“We approach the court from the painful reality that for the foreseeable future, load shedding will continue to be a daily feature in the lives of South Africans. As such, its devastating consequences and the growing humanitarian crisis will only get worse.” 

This is how the leader of the United Democratic Front, General Bantu Holomisa, began his founding affidavit in the legal action filed by South Africans from all walks of life to ask a judge for an order to stop the “human cost of load shedding”. 

Holomisa said they needed the court to intervene to mitigate the effect of load shedding on fundamental and constitutionally entrenched human rights.  

He explained in papers before the court that their urgent interdict had been brought “to ensure that the lights stay on and at least ensure the continued functionality of basic services such as healthcare, education, water and sanitation, and food services.  

“Load shedding is a blunt instrument which hits everyone, the young, the old, the sick, the healthy, the rich and the poor alike … but it is not what the Constitution envisages,” Holomisa continued. “Even at a time of crisis, the Bill of Rights continues to bind the state.”  

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Who are the applicants? 

• Political parties: The United Democratic Movement, the Inkatha Freedom Party, ActionSA, Mmusi Maimane’s Build One South Africa, and political analyst Lukhona Mnguni;
• Doctors: Professor Rudo Mathivha, a professor in critical care at Chris Hani Baragwanath Hospital; and Dr Tanusha Ramdin, the head of paediatrics and neonatal care at Charlotte Maxeke Academic Hospital in Johannesburg;
• Trade unions: The South African Federation of Trade Unions, the National Union of Metalworkers of South Africa, and the Health and Allied Indaba Trade Union;
• The White River Neighbourhood Watch, based in Mbombela;
• The African Council of Hawkers and Informal Businesses;
• The South African Unemployed People’s Movement, based in Makhanda;
• The Soweto Action Committee;
• The Mustard Seed Foundation, involved in schools in Makhado in Limpopo; and
• Two real estate companies: Ntsikie Real Estate in Midrand and Fula Property Investment Company in the Eastern Cape.

Who is being taken to court?

• Eskom;
• President Cyril Ramaphosa;
• The minister of public enterprises, Pravin Gordhan, and the minister of mineral resources and energy, Gwede Mantashe;
• The director-general of public enterprises;
• The National Energy Regulator of South Africa (Nersa); and
• The South African government as a whole. 

What is the court asked to do? 

The case will be brought in two parts. The first, for a provisional urgent interdict, will be heard on 28 February, and the second, an extensive constitutional review will be heard later.  

For the urgent interdict, the court is asked to order the following sectors to be exempt from rolling blackouts:  

• Public health facilities;
• Schools;
• Communication networks;
• Police stations;
• Water and sanitation facilities; and
• All micro, small, and very small businesses selling perishable goods. 

As a next step, the court is asked to order that if there must be rolling blackouts, reasonable notice must be given and an opportunity provided for representations. This will include the advance publication of Eskom’s intention to implement rolling blackouts. 

The court is also asked to order Gordhan to produce a plan on what will be done immediately to ensure the uninterrupted supply of electricity and to explain how maintenance of Eskom’s power stations is being done and will be done, to improve the availability of electricity. 

According to papers filed in court, the parties also ask for an order against Mantashe to provide within seven days a list of steps taken to ensure the availability of electricity generation capabilities. 

The court is also asked to order that the construction agreements for Medupi and Kusile power stations and the performance agreements are produced, as well as the reasons why these power stations are not performing and a list of steps taken by Eskom or the government against the contractors, and what payments were made in respect of these two power stations. 

The court will be asked to order that all agreements with independent power producers be handed over, to detail what generation capacity they have, when they will be able to supply it and the payments made to each of these producers.  

According to the court papers, the parties are asking Ramaphosa to hand over the government’s plan to reduce rolling blackouts, as well as the plans for a just energy transition, and the steps he intends taking to ensure the government departments fulfil their mandates.  

The second part of the legal action will involve an extensive constitutional review of the role of the President, ministers, and the South African government, specifically their failure to ensure an uninterrupted and reliable supply of electricity and how this violated the constitutional rights of those in South Africa. The court is also asked to examine Eskom’s role and failure to discharge its legal obligations to provide a reliable electricity supply. 

The court will be asked to order a supervisory interdict and ask Eskom to produce, under oath, a plan of what steps it will take to restore an uninterrupted and reliable supply of electricity and short, medium and long-term plans to end rolling blackouts. This report will have to be filed every 15 days. 

The court will also be asked to review the increases granted to Eskom by Nersa.  

Holomisa said in his founding affidavit that the application was necessary “because of the disparate and in some cases, contradictory reasons furnished by different state departments in explaining the catastrophe that is load shedding. 

“As a result, the public is kept in the dark as to how the management of the grid has reached a near state of collapse without consequence and accountability … Eskom has been grossly mismanaged.” 

He said the intention was that this court case would be able to stop the collapse in critical sections of society (health, food, water and sanitation) under the weight of six-hour to 12-hour power cuts. DM/MC 

Read Part Two tomorrow: Doctors’ devastating affidavits tell of the horror impact of load shedding on public health facilities