NUMSA statement on the #StopLoadshedding court case

19 March 2023

The National Union of Metalworkers of South Africa, (NUMSA), the United Democratic Movement (UDM), Health and Allied Workers Indaba Trade Union (HAITU), Build One South Africa (BOSA), and the South African Federation of Trade Unions (SAFTU) and others, are part of a multi-stakeholder application in a court case at the North Gauteng High Court in Tshwane to #StopLoadshedding. The case will be heard by a full bench of judges from the 20th to the 24th of March. The court case will involve different arms of government as respondents in the case, including, the Presidency, the government of South Africa, the National Energy Regulator of South Africa (NERSA), the Department of Public Enterprises (DPE), the department of Mineral Resources and Energy, (DMRE), and the Eskom management and board.

In the responding papers filed on behalf of the President, Ramaphosa refuses to take any responsibility for loadshedding. He claims that none of the government respondents cited in the case have a constitutional obligation to supply electricity to the public. He shamelessly passes the buck and blames local government and municipalities for his own failures. The submissions of the President are among the many excuses that are made by both government and Eskom. They take no responsibility but they point fingers at each other for the crisis. This has forced us to take them all to court, in order to get the court to assist us with holding them all accountable for the destructive impact that Loadshedding has had on us. What is clearly obvious in the responses from the state is that there is a total failure to govern.

There is a human cost to loadshedding and the purpose of this case is to expose the facts about how the decisions taken by all these arms of government, including disastrous decisions taken by the former GCEO of Eskom, Andre De Ruyter, contributed to loadshedding. As a result of their negligent behaviour, the working class and the poor are suffering from the effects of loadshedding. In our application we have included evidence from expert witnesses on how loadshedding is resulting in unnecessary deaths in our public hospitals. We will also demonstrate that there are viable solutions to the problem. We are hoping the courts will help us to ensure that this government delivers on its constitutional mandate to provide uninterrupted energy supply.

We have said in our papers that:

- The state is violating certain fundamental right by implementing loadshedding and load reduction. The right to healthcare; food; water and sanitation; human dignity and basic education are all being undermined. Where hospitals are subjected to lengthy hours of load shedding, the right to life is violated.

- We say in our papers that these infringements were all avoidable. They stem from the state’s failure to provide an uninterrupted supply of electricity, as it is obligated to do in terms of section 21(5) of the Electricity Regulation Act 4 of 2006 an section 5 of the National Energy Act, 34 of 2008 (“NEA”).

We want the court to grant us the following prayers:

1.     We want public health institutions; public schools; electronic telecommunications networks for internet and mobile phones; all South African Police Stations, any entity responsible for the provision of water and all micro and small businesses trading in perishable goods, to be exempted from loadshedding.

2.     We want the court to ensure that this exemption is extended to all of the above institutions who are supplied electricity through the municipality.

3.     The alternative prayer we seek is that Eskom and the Minister of Public Enterprises must take immediate steps to procure alternative sources of electricity and/or energy for all the establishments and critical sectors named above, including but not limited to solar panels and generators.

4.     We want the court to suspend the decision by NERSA to impose a tariff increase of 18.65% tariff increase for the 2022/23 financial year.

5.     Eskom is directed to provide reasonable notice of loadshedding, and a reasonable opportunity for representations to be made by all users of electricity, as required by the provisions of the Promotion of Administrative Justice Act 3 of 2000, and which at a minimum shall consist of:

- The advance publication of Eskom’s intention to interrupt or reduce the supply of electricity, and the proposed loadshedding schedule for that area or those areas; and a reasonable opportunity for users of electricity to make representations about the proposal or proposals, including the proposed schedule.

6.     The Minister of Public Enterprises and Eskom are directed to produce a plan that explains the measures that they will immediately take to ensure compliance with their obligations under section 21(5) of the Electricity Regulation Act 4 of 2006, to ensure that the supply of electricity is not reduced or terminated; and

- Explain the steps they have taken, and will take, to ensure the maintenance of Eskom’s power stations to ensure the increase in their energy availability ratio or factor in such a manner that it ensures the uninterrupted supply of electricity and file that plan with the court.

7.     The Minister of Mineral Resources and Energy is directed to produce and deliver to this Court the record of any decisions made and steps taken in terms of section 34 of the Electricity Regulation Act 4 of 2006 to ensure the availability of electricity generation capacity.

8.     The Minister of Public Enterprises, the Minister of Minerals and Energy and Eskom are directed to produce copies of the following documents and serve them on the other parties:

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

- They must produce 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.

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

- The National Government’s plan to alleviate the adverse impact of loadshedding on public health, public education and employment;

- The National Government’s plan to implement the “just energy transition” from reliance on coal to renewable energy;

- The agreements reached with any foreign country in respect of South Africa’s commitments to just energy transition and any financial commitments made by South Africa under those agreements;

- The steps that the President has taken and intends to take to ensure the responsible state departments fulfil their constitutional and statutory mandates in respect of provision of electricity or any energy sources to the public.

In terms of the Constitution and the law the state has an obligation to provide us with an uninterrupted supply of electricity. They must do so in this case because there is an undisputed emergency which is causing irremediable harm to the affected sectors. We have no feasible alternative but to turn to the court to enforce our rights under the law and the Constitution.

The first day of the trial, (20 March), will be heard online due to the National Shutdown.

Issued by Irvin Jim, NUMSA General Secretary, 19 March 2023