Cape Town -The Gauteng High Court, Pretoria has ordered the government to ensure uninterrupted electricity supply to all government hospitals, clinics, schools and police stations.
This followed an application brought by the UDM and other political and civic organisations, which argued the government and power utility Eskom has violated basic human rights by implementing load shedding that has knocked critical areas of the economy such as hospitals.
Their application hinged on the provision of electricity to 85 police stations, 93 hospitals, and 23 000 schools badly affected by load shedding.
On Friday, a full bench gave Minister of Public Enterprises Pravin Gordhan 60 days to ensure uninterrupted electricity supply to these facilities.
Judge Norman Davis, who wrote the judgment, said in cases where sites could not be isolated from the grid to exempt them from load shedding, arrangements must be made for alternative power supply to these government institutions, such as generators.
The UDM and other applicants’ application was at this stage not about stopping load shedding, but rather about reducing the prejudicial impact of load shedding on public health institutions, schools and police stations which do not have alternative energy sources available to them.
They argued that without such energy sources, the Constitutional rights of citizens to healthcare, security and education are infringed upon.
In a second part of the application, only to be heard at a later stage, the applicants are asking the court to declare load shedding unconstitutional.
Eskom said in addition to its historic failure to maintain its power generating capacity, its inability to render sufficient electricity to the country, was further hampered by the lack of cost-effective tariffs.
It also mentioned the low reliability of the ageing generation fleet, the previous management’s refusal to conclude renewable energy independent power producer contracts, regulatory obstacles, high municipal debt and state capture, corruption and sabotage.
Eskom conceded that “load shedding causes human suffering and has a detrimental impact on a variety of constitutionally protected rights...”
President Cyril Ramaphosa, in his affidavit, said: “None of the government respondents have a Constitutional responsibility to supply electricity to the people of South Africa.”
He confirmed that the causes of load shedding and “shortfall” of electricity were the “failure to invest in new generation capacity in the 1990’s and early 2000’s”.
He conceded that this investment would have produced sufficient capacity to meet further demand.
Judge Davis said: “We find that there have been repeated breaches by the State of its Constitutional and statutory duties and that these infringe on citizen’s rights to healthcare, security and education.”
The judge also noted that government argued that the courts should “stay in its lane and not usurp the governance of the country” but that the court concluded that this order did not cross the line of separation of powers.
Eskom said it was still studying the judgement, while Gordhan did not respond to requests for comment by deadline on Sunday.
Energy expert Ruse Moleshe said the decision will be difficult to implement.
“Schools, clinics, police stations and hospitals are embedded within communities and situated in almost every neighbourhood, where medium voltage grids and municipal networks are interconnected. Thus it would be difficult to isolate them without impacting others. To implement such a decision would impact not just the affected facilities but also the neighbourhoods. Consequently, other customers would have to make up for the shortfall or be shed more frequently than it is the case today.
“The impact of putting generation infrastructure within six months will have financial and budgetary implications. Especially taking into account the planned R30bn spending on diesel this coming winter due to supply constraints. Further requirements for diesel to supply these facilities will cost more in terms of buying diesel generators, the fuel (which is imported) and installations. Eskom is already struggling with budgetary constraints related to diesel etc., this will be an additional challenge.”
Numsa said it welcomed the court’s decision, dedicating the victory to the late energy activist Ted Blom.
Bosa leader Musi Maimane said the court had reminded the government that it cannot “shrug its shoulders and act as though there is nothing it can and should do to mitigate the effects of load shedding, particularly for health, educational and security facilities”.