Durban - Cutting off electricity in Newcastle will result in a socio-economic “cata-
strophe”.
This was the argument of advocate Adrian Rall, acting for the MEC for Co-operative Governance and Traditional Affairs, in an application brought by the Newcastle Municipality and Cogta to stop Eskom from implementing power cuts in the town.
Eskom had issued a final notice last week that if the municipality failed to pay more than R100 million in debt, it would be subjected to daily power cuts.
Due to the notice issued, the municipality and Cogta launched an application in the high court for an interdict to stop the move.
Rall said that there was no doubt that Eskom had the right to disconnect, the question was whether it was appropriate in the circumstances.
“Those by themselves would be disastrous, but what is contemplated by the respondent is that if those don’t have the desired effect, it’ll become even worse.”
He said the municipality was not wilfully defaulting on payment.
“This is a municipality that five years ago had R700m in its bank account and a few years ago this municipality won the award for the best municipality in the province.
“It’s come on hard times and people involved at the moment are trying to turn it around,” said Rall, adding that Cogta was also doing its best to do this.
He said the supply of electricity was a constitutional right, and many constitutional rights could be affected by the decision.
“Cutting off electricity to a town the size of Newcastle would result in a human disaster,” said Rall.
He argued that the hours initially proposed by Eskom to load shed - early morning and late afternoon - were the most crucial of the day.
“Its not going to happen overnight. The municipality has revised their budget and slashed expenditure by R157m,” he said.
Advocate Joseph Nxusani SC, acting for Newcastle, said the municipality took offence at being labelled a delinquent municipality.
“This is not a delinquent municipality, it will pay an amount and in the course of time it’s looking at a number of strategies, but they can’t be applied now. One of the strategies is the possibility of selling the book debt,” said Nxusani.
He argued that Eskom had failed to follow proper legal steps before it embarked on drastic action to cut the town’s power supply.
He said Eskom had remedies under acknowledgement of debt but chose not to use them.
“They could take judgment, they could sell those debts, they could attach our property. They haven’t resorted to any of those remedies available.”
Nxusani added that Eskom had “gone for the most intrusive and the most incursive remedy for the sole reason of creating animosity and division and destruction in the community.”
He said Eskom complained they did not receive money, but it was a matter of public record that Soweto residents owed the power utility R18billion.
“Why don’t they go for those types of communities? Perhaps because of politics, we don’t know why.”
Nxusani said Eskom had chosen to go after isolated, smaller municipalities where they knew there was a strong likelihood of creating maximum damage.
“Why would an organ of state want to create that kind of damage, even if you have the power?
“Why would you not have acted on it in the past and put in place perhaps staggered disruptions over the course of the year at a time that doesn’t affect the residents?” he asked.
Advocate Sydwell Shangisa, acting for Eskom, said: “If the municipality has a 97% rate of collection, is it reasonable for them to plead poverty?”
Shangisa said once money was paid to the municipality for electricity, it should be handed over to Eskom.
He said the municipality made R600m annually, with a profit of R200m, and argued that it should not be difficult for the municipality to pay.
“Ratepayers from other municipalities pay R2m a day to subsidise other municipalities,” he added.
Shangisa said interim relief could not just be given on the municipality’s terms.
“This sends out the wrong message to other municipalities. Is it equitable that the defaulting party benefits from its own wrongdoing?” he asked.
Judge Piet Bezuidenhout repeatedly asked Shangisa what the consequences of disconnecting the power would be on residents and businesses.
He said it wasn’t a clear-cut case of non-payment as 97% of residents had paid their bills.
Afterwards, Newcastle mayor Ntuthuko Mahlaba said he was happy with the proceedings and was confident that the case would go well.
“On the positive side, lights are not going to be switched off. As we said before, we’ll continue to work around the clock to make sure that lights are not switched off,” he said.
Judgment was reserved.