Solidarity serves court papers to have state of disaster over electricity declared unlawful

14 February 2023

Solidarity, today at a media conference, served court papers dealing with its litigation about the recent declaration of a state of disaster over the electricity crisis.
 
It is argued in Solidarity’s application that, among other things, the electricity crisis does not meet the definition of a disaster in terms of the relevant legislation; that existing legislation can adequately manage the crisis; that the declaration of a state of disaster does not serve a clear purpose and that there was improper political interference in declaring the disaster.
 
“The government itself is the cause of the electricity disaster and it cannot declare itself a disaster, thereby obtaining extraordinary powers to address the disaster. Disaster legislation is not meant for government failure,” Dr Dirk Hermann, Solidarity chief executive said. “We do not have short memories either. We remember the abuse of power during the Covid-19 state of disaster, and how disaster funds were looted. A state of disaster to deal with the electricity crisis is a disaster.”
 
According to Solidarity, a state pf disaster is a state of exception and a process that is in conflict with normal democracy. Therefore, extreme caution must be exercised when dealing with it. A state of disaster is intended as a temporary intervention only and should be used only if no other instrument is available to deal with it. This means that if another legislative instrument is available to deal with this state of exception, it must be used.
 
Moreover, Solidarity holds the strong view that drastic steps are called for to deal with the electricity crisis. However, the problem lies in the fact that, so far, the government has indeed lacked the political will to do the right things.
 
“All the measures announced in Pres. Ramaphosa’s SONA can be implemented by using other statutory instruments. If other instruments do exist, disaster legislation does not apply,” Hermann explained.
 
“If this state of disaster is allowed to continue, a dangerous precedent will be set. This could mean that South Africa will face a future of being a disaster democracy. Government failures, such as failure to deliver water and sewerage services, failing municipalities, the implosion of infrastructure and other problems can then also be managed by bypassing normal democratic processes by declaring a state of disaster. That was never the intention of disaster management legislation,” Hermann put it.
 
Solidarity also pointed out that the government, apart from its mismanagement at Eskom, also has a particularly poor track-record when it comes to disaster management.
 
“During the Covid-19 pandemic the state of disaster led to an absurd abuse of power such as fines imposed for weeding a sidewalk, the police making people jump like frogs, imposing a ban on buying flip-flops and warm food, the closing of beaches and banning cigarettes, together with so many other abuses. A total of 411 000 South Africans were arrested for breaking Covid-19 state of disaster rules,” Hermann pointed out.
 
“In addition to these absurdities, Covid-19 emergency funds became a source for looting. Dozens of companies have been implicated in fraud related to the Covid-19 state of disaster. Unlawful deals worth billions were made to procure protective clothing. The Auditor-General issued a damning report on the abuse of funds and poor management during the Kwazulu-Natal flood disaster last year.”
 
Solidarity contends that history will prove that disaster funds will no doubt again be looted during the electricity state of disaster. Only the naïve will think otherwise.
 
“By definition, a state of disaster is an instrument to revoke rights during a time of disaster. Unprecedented powers are granted to the government, and citizens will be left at the mercy of the government’s dealing with the situation. It would be irrational, reckless and unnecessary to grant disaster state powers to the government in this case,” Hermann concluded.

Issued by Dirk Hermann, Chief Executive, Solidarity, 14 February 2023