The Uphill Battle to Safeguard Essential Services from Load Shedding

South African President Cyril Ramaphosa, alongside Public Enterprises Minister Pravin Gordhan, is seeking to challenge a recent court mandate demanding an exemption of key public services from electricity blackouts, a move they deem unrealistic.

The Appeal Unfolds

In response to a court ruling passed on 5th May, Ramaphosa and Gordhan have filed for leave to appeal the directive, which necessitates that all hospitals, clinics, schools, and police stations are exempt from power disruptions resulting from load shedding. Judge Norman Davis instructed the minister to take “all reasonable steps” within a two-month period to shield public health facilities, state-run schools, and the South African Police Service from electricity cuts.

The court’s decision was precipitated by a legal endeavor spearheaded by the United Democratic Movement (UDM), Inkatha Freedom Party, Action SA, the National Union of Metalworkers, among others. The aim: to protect hospitals and clinics, 23,000 public schools, and police stations from the clutches of load shedding. Alongside Gordhan, Eskom, the National Energy Regulator of South Africa, and others are listed as respondents, with Ramaphosa and the South African government designated as the fourth and eighth respondents respectively.

Rationale for Appeal

The primary reasons underlying the appeal revolve around the perceived vagueness of the order, its deemed impossibility of implementation, its alleged breach of the rule of law, and a perceived infringement of the separation of powers principle.

Among the various arguments presented, the respondents posited that the court erred in its judgment that the respondents had not allocated budgetary resources to secure a sustainable electricity supply. They further maintain that adhering to the expansive scope of the court’s directive would necessitate drastic revisions of the state’s budget within the stipulated 60-day timeframe, an endeavor deemed unattainable due to requisite processes and inter-ministerial coordination.

Unfeasibility and Lack of Clarity

Gordhan argues the order’s lack of clarity regarding the definition of a “reasonable” step and the exact measures to be taken. He further questions the presumption that he, as a minister, possesses the capacity and jurisdiction to guarantee an uninterrupted electricity supply to the facilities in question.

The respondents also object to the court’s dismissal of generators as a viable solution, maintaining that alternative solutions such as solar PV panels necessitate a longer installation period exceeding the 60-day window. They also contend the multi-faceted causes of the energy crisis, implying that a coordinated response across multiple government branches is crucial, rendering the fulfilment of the court order in 60 days by Gordhan alone, implausible.

The respondents further argue that the directive calls for actions beyond Gordhan’s purview.

Presidential spokesperson, Vincent Magwenya, voiced concerns about the judgment’s potential impact on grid stability following the initial ruling.

This appeal application relates to part A of the case. The UDM and other parties are also striving to hold President Ramaphosa legally accountable for the human toll of load shedding. The hearing for part B is slated for September.