A letter of demand to Eskom, the National Energy Regulator of SA (Nersa) and the Department of Public Enterprises is laying the ground for a class-action lawsuit, says one of the country’s leading lawyers.
On Monday, UDM leader Bantu Holomisa; Mmusi Maimane, founder of the Build One South Africa movement; IFP, Numsa, policy analyst Lukhona Mnguni; Phiwe Mehlo; Ntsikie Mgayiya and NPOs, asked a team of lawyers to issue a letter of demand to Public Enterprises Minister Pravin Gordhan over load shedding and to stop the 18.65% tariff hike given by (Nersa) to Eskom.
The prominent lawyers include Eric Mabuza of Mabuza Attorneys, Mphahlele & Masipa Inc, Buthelezi Vilakazi Inc, Makangela Mtungani Inc, Mketsu & Associates Inc and Madlanga & Partners Inc and Ntanga Nkuhlu Inc Attorneys.
The letter states that continuous blackouts have become so commonplace and their damaging impact “so ubiquitous that, electricity, once a reasonably accessible commodity, is now the preserve of the rich”.
“It cannot be disputed that the state, as represented by the Ministry of Public Enterprises and Eskom, has not taken any reasonable measures to provide vulnerable South Africans with adequate and reliable energy, whether electricity or any other alternative forms of energy. In so doing the state has contravened its duty to provide energy as imposed by the Constitution, national legislation, and contract,” the letter states.
Mpumelelo Zikalala of Zikalala Attorneys said the letter of demand was the start of a long process, and asked important questions about accountability.
“This is something that should have been done a long time ago. They are trying to establish how much money has been lost due to load shedding to establish the claims people can make.
“They are dealing with a class action matter and therefore must engage and establish a clear level of accountability and the level of compensation.
“This is an information-gathering process, and at the end they must establish who is to blame in this process – whether this is (André) De Ruyter or Gordhan.”
Zikalala said that in the end the lawyers would put forward who they wanted to pay compensation, why they were not in good standing, and set out the reasons.
Mnguni said the letter was about the manner of administrative fairness, saying the decisions taken on load shedding were arbitrary without finding an alternative for those who suffered through it.
“Load shedding is entirely man-made and is a culmination of years of inefficiency, corruption, mismanagement and the neglect of state infrastructure.”
He said at the heart of the litigation was to bring into the public domain certain documents that may or may not be there, especially regarding transparency on Eskom’s maintenance plan.
The demand includes that load shedding stop with immediate effect, and if not, a full explanation about why the government is unable to stop it with immediate effect be provided.
Also, that the state develop and make publicly available a clear plan to end load shedding, and the plan must include the resources available to ensure that it is realised and that the 18.65% increase granted by Nersa must not be implemented pending the determination of the court challenge.
Gordhan has until January 20 to provide these undertakings, and if this is not forthcoming then papers will be lodged on January 23 for urgent relief.
Yesterday Public Enterprises confirmed that it had received a letter from Mabuza Attorneys.
Spokesperson Richard Mantu said they are still considering the letter and seeking legal advice on the matter and will respond in due course.