Secret cabinet report confirms government’s unconstitutional conduct

Following recent intense load shedding with erratic changes in stages and a terrible outlook for the next 52 weeks, the Gauteng division of the High Court delivered a judgment on Friday pointing the finger for the current electricity crisis squarely at the ANC government.

This comes at a time when preparations for what is considered watershed national and provincial elections next year are gaining momentum. The date may soon be finalised as a crucial Constitutional Court ruling on challenges to the Electoral Amendment Act is expected on Monday. 

Ruling on applications brought earlier by the United Democratic Movement (UDM), the Democratic Alliance (DA), local government association Salga, and a number of other political parties, civil society organisations and even a few individual medical professionals, Judge Norman Davies systematically pointed towards failures by the ANC government since 1990 that resulted in the unjustified infringement of a number of crucial Constitutional rights.

Read: Government faces legal threat over load shedding crisis

He emphasised that the infringements are ongoing.

The respondents included, among others, Eskom, Nersa, the president, the ministers of public enterprises, electricity, mineral resources and energy, and the premiers of all nine provinces.

Secret document

The irony is that the finding of unconstitutionality is largely based on a report from within the government – the secret document in which Electricity Minister Kgosientsho Ramokgopa, on 10 May 2023, two months after his appointment, set out the true cost of load shedding to his cabinet colleagues, which he attached to his much more mildly worded affidavit in response to the court applications.

The court also ordered Ramokgopa to take measures to ensure uninterrupted power supply to all public hospitals, clinics, and schools, as well as police stations, by the end of January next year.

Read:
Court exempts hospitals and schools from load shedding
Gordhan to appeal load shedding exemption ruling

MC Botha, managing director of MC Botha Inc, who has specialist knowledge of legal issues in the electricity supply industry, says it is interesting that the court was prepared to make such a wide ruling of unconstitutional conduct, in terms of both the duration and the extent, against all the public sector role players in the field of electricity supply.

“It is unusual and an indication of the steps the courts must take to [compel] government and organs of state to protect the constitutional rights of citizens from government’s disregard and neglect of basic human rights.” 

‘Brutally honest’

The court points out that Ramokgopa is brutally honest in the secret report to the cabinet while underplaying it in his affidavit.

Among others, he states that 76 out of 213 identified hospitals had already been exempted from load shedding, while efforts on behalf of 46 were in progress at the time. Although installing solar power and batteries at the other 137 hospitals would be more cost-effective, it would require more than R10 billion. Failing that, the diesel cost of relying on generators would amount to R3.3 billion per annum.

He sets out that load shedding:

• Poses an immediate threat to life, the economy and the state;
• Disrupts local and international supply chains and drives rising food prices and inflation;
• Is destroying the buying power of South Africans, with take-home pay decreasing by about 11% between January 2021 and July 2023;
• Costs the economy R1 billion per day in 2022, which could increase to R1.3 billion in 2023;
• Caused losses of R47 billion in the manufacturing sector in 2022, which could increase to R59 billion in 2023; and
• Exacerbates unemployment, inequality, and frustration, which can threaten state security.

The court found that the content of the report shows that the unjustified infringement of constitutional rights was admitted by the state and was a common cause of concern among the parties. 

Botha says in that case, the court is compelled to make a finding of unconstitutional conduct on the part of government. 

While the DA made a strong case for appointing a special master to oversee the implementation of the court order, the court considered the appointment of Ramokgopa to oversee the implementation of government’s energy action plan after the applications were launched. It therefore ordered him to implement mitigation measures for public schools, hospitals, clinics, and police stations.

Botha says the concept of such a master is a developing legal remedy courts use to ensure the implementation of court orders where organs of state lack the capacity or seem unwilling to do so or when independent oversight is needed. 

He says it is clear from the discussion in the ruling that a court may consider such an appointment if a party in future brings a new application showing that government’s failure to resolve the crisis is continuing. 

Unconstitutional conduct

The conduct of government was ruled unconstitutional in terms of:

• The non-realisation of its intention in the late 1990s to open the energy sector to competition with private actors;
• Its failure to timeously implement the Private Power Producer Procurement Programme;
• The delays in the decisions around and implementation of the building of the Kusile and Medupi power stations;
• The decision to run the power stations beyond capacity and without proper maintenance;
• Its failure to ensure or approve sufficient revenue for Eskom’s services;
• Its failure to protect Eskom from criminal activity, corruption and state capture; and
• Its failure to remedy the electricity crisis.

System update

In the meantime, Eskom’s latest system status bulletin shows the availability of Eskom’s power stations was even below the average for the year-to-date in the week ended 26 November – and more than four percentage points below the average for 2022 of 58%.

The outlook for the next 52 weeks is bleak: