The DA’s flip-flopping on Eskom State of Disaster is embarrassing and legally fraught

Thanks to well-timed rolling blackouts in the Cederberg, I was spared having to watch yet another of President Cyril Ramaphosa’s State of the Nation Addresses (Sona) last week. From what I gather from the text of the speech and responses from the commentariat class, the speech was too long, exceptionally tedious, too technocratic, and lacking in heart.

Ramaphosa also seemed to have delivered the speech with the charisma and energy of a pap snoek. It was also a blessing to be spared from having to witness yet another round of the tedious big-cock politics of disruption so beloved by the EFF, as well as from the usual displays of triumphant philistinism by some ANC and opposition MPs.

To be honest, had I been given a choice between having to watch Ramaphosa delivering the 2023 Sona, or having to spend several days trapped on the MSC Sinfonia with other Kappityt Festival cruise passengers and being forced to watch every single Steve Hofmeyr performance on that cruise, it would have been a difficult choice to make.

With Steve being booted from the cruise, the Kappityt Festival would have won hands-down — even if it meant that I would have had to listen to Karlien van Jaarsveld singing her famous hit, “Rooilipsoene”, 10 times each day. Go, Karlien! (If I may make a suggestion to the organisers of the Kappityt Festival, why not invite Dodo Nyoka, the young cowboy who sings in Afrikaans, and had a hit last year with his song, Foto’s, in which he sings about wanting to enjoy life by getting a bit drunk, having a braai, and making a few mistakes.)

The big “news” of the night was obviously the declaration of a national State of Disaster, ostensibly to allow the ANC government to fix the rolling blackouts crisis created by the very same ANC government over the past 15 years. As I argued last week, it is not clear that the declaration of a State of Disaster will allow the government to do much to deal with the crisis that it would not have been able to do otherwise.

But the most surprising development of the night came when DA leader, John Steenhuisen, issued a statement before the President’s speech even ended to announce that the DA had “already briefed our lawyers to challenge the announcement in court”.

Claiming (quite correctly, I think) that the government was grasping at straws, the DA leader also claimed that the declaration of a State of Disaster was “dangerous” and “desperate” as it would lead to a looting frenzy.

The statement was, to say the least, rather odd — unless we assume that it was an act of empty political theatre aimed at the DA’s core constituency. Why brief lawyers to challenge the declaration of a State of Disaster (I assume this is what the DA leader meant to say, as one cannot legally challenge an “announcement”) even before regulations and directions have been issued?

In the absence of such regulations and directions, it would be extremely difficult to assess whether the declaration (as well as the measures taken in terms of it), were unlawful, not least because these regulations and directives will give an indication of whether the government would be able to convince a court that the declaration was “necessary” to deal effectively with the power crisis.

What makes the hasty announcement of court action even odder is the fact that the DA is already challenging the constitutionality of parts of the Disaster Management Act, arguing, among other things, that what constitutes a national disaster “is so vaguely defined that the decision almost [sic] amounts to a discretion”. (If the criteria are vague, it means that the decision to declare a State of Disaster — as opposed to specific regulations adopted in terms of it — would be difficult to challenge in court.)

But what got the commentariat class most excited (yes, I am obviously a member of this class), was the fact that the DA declared support for the declaration of a State of Disaster to deal with the Eskom crisis as far back as May last year — only to turn around and reject it when the President embraced their idea. Evidently, the party was caught out flip-flopping in a manner that would even impress EFF leader Julius Malema.

To limit the pedantic hair-splitting for which the usual party hacks are infamous, let me provide the precise wording of the DA’s pre-Sona position. The DA first made the call in May 2022 for “Eskom to be declared a State of Disaster” to “ensure, among other things that a moratorium is placed on unnecessary regulatory requirements”.

In July last year, the DA “clarified” its position by explaining that the party did not support the declaration of a state of emergency, but rather the declaration of a “ring-fenced” State of Disaster “that is fully accountable to Parliament”.

When several journalists and commentators pointed this out, the DA decided to gaslight voters and journalists by claiming there was no contradiction between the party’s position before and after Sona.

Channelling his inner Lindiwe Sisulu, DA MP Ghaleb Cachalia even accused journalists of spreading disinformation about the DA’s position, and demanded that these journalists apologise to the DA.

Luckily I need not say more about this bizarre attempt to deny reality, as Ivo Vegter, who is sympathetic to the DA, explains it in sufficient detail in an opinion piece published in The Daily Friend, the online newspaper of the ironically named “Institute of Race Relations”.

I find myself — for once — in agreement with Vegter that the DA scored a serious own-goal with its gaslighting. Sadly, this is yet another, and entirely preventable, example of what Prof Somadoda Fikeni memorably described as the DA’s tendency to “mutilate itself in a corner, unprovoked”.

Conjuring up every drop of interpretative charity available to me, let me assume that the DA really did not say what it said in their pre-Sona press statements, or perhaps that it did not realise what the consequences of its original proposal would be.

Taking the proposal at face value, I will now try and explain why the DA’s proposal for a “ring-fenced intervention” (as Steenhuisen renamed the DA’s position in an interview with News24) that would allow for robust parliamentary scrutiny and oversight, may be both unworkable, and unconstitutional.