Eskom believes that a landmark ruling by the Gauteng High Court, Pretoria, compelling it, along with Electricity Minister Kgosientsho Ramokgopa to try their level best to exempt key institutions from load shedding, tramples upon the separation of powers.
The December 1 order directed Ramokgopa, along with other state bodies, to take reasonable steps to exempt all public health institutions, including hospitals and clinics, public schools and police stations, including satellite stations, from the impacts of load shedding by the end of January.
In reaction to the ruling, President Cyril Ramaphosa said the outcome was a confirmation of the government’s programme.
“We want our schools and hospitals to have the requisite amount of energy.
We did say in the court papers that while that is our strategic objective, the issue of energy is affecting all of society and there will be moments when we have load shedding that affects certain portions of society negatively but we are going to take steps to make sure that hospitals, schools and police stations are less adversely affected,” he said.
However the power utility has now set its sights on applying for leave to appeal to the Supreme Court of Appeal (SCA), arguing that 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, and 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 trenches upon separation of powers”.
“The vagaries in the court’s order, moreover, has significant implications for the processes that the government, and potentially Eskom, have to undertake at the very time that their energies should be committed to dealing with load shedding.
“Finally, and undoubtedly, the questions in this case were complex ones.
The issues in the matter are questions of constitutional interpretation and remedies, of national importance, well suited for appeal court consideration at the Supreme Court of Appeal,” read Eskom’s court papers.
ActionSA, which was an applicant in the matter, criticised Eskom that instead of addressing the concerns raised by the court order – including that load shedding infringes on the basic constitutional rights of South Africans – and protecting the most vulnerable against the power crisis through exempting schools, police stations and hospitals, “the president, the minister and Eskom have rather decided to spend taxpayers’ money to appeal the ruling”.
ActionSA leader Herman Mashaba said: “It is well documented how communities across South Africa have been adversely affected by load shedding when police stations’ telephone lines don’t work, hospitals fail to take care of sick patients when the lights go off, or studies are interrupted at schools when they fail to have access to power.
“Government alleges in the appeal that there is ‘insufficient evidence’ to demonstrate this obvious fact. It is our duty to protect these crucial services and it is deeply concerning that the president, the minister and Eskom simply do not care.
“Load shedding remains one of our biggest inhibitors to job creation, with thousands of small businesses forced to close as a result, while incidents of crime spike when load shedding occurs.
“Our children are sent home when schools cannot operate without power, and are left without daycare and feeding programmes.
Hospitals and clinics are unable to save lives when the lights go out.
This is simply unacceptable.” South Africans entered the new year with news that load shedding had resumed at Stage 2.
Eskom said this was due to a setback of three generating units (2 148MW) not coming back online as anticipated, amid “current intensified maintenance”.
“This coupled with a loss of six generating units (3 113MW), and projected increase in electricity demand requires Stage 2 load shedding to be implemented from 05:00 on Tuesday until 16:00, followed by Stage 3 load shedding until 05:00 on Wednesday.
“This pattern of Stage 2 load shedding in the morning and Stage 3 load shedding in the evening will be repeated daily until further notice.
Load shedding is implemented as a last resort when it becomes necessary to protect the integrity of the power system,” the power utility said.
Weighing in on the reintroduction of load shedding, energy expert Lungile Mashele said: “Eskom gave a summer maintenance programme where they provide a load shedding forecast depending on the Unplanned Capability Loss Factor (UCLF). Load shedding at the moment is driven by Planned Capability Loss Factor (PCLF) and UCLF.
“At the current UCLF, Eskom will be load shedding for the rest of the month. The intensity will most likely increase once industry opens up.
Load shedding always increases in intensity leading up to winter – this year will be better than 2023 because there’s Koeberg, the three units at Kusile and Kusile unit 5 have been synchronised.”
Eskom did not respond to further requests for comment around its decision to challenge the ruling by deadline on Tuesday.