Eskom appeals to SCA after ruling it violated its constitutional duty

Eskom has denied it breached “any constitutional duty” in implementing load-shedding, and said it was effected as a “measure of last resort to protect the grid” when there was insufficient supply to meet demand.

This was contained in the power utility’s application for leave to appeal against a Pretoria high court judgment in December ordering electricity minister Kgosientsho Ramokgopa to “take all reasonable steps”, by no later than January 31, to ensure public hospitals, clinics, schools and police stations are not affected by load-shedding.

In a unanimous judgment by three judges, judge Norman Davis said the order was “just and equitable” once the court had determined load-shedding breached several constitutional rights.

The court also declared load-shedding breached the rights to human dignity, life, freedom and security of the person, to an environment that was not harmful to people’s health and wellbeing, the right of access to healthcare services, food and water and the right to basic education.

A similar order had been granted by the same bench in May, but it was directed at the public enterprises minister. The minister appealed against the order.

Eskom’s CFO and former interim group CEO Calib Cassim deposed Eskom’s application to the Supreme Court of Appeal (SCA) after the High Court refused it. In it, he said Eskom sought leave to appeal against the two declaratory orders and the mandatory relief against Ramokgopa. 

“Eskom has never disputed that the prolonged, frequent and more severe cycles of load-shedding have precipitated a national crisis, which has a detrimental impact on a variety of constitutionally protected rights.

“However, by implementing load-shedding, Eskom does not breach any constitutional duty. Load-shedding takes place as a measure of last resort to balance the grid in circumstances where there is insufficient supply to meet demand. This is necessary to protect the grid and thus avoid a national blackout. Eskom is required as a matter of constitutional duty to implement load-shedding to safeguard the constitutional rights of millions of South Africans from the extraordinary harm that would be occasioned by a blackout,” he said.

Cassim said that while the utility accepted the energy crisis was linked to historical conduct, this provided “no basis” for the declaratory order by the High Court.

He said that the mandatory order granted by the court not only threatened to upend efforts to end load-shedding, but also “harms the separation of powers and requires Eskom to act unlawfully and perform the impossible”.

‘Hopelessly vague’ mandatory relief

He described the two declaratory orders granted as vague and, where they reference Eskom, inappropriate. 

Cassim said the court erred in “several respects”, including that the order granted bore “no resemblance to the declaratory order sought by the DA”.

“The grant of the declaratory relief by the full court goes against the well-established principle that courts must confine themselves to the relief sought by the parties and pleadings,” he said.

Cassim described the mandatory relief granted as “hopelessly vague”, “unlawful” and “impossible to implement” as it did not stipulate the reasonable steps the minister must take, or clarify “whether any obligations are imposed on Eskom”, and if there were, to elaborate on those.

“The vagueness of the order and the overreaching of the full court are compelling reasons in themselves to grant leave to appeal as they undermine the rule of law.

“In the circumstances, it cannot seriously be disputed there are compelling reasons for granting leave to appeal.”

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