In a groundbreaking judgment against Eskom and load shedding, the Gauteng High Court, Pretoria, ordered the minister of electricity to by the end of January ensure that all public health institutions such as hospitals and clinics, public schools and police stations, including satellite stations, are exempted from load shedding.
Judge Norman Davis delivered a 66-page judgment on Friday afternoon in which he found that government had dismally failed the country and its people.
He declared that government’s failure to protect Eskom from criminal activity and state capture, which were manifested in the energy crisis and in load shedding, constituted breaches to protect and promote the Bill of Rights.
He attributed the energy crisis to government’s failure in the 1990s to open the energy sector to competition with the private sector and to timeously implement the Independent Power Producer procurement programme, as well as the delays in the decision to build Medupi and Kusile power stations.
He said it was specifically declared that these breaches constituted unjustified infringements enshrined in the Constitution. These included the right to human dignity, the right to life and the right to freedom and security.
In the opening to his judgment, Judge Davis said if courts could end load shedding they would. “But they can’t and it is not their function,” he said.
The judgment followed an application by political, labour and community organisations to stop Eskom from continuing with load shedding.
The court application was launched by the National Union of Metalworkers of SA (Numsa); the United Democratic Movement (UDM), the Health and Allied Workers Indaba Trade Union (Haitu); Build One SA (Bosa), the IFP; Saftu and Democracy in Action.
The applicants submitted that the manner in which the government had responded to the crisis of load shedding was unconstitutional and breached several constitutional rights.
They argued that load shedding had become a pressing human rights concern. The government’s response had undermined the fundamental rights of citizens.
Evidence was produced of the impact of load shedding on hospitals, schools, small and medium businesses, telecommunication services and a range of other critical sectors of the economy which cannot function during load shedding.
They argued that bearing in mind that load shedding was not an inevitable fact of history, like Covid-19, but had been directly caused by deliberate state action, negligence of the state, and general disregard for the obligations of the state under the Constitution, there was an obligation on the state to alleviate the human suffering which had been caused by load shedding.
The court was told that load shedding affected the poor, the unemployed and black people in less affluent areas in ways that could not be prevented except by governmental support and intervention.
To prevent the human cost of load shedding, which the government had ignored, the applicants asked for compliance with the Constitution, which required that in times of hardship the needs of the poor and marginalised should be prioritised.
The court was told that unfortunately the practical reality showed that the government had no strategy to shield the poor against load shedding or to alleviate the suffering which had been caused by load shedding.