Gatvol citizens threaten Eskom and government with legal action, demand stop to rolling blackouts

16 Jan 2023

Several South African politicians and business people have instructed a legal team from seven law firms to demand that the government stops cutting the country’s power. If this cannot be done, they want an explanation. The group also wants fair compensation for the damage caused by rolling blackouts and for the government to play open cards about South Africa’s energy crisis.

The South African government and Eskom have until the end of the week to respond to a legal letter demanding that an end be put to load shedding – or explain why it cannot be done.

The letter is addressed to Minister of Public Enterprises Pravin Gordhan and Eskom CEO André de Ruyter.

Eskom spokesperson Sikonathi Mantshantsha said he would check on Tuesday morning to see if their legal department had received the letter.

The power utility cancelled a media briefing, scheduled for 5pm on Monday, due to a meeting with President Cyril Ramaphosa.

Ramaphosa cancelled his plans to attend the World Economic Forum’s meeting in Davos and remained in the country to deal with the electricity crisis.

Stage 6 load shedding was implemented on 11 January. Mantshantsha said Eskom would reduce this to stages 4 and 5 from Tuesday.

According to the letter, seven law firms have received instructions to demand “that the supply of electricity is stabilised forthwith”.

The legal team has indicated they will file papers with the high court unless the government gives a set of undertakings by Friday, 20 January.

These are:

That there will be no load shedding without procedural fairness and a fair opportunity to make alternative arrangements for affected persons and businesses;

That load shedding will stop with immediate effect, and if not, a full explanation about why the government is unable to stop load shedding with immediate effect;

In the alternative, the government must provide a specific timetable for when load shedding will end;

That the state will develop and make publicly available a clear plan to end load shedding, which plan must include the resources available to ensure that it is realised;

That the 18.65% (electricity tariff) increase granted by Nersa will not be implemented pending the determination of the court challenge which our clients intend to institute;

That the state will explain what the challenges are that are driving the energy crisis and what solutions are implemented to solve it; and

The state will commit to compensating everyone who has suffered quantifiable financial losses because of load shedding.

The following people are identified in the letter as the clients instructing the legal team: General Bantu Holomisa, president of the United Democratic Movement; Mmusi Maimane, founder of Build One South Africa; the Inkatha Freedom Party and the National Union of Metalworkers of South Africa (Numsa).

Other clients include Lukhona Mnguni; Phiwe Mehlo, the owner of Ikasi Farming (a small-scale broiler business in East London); Ntsikie Mgayiya Real Estate (Pty) Ltd; The Circle, a voluntary active citizenship organisation with members in Cape Town, Eastern Cape, Gauteng and KwaZulu-Natal; Mustard Seed Foundation, a Christian family foundation registered as a non-profit organisation, and Zintle Ncalo, director of Fula Property Investments, a printing and branding company in Mthatha.

Read in Daily Maverick: “National shutdown threat in protest against Eskom’s rolling blackouts and tariff hikes — Ramaphosa cancels Davos trip”

Holomisa said he was compelled to seek clarity on the situation because of “the continuous promises and shifting of goalposts by the government to address the shortage of supply of electricity by Eskom”.

“We, for the last seven or eight years, have been promised that the government would address the Eskom problem. We therefore demand that there be certainty in this regard.”

The letter explains the catastrophic impact that rolling blackouts are having on several sectors in the country, and emphasises that vulnerable communities are left to fend for themselves because they cannot afford solar installations or generators.

“Persistent rolling blackouts have dogged the nation’s electricity supply since approximately the second half of 2007. It continues to the present, with many reasons being furnished for the continuous, protracted shutdowns in supply. The impact has been, among others, an economic noose around South Africa’s growth prospects,” the letter begins, explaining the reason for the legal action.

“Notwithstanding the debilitating impact of load shedding, apparent to the state since 2007, energy sector reforms have been slow, if not non-existent.

“The most vulnerable among us are most affected, including school children, patients in public hospitals, small business enterprises in the tourism and other sectors, and the farming sector, to mention a few.

“Continuous blackouts have become so commonplace and their damaging impact so ubiquitous that electricity, once a reasonably accessible commodity, is now the preserve of the rich.”

The letter says it cannot be disputed that no reasonable measures have been taken to provide vulnerable South Africans with adequate, reliable energy.

“In so doing, the state has contravened its duty to provide energy as imposed by the Constitution, national legislation, and contract… South Africans have a legitimate expectation to demand that power is available, affordable, reliable, and where appropriate, clean. It is, of course, trite that the biggest challenge in meeting these demands is the scale, and that the only way to counter the problems associated with the amount of energy the nation demands is for the state – Eskom and the Ministry – to efficiently manage the electrical grid,” it continues.

Read in Daily Maverick: “Eskom gets tariff hike while Ramaphosa ‘deeply regrets’ Stage 6 rolling blackouts”

“Our clients report that many small businesses have buckled under the strain of load shedding. They report that these entities often miss deadlines, put up with inappropriate conditions such as stock decline and wastage, and have to deal with the disappointment of their customers when they have to turn them away as they have no power to accommodate them.”

The letter also highlights the following issues caused by rolling blackouts as significant problems for small and medium businesses and communities:

A lack of Wi-Fi during load shedding;

Mobile networks are also affected by load shedding, so there is no escaping time offline;

Staff morale and productivity are negatively affected;

ATMs that are out of order during load shedding affect retail businesses and restaurants;

Despite load shedding schedules, there still are legitimate concerns about the impact of emergency and unplanned outages negatively affecting businesses’ ability to forecast and plan;

Restaurants and stores rely on electricity and can’t trade during load shedding;

Equipment is damaged;

Traffic woes are made worse; and

Load shedding causes significant security threats, including shoplifting, theft, compromised digital security systems, and the shutdown of firewalls.

At the moment, the letter continues, the only solution is for small businesses to get solar panels and generators, which they cannot afford. As a result, many are closing their doors.

“We are instructed that the prejudice is due only to the unreliable electricity supply and the protracted power outages occasioned by the ever-increasing number of hours per day that they are left without power.”

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The letter also highlights that load shedding infringed on children’s rights to basic education as well as adult education, as it is disruptive to teaching.

It emphasises the “catastrophic” impact load shedding was having on the health sector and how it infringes on the rights to food security, access to clean water and basic sanitation.

The courts cannot function optimally and crime is increasing.

“Combined with climate change and shortages in potable water, the state’s failure to manage the impact of load shedding is nothing but a dereliction of duty.”

“The Constitutional Court has affirmed its role to supply electricity to ensure the economic and social; the well-being of the people. It affirmed further that Eskom could not unilaterally reduce the bulk electricity it supplies,” the letter continues.

“Ordinary South Africans have a right to power or an alternative source of power. Eskom was created to give effect to that right. The impact of the unilateral reduction in load capacity has been to withhold electricity from municipalities, which in turn cannot distribute powers to ratepayers… undermining the plethora of constitutional rights,” the letter continued.

The legal team also made it clear that they will ask the court to stop the implementation of a recent increase in electricity tariffs of 18.65%. It is described as “irrational” in the letter.

The letter also seeks clarity on South Africa’s agreement with the United States to “shift from coal”.

“Our clients do not understand the nature of the commitment that the country has entered into with the United States of America. This is particularly so because it has also been reported that South Africa’s coal exports have increased by 700%.

“The state has been extremely opaque and inconsistent in relation to its actual plans and policy.

“The Minister of Minerals and Energy has also publicly stated that any energy policy for South Africa must include coal. Our clients demand to know whether or not there is a decision taken by the government or anyone to shift from coal.”

Numsa also highlighted their concerns over the closures of power stations and further employment.

Read in Daily Maverick: “After the Bell: The problem with Eskom is that it’s not just Eskom”

“In the absence of an alternative plan, which is rational, reasonable and implementable, the government cannot close down power stations, leaving the country without electricity and reducing the energy availability ratio, and at the same time contributing to unemployment and deepening levels of poverty…

“If the government’s decision is to close down power stations, this must be accompanied by a plan to address the consequences of such closure on jobs and energy availability.

“In the absence of such an alternative plan, the government is obliged to ensure that the power stations return to functionality to produce the required levels of energy availability,” the letter continues.

The government has yet to respond to these demands.

Ramaphosa’s spokesperson, Vincent Magwenya, confirmed that the president was having an online meeting with the business sector on Monday evening. DM/MC

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