The Pretoria High Court’s recent ruling has put the South African government in a difficult position, as taxpayers may face a substantial bill for equipping hospitals, clinics, police stations and schools with generators and diesel to avoid power cuts.
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As per the court’s order, the public enterprises minister, Pravin Gordhan, must take all necessary measures within 60 days to guarantee an uninterrupted power supply in these public facilities. The decision has raised concerns among taxpayers about the economic implications of such a mandate.
As reported in TimesLive, according to Vincent Magwenya, spokesperson for the Presidency, an appeal against the court order is ‘very likely.’
The ruling, which requires the government to equip public facilities with generators and diesel to prevent power cuts, has raised concerns about the stability of the grid and its impact on the fiscus. The Department of Public Enterprises has stated that it is reviewing the ruling and considering all legal options, while the office of the electricity minister is ‘studying the judgment.’
Daphne Mokwena, interim spokesperson for Eskom, has said that the company’s legal team is still reviewing the decision.
The ruling has come at a time when concerns are mounting about electricity supply during winter, with some experts predicting record-high loadshedding.
The court’s decision was based on findings that the state had repeatedly breached its constitutional and statutory duties, leading to continued infringement on citizens’ rights to healthcare, security and education.
According to Judge Davis, basic education is an unconditional right under the constitution, and the consequences of loadshedding were felt acutely in rural and township schools.
He noted that these schools often had no alternate sources of electricity available, unlike private schools, resulting in closures that not only deprived learners of education but also of their only guaranteed meal of the day.
Despite the court’s decision, some experts remain sceptical about its practicality. Alwie Lester, a former Eskom general manager for 25 years and current adviser to the Western Cape government on energy matters, expressed doubts about the feasibility of implementing the ruling.
Lester has acknowledged the rationale of the judgment but believes that its implementation would be difficult due to high capital and running costs.
He has pointed out that there are thousands of public facilities across the country, including schools, hospitals, and police stations, and equipping them with generators would cost millions of rands. Lester has also raised concerns about who would bear these costs.
Meanwhile, Wayne Duvenage, CEO of the organisation Undoing Tax Abuse, has questioned the effectiveness of the ruling, saying that it would ‘not achieve much.’
Lester said that equipping public facilities such as hospitals and police stations with generators would be an expensive undertaking for taxpayers, as these facilities are funded by general taxes.
While acknowledging the necessity of generators, he said it was not just the equipment that would cost money but also the diesel required to power them. He noted that most hospitals already have generators.
In the court ruling, Judge Davis traced South Africa’s current loadshedding crisis to a warning given to the government in 2008, which it had accepted but failed to remedy over the past 15 years.
Eskom, the state-owned power utility, has acknowledged that loadshedding causes human suffering and infringes on human rights.
The court did not require that all public facilities, including roughly 23 000 schools, be exempt from loadshedding. Judge Davis clarified that exemptions could only be made for facilities that were ’embedded’ in the surrounding network and would not endanger the grid’s stability. In such cases, individual solutions, such as generators or alternative energy sources would need to be devised.
The South African government claimed it had plans to tackle loadshedding, but the timelines and nature of these plans were uncertain and would not address the immediate needs of the affected facilities.
During the court proceedings, the government argued that Pravin Gordhan did not have the legal authority to provide alternative energy sources for schools and clinics, as these responsibilities fell under different spheres of government that were not before the court.
However, the court order permitted Gordhan to act either in conjunction with other organs of state or alone. The court believed that Gordhan was the right person to rectify the situation since he had conceded that his department was directly involved in implementing the plan to tackle loadshedding.
The order provided Gordhan with the freedom to enlist the assistance of other organs of the state without any restrictions, as the court recognised the interrelatedness of these organs.
In response to the government’s argument that the proposed interventions were not budgeted for, Judge Norman Davis stated that the costs of the alternative electricity supplies would be insignificant when compared to the losses caused by loadshedding and other state expenditures.
The court held that the non-provision of a budget item was not an excuse when the constitution has been infringed.
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Picture: Murray Swart
