We're not in November any more: Steenhuisen goes to court to stop State of Disaster despite previous support

13 Feb 2023

The DA has done an about-turn on its position on the National State of Disaster, announcing it will challenge it in court, after calling for one to be declared. Meanwhile, resistance to the State of Disaster is mounting, with Numsa announcing a legal bid on Monday, seeking to interdict the government’s decision.

The DA is heading to court to challenge the declaration of an electricity National State of Disaster, after previously pushing for President Cyril Ramaphosa to declare one to deal with the energy crisis at Eskom.

The President announced the electricity State of Disaster to deal with the load shedding crisis in his State of the Nation Address last week.

His announcement followed calls for the crisis to be declared a National State of Disaster by several roleplayers, including traditional leaders and community-based organisations, and was further aired at the ANC’s lekgotla in January.

Before Ramaphosa concluded his speech, the DA had already briefed its legal team to challenge the decision in court.

“A National State of Disaster under the guise of dealing with the load shedding crisis will similarly empower the ANC to abuse procurement processes and issue nonsensical regulations that have nothing to do with the electricity crisis. The DA will not sit back and allow the ANC to abuse the electricity disaster it created to loot and further abuse the people of South Africa,” said a statement released by DA leader John Steenhuisen.

He said the DA was already in court with its case launched in 2021 to declare the Disaster Management Act unconstitutional, and would now do the same to prevent an “ANC looting frenzy” that would follow Ramaphosa’s declaration of an energy State of Disaster.

Read more in Daily Maverick: “ ‘Dangerous and mad’ – Not everyone’s sold on Ramaphosa’s electricity minister and another State of Disaster”

Contradiction?

But a November 2022 address by Steenhuisen seems to contradict his current position. On 23 November, Steenhuisen called on Ramaphosa to “declare a ring-fenced State of Disaster around Eskom.

“This should have been done months ago, when he presented his Energy Response Plan, and his refusal then to concede the urgency and scale of the disaster has now left our grid on the brink of collapse,” Steenhuisen said.

The November 2022 statement continues: “This State of Disaster needs to be declared right away so that disaster relief funding can be reprioritised in order to keep the open-cycle turbines running in the immediate term. But more importantly, a State of Disaster will allow the government to bypass its own self-imposed obstacles, bottlenecks and cost inflations in the form of unworkable labour legislation, localisation requirements, cadre deployment and preferential procurement.”

https://www.youtube.com/watch?v=oDmhiY6Ajn0

However, the DA’s shadow minister for cooperative governance and traditional affairs (Cogta), Cilliers Brink, insisted that the positions were not contradictory.

“What the DA has called for is a ring-fenced set of interventions at Eskom, not for a National State of Disaster under which the government can exercise wide-ranging powers that have nothing to do with Eskom,” he said.

Brink added that a State of Disaster was not tailored to deal with specific challenges at Eskom, but “gives the Cogta minister and other ministers wide-ranging powers to make laws without parliamentary supervision”.

He argued that it would be better to bring a set of disaster measures to Parliament that deal specifically with the situation at Eskom, as allowed for under section 44(2) of the Constitution.

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In a statement on Sunday, Presidency spokesperson Vincent Magwenya said the President had responded boldly to the energy crisis, in terms of capacity to resolve the challenges through the appointment of a Minister of Electricity in the Presidency and through the State of Disaster declaration.

Magwenya said this was not the time for “finger-pointing or politically motivated court actions”.

“In consultations with business, labour, interfaith leaders, community organisations and the presidential coordinating council, President Ramaphosa was urged to take bold measures that will effectively deal with the current electricity crisis.

“Some of those calls were specific to the declaration of the State of Disaster, particularly from [Western Cape] Premier Alan Winde and [Cape Town] Mayor Geordin Hill-Lewis, who are both senior DA leaders,” said Magwenya.

Last month, Winde wrote to Ramaphosa, requesting that a State of Disaster be declared, as had Steenhuisen on 23 November last year.

Winde wrote: “Existing legislation and contingency arrangements do not, in our view, adequately provide for the national executive to deal effectively with the disaster.

“It follows that a National State of Disaster ought to be declared to allow relevant ministers to issue regulations and directions to supplement and enhance the existing legislative framework by, for example, putting measures in place to expedite independent power production, support municipalities in combating the effects of the crisis on basic service delivery, and decisively deal with corruption, infrastructure theft, sabotage and other criminal offences.”

Fears of looting spree

The possible declaration of the electricity State of Disaster had caused concern among business and civil society roleplayers, who feared that it could lead to a looting spree, similar to the tender and procurement corruption that occurred under the Covid-19 State of Disaster.

An energy State of Disaster was previously backed by the Freedom Front Plus, who advocated for it as long as it was coupled with strict parliamentary oversight. However, the party has since condemned the fact that Cogta Minister Nkosazana Dlamini Zuma will be in charge of the disaster regulations.

Magwenya responded: “Over and above the Auditor-General keeping a close eye on various processes as they roll out, the President expects law enforcement agencies to be vigilant and to act with speed in dealing with those who will seek to take advantage of the situation.”

Read more in Daily Maverick: “State of Disaster must be clearly defined and subject to transparent parliamentary oversight, say political parties”

The EFF, on the other hand, has remained consistently against a National State of Disaster to deal with the load shedding crisis — saying the move was not a silver bullet.

Civil society legal bids

Meanwhile, trade unions Solidarity and the National Union of Metalworkers of South Africa (Numsa), have separately announced that they will launch legal action against the National State of Disaster.

Following the President’s State of the Nation Address, Solidarity chief executive Dirk Hermann called the State of Disaster “irrational and unnecessary” — leaving Solidarity with no option but to litigate.

“Poor central control landed us in this crisis. Such poor control in even more measures will not get us out of the crisis. Everything the President announced in the State of the Nation Address can already be implemented by using existing legislation,” he said in a statement.

Hermann said the trade union’s legal team had already begun preparing urgent court documents, which would be served on the government in the coming days.

Last month, Numsa filed court papers at the Pretoria High Court to demand that the government stop cutting the country’s power. Other applicants in the matter included the United Democratic Movement, Health and Allied Workers Indaba Trade Union, Build One South Africa, the IFP, South African Federation of Trade Unions, Democracy in Action and ActionSA.

The group contends that the manner in which the government has responded to the load shedding crisis is unconstitutional. They also seek to hold the President to account for the “human cost of load shedding”.

The matter is scheduled to be heard in the Pretoria High Court from 20 to 24 March.

In addition to this multiparty legal bid, Numsa’s national spokesperson, Phakamile Hlubi-Majola, confirmed to Daily Maverick on Monday that the trade union would file a separate application to interdict the declaration of a National State of Disaster. DM

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Contradiction?

Fears of looting spree

Civil society legal bids