In a landmark judgment, the Pretoria High Court has ruled that load-shedding threatens constitutional rights and ordered that power cuts be stopped at public health facilities, schools, and police stations. The court found that the applicants had established a prima facie right and that the risk of irreparable harm to life and well-being was too great to ignore. The power utility Eskom will now have to adhere to an order that requires Public Enterprises Minister Pravin Gordhan to ensure sufficient electricity supply to spare public health facilities, schools, and police stations from power interruptions.
The case was brought by the United Democratic Movement and 18 other applicants, including some high-profile members of political opposition. The relief was granted initially as a temporary order pending the hearing of Part B of the case, where the applicants sought a permanent cessation of load-shedding, which they argued was unconstitutional.
Establishing the Risk of Irreparable Harm
The court found that power cuts at public institutions threaten the right to life, healthcare, security, and education, especially for the elderly and the sick who are most likely to be harmed. The applicants also argued that any relief granted in the form of an interim order could not be revoked, which the court agreed with. Eskom would now have to provide alternative power sources or generators to hospitals, schools, and police stations to prevent irreparable harm.
Reckoning with the History of Load-Shedding
In tracing the history of events that led to load-shedding, the court criticized the government’s lack of action in addressing the electricity crisis. Eskom lacked adequate generating capacity since 2008 and has been unable to remedy the situation since then. This failure to invest in new generating capacity, flawed execution of new build programs, and inadequate plant maintenance, led to the current situation. The court found that the state had repeatedly breached its constitutional and statutory duties, resulting in an infringement of citizens’ rights.
The Applicant Need Not Have Come to Court
President Cyril Ramaphosa’s contention that the applicants need not have come to court but could have raised their concerns in parliament was rejected by the court. It noted that the situation at hospitals had been raised through a parliamentary question earlier this year, but no action was taken. The court also found that dire situations at public health facilities, schools, and police stations demanded immediate attention and that the government’s roadmap for eradicating the electricity crisis was uncertain and did not address the urgent needs of public institutions.
Finding a Way Forward
The court order is wide-ranging and requires the Public Enterprises Minister, Pravin Gordhan, to decide how he is going to rectify the situation. It also allows him to enlist other organs of state to fix the problem. The court noted that other temporary measures could be taken when exempting public institutions from load-shedding would affect a whole suburb or town. The court recognized the inter-relatedness of organs of state acting to promote the constitution and prevent any infringement of citizens’ constitutional rights.
The Final Word
This judgment could have far-reaching consequences for Eskom and its customers. More applicants could come up against Eskom for the same reasons and demand similar relief. The order also places more pressure on Eskom to deliver reliable electricity supply and on the government to address the root problems of the electricity crisis. The question now is how Eskom will respond to the court order, and how long it will take to implement, especially during periods of high electricity demand. Providers of alternative energy sources will also likely position themselves for new opportunities.