Cape Town - Government and Eskom were lambasted in court on Monday for inadequate load shedding actions, ignoring alarm bells which had been ringing since 1998 over the energy crisis, their failure to provide South Africa with a stable energy supply and the subsequent infringement of human rights.
The court action took place in the Pretoria High Court and was being pursued by 19 unions and political parties including ActionSA, the UDM, IFP, Build One SA (Bosa) and the National Union of Metalworkers of SA (Numsa).
They sought to declare the government’s response to load shedding as unconstitutional and in breach of fundamental human rights, as well as to ask that certain sectors be exempted from load shedding.
Advocate Tembeka Ngcukaitobi, representing the applicants, argued that in spite of knowing since 1998 that Eskom would run out of electricity surplus by 2007, the government and Eskom failed to to create new generation capacity and maintain the national grid.
In part A of this court case, he said the applicants wanted the sectors relating to safety and security; health; education; water and sanitation; small and medium businesses; police and communication networks to be excluded from load shedding because allowing these sectors to be without power was infringing upon numerous human rights.
Respondents in this case include Eskom, President Cyril Ramaphosa, Energy Minister Gwede Mantashe and his director-general, Public Enterprises Minister Pravin Gordhan and his director-general, the National Energy Regulator of South Africa (Nersa), and the government.
Ngcukaitobi referenced former Eskom CEO André de Ruyter’s 153-page affidavit about the load-shedding crisis.
“The immediate cause of load shedding is insufficient generation capacity … Since 1998, there has been insufficient investment in new generation capacity, a responsibility vested in the minister of minerals and energy. As a result, Eskom has had to operate with insufficient generation capacity,” De Ruyter said.
When it comes to increasing the generation capacity of available electricity, Ngcukaitobi said the party at fault was the government as it took away the regulatory power from Eskom and gave it to itself in the Electricity Regulation Act, to the energy minister so that only the government could authorise the generation of electricity.
Ngcukaitobi said: “Government has actually sat back, folded arms and done nothing … It knew from as early as 1999 that the country would run out of surplus electricity by 2007 (after which load shedding was implemented for the first time).
“They had this knowledge two decades ago, they knew that had to ensure enough generation capacity to cater for current needs,” Ngcukaitobi said.
Sbu Zondi, national spokesperson of Bosa, an applicant, said: “Relying on the details contained in the responding affidavit from De Ruyter, Ngcukaitobi proved that this derogation of their duty extends as far back as 1999, with maintenance ignored and new builds mooted in 2007, with the infamous Hitachi deal, but only commenced in 2015 (Medupi) and 2017 (Khusile) and still ongoing.”
The case resumes in Pretoria today with the government expected to respond to the arguments.
Zondi said lawyer Azhar Bham, for Eskom, in a preview of proceedings today, indicated he would not be opposing the contention human rights had been violated.