It not technically possible to exempt key institutions from load shedding, Eskom maintains, after it approached the courts for leave to appeal against the landmark judgment which had ordered sufficient supply or generation of electricity to key public institutions in the healthcare, education and safety sectors.
At the start of 2023, fed-up civil society organisations, unions and opposition parties initiated legal proceedings seeking to put an end to load shedding, and “hold the government accountable for its failure to provide electricity to the nation”.
Late last year, Judge Norman Davis ultimately found that the government's failure to protect Eskom from criminal activity and state capture, which manifested in the energy crisis and in load shedding, constituted breaches to protect and promote the Bill of Rights.
He ordered Electricity Minister Kgosientsho Ramokgopa to take all reasonable steps by no later than January 31, 2024, whether in conjunction with Eskom and other organs of state or not, to “ensure that there shall be sufficient supply or generation of electricity to prevent any interruption of supply as a result of load shedding” to all “public health establishments”, “public schools” and the “South African Police Service and police stations”.
However, the power utility has now set its sight on applying for leave to appeal to the Supreme Court of Appeal (SCA), arguing that the high court granted exemption relief when it was not sought by any party before it and in circumstances where it lacked jurisdiction to grant the exemption relief.
It thus constituted an order that lacked jurisdiction and went far beyond the pleadings and argument.
It charges that the order “sets a significant precedent regarding duties upon organs of state in relation to the provision of electricity in the context of load shedding, and the ability of a court to interfere with those roles and grant extensive relief that impinges upon the separation of powers”.
In response to questions around why the power utility had decided to challenge the court ruling, Eskom said: "The court order is vague and it does not take into consideration the electricity regulatory framework relating to load shedding.
Technically, it is not possible to exempt these entities due to the embeddedness of the network. As a result, it will be difficult to implement.”
ActionSA, one of the applicants in the matter, had criticised both Eskom and President Cyril Ramaphosa, saying that “instead of addressing the concerns raised by the court order, the president, the minister and Eskom have rather decided to spend taxpayers’ money to appeal against the ruling”.
Approached for comment on Wednesday, spokesperson for Ramaphosa, Vincent Magwenya said: “Appealing court judgments is part of our jurisprudence.
There's nothing out of the ordinary in doing so.”