.

Furthermore, the next segment of this article will briefly expand more on the reasons why the relief sought is impossible, mainly focusing on the issues of the lack of finances, time constraints and the threat of a national blackout.

Concerning the first issue regarding the lack of finances, the cost of not procuring alternative energy for the critical sectors was compared with the cost of load-shedding. To substantiate further, it was submitted by the Applicants that load-shedding costs R500 million per hour at stage 6; R4 billion per day of stage 6; and a total of R1.2 trillion to date, which equates to a quarter of South Africa’s GDP. These figures were uncontested by Eskom in the application. In comparison, it would cost Eskom R400 million to supply a 500kVa generator and R762 million to supply a 1000kVa generator to all 381 public hospitals, a figure amounting to the cost of 48 minutes, and 1 hour and 32 minutes of stage 6 load-shedding respectively. Factoring in the abovementioned costs, it was concluded by the Applicants that providing alternative energy is a sensible investment.

However, because of time constraints, Eskom argued that it would take too long to procure alternative energy in the ways set out by the Applicants. For example, Eskom contended that it would take up to 36 months to isolate critical sectors and instal direct feeder lines. The Applicants argued that with cooperation amongst all role players and the assistance of a planning committee, it should take no longer than six months.

Furthermore, the other main reason put up by the Respondents as to why the exemptions for the critical sectors cannot be implemented is that they are too embedded. This means that if public schools, public hospitals, police stations, etc., were to be exempted then households and businesses surrounding those entities would also have to be relieved of load-shedding. Ultimately, this would mean that load-shedding would be ineffective and there would be a risk of a national blackout. It was argued by the Applicants however that this is a “gross exaggeration” on the part of Eskom. There are ways, so the Applicants argument went, in which even a highly embedded entity can be separated from those surrounding it. These methods include reconfiguring the grid and the installation of smart meters.

Reasons For the Court’s Decision

The court relied on several constitutional and statutory provisions which the Respondents are obligated to comply with. As a starting point, the right to access healthcare is enshrined in section 27 (1)(a) of the Constitution of the Republic of South Africa and disastrous results arise when there is a disruption of electricity supply to healthcare facilities. Consequently, in the most catastrophic situations, the right to life as enshrined in Section 11 of the Constitution becomes compromised, which goes against Section 27(2) of the Constitution, a provision that creates an obligation not to interfere with that right. However, with the implementation of load-shedding, an interference occurs.

In addition to this line of argument, the right to education is enshrined in section 29 (1) of the Constitution of the Republic of South Africa and an interference with this right also occurs with the implementation of load-shedding. To substantiate, the consequences of interrupted power supply are quite predominant in rural or township schools, and the schools often have to close, an aspect which not only deprives learners of education but also robs them of their only meal for the day. This furthers the inequality gap and deprives the pupils of equality of opportunity.

Furthermore, the right to freedom and security as enshrined in section 12 of the Constitution of the Republic of South Africa, creates an obligation to ensure that the South African Police Service (SAPS) can perform their functions. Thus, when police stations are shut down due to no electricity as a consequence of load-shedding, fulfilling this obligation becomes near impossible.

Moreover, the obligations of the State are statutorily prescribed in terms of section 5 (1) read with 5 (2) (ii) of the National Energy Act 34 of 2008 (NEA). The Minister for Mineral Resources and Energy is obliged to take all reasonable steps to ensure that the State provides “energy services” to “all the people” in the country.

The Court concluded that, regardless of what Eskom claimed in its papers, the consequences of policy decisions resulted in the current need for Eskom to continue to implement various levels of load-shedding. As such, there have been repeated breaches by the State of its Constitutional and statutory duties and these breaches are continuing to infringe on citizens’ rights to healthcare, security, and education.

Conclusion

Based on the expert evidence provided by the Applicants, the proposed methods to prevent load-shedding to all the critical sectors, such as isolating those sectors, cannot be done in 60 days. However, where it cannot be done in 60 days, alternative sources of energy must and can be arranged, such as the procurement of generators and solar power.