ActionSA takes joint legal action against Eskom in light of persisting energy crisis

2 February 2023 

In the interest of holding the ANC government account for the energy crisis, ActionSA will be taking joint legal action against Eskom, the Department of Mineral and Energy Resources and the Department of Public Enterprises, and the Government of the Republic of South Africa to take them to task over Eskom’s failure to provide South Africa with a stable energy supply. ActionSA and others are seeking an interdict, prohibiting Eskom from loadshedding essential services and industries.

This important action comes as the energy crisis deepens, with Stage 6 Loadshedding an ever increasing phenomenon. This has precipitated the ANC-led government proposing the implementation of a National State of Disaster, something ActionSA vehemently opposes in the light of the abuse and corruption witnessed during the State of Disaster imposed during the COVID pandemic.

After almost 15 years of loadshedding it is clear that the ANC government has no plan to resolve the problem, leaving South Africans in the dark. It is our belief that without urgent action from the concerned parties, the government of South Africa will continue to let the ensuing crisis persist unabated.

In the court order, we are calling for interim relief from loadshedding for the following:

All public health establishments as defined in the National Health Act 61 of 2003;

All public schools as defined in the South African Schools Act 84 of 2006;

All electronic communication networks as defined in the Electronic Communications Act 36 of 2005;

The South African Police Service, including police stations as envisaged in the South African Police Service Act 68 0f 1995;

All entities tasked with the responsibility of providing water in terms of the National Water Act; and

Micro and small business enterprises that trade in perishable goods and will require the use of electricity to store these goods, as defined in terms of the National Small Enterprises Act 102 of 1996.

Moreover, we demand reasonable notice of all loadshedding schedules, and a reasonable opportunity for representations to be made by all electricity users.

The Minister of Public Enterprises and Eskom are further directed to, within 7 days, outline the measures that they will be taking to ensure compliance to supply electricity and ensure that the supply is not reduced or terminated. Finally, we demand that Eskom explains the steps being taken to increase electricity availability and ensure there is an uninterrupted supply of electricity. In essence, we are seeking full disclosure of the government’s plans to end loadshedding – or expose their lack of the plan.

To this end, the Minister of Mineral Resources and Energy is directed to immediately produce the record of any decisions made and steps taken to ensure availability of electricity generation capacity. They are to produce copies of the following:

Any agreements concluded in respect of the construction and performance of Medupi and Kusile Power Stations, including the reasons for non-performance against any contractors; and any payments made by National Government to contractors;

All agreements entered into with any independent power producer;

The capacity of electricity which will be produced by each independent power producer;

The date by when each independent power producer is expected to produce electricity; and

Any payments made or expected to be made by the government to each independent power producer.

The President shall immediately produce the following documents and ensure that they are delivered to other parties:

The National Government's plan to alleviate the adverse impact of load-shedding on public health institutions, public education institutions and employers;

The National Government's plan to implement the just energy transition from reliance on coal to renewable energy;

The agreement reached with any foreign country in respect of South Africa's commitment to just energy transition and any financial Commitments made by South Africa under these agreements; and

The steps that the President has taken and intends to take to ensure the responsible state department's fulfil their constitutional and statutory mandate and respect of provision of electricity and any energy sources to the public.

Despite the numerous pronouncements and promises from President Cyril Ramaphosa and Energy Minister Gwede Mantashe about brining loadshedding to an end, the situation continues to worsen on an almost daily basis. The President and his cohort are either oblivious to the truth or have blatantly lied to the nation.

It cannot be that a government can make promises that affect millions of people and there are simply no consequences for when they do not meet these deadlines or blatantly mislead the nation. ActionSA will do everything in its power to hold the government to account. We have had enough of this dire situation.

Issued by Adv Gillian Benson, ActionSA Head of Strategic Litigation, 2 February 2023