Such is the cynicism among voters at present that the ANC may have to think carefully about using “emergency” measures which could backfire. Particularly if there is any hint of corruption in the efforts to solve the power production problems.

On Monday evening, President Cyril Ramaphosa said that the ANC’s NEC lekgotla had resolved that the declaration of a National State of Disaster would help to resolve our electricity crisis with greater urgency.

On Tuesday, ANC secretary-general Fikile Mbalula made the same point, saying this would make it easier for the government to deal with the Eskom situation.

Of course, for politicians, the declaration of a “national disaster” has an undeniable attraction. It tells your constituency that you are taking our national problems seriously. It says to voters that you are doing absolutely everything possible to resolve the problem which affects them so directly, although it does not directly affect Cabinet Ministers, who have back-up generators paid for by voters.

It also allows politicians to take specific actions that afford them greater freedom of movement. With a good spin, almost anything could be justified these days under the guise of the “National State of Disaster” and in the interests of ending load shedding.

But political action in propagandist isolation does not change the laws of physics or solve much in the real world. Fixing power stations, adding more power to the grid and making sure the system does not keel over are the actions that bring meaningful change. 

Additionally, it is not clear what real-world action would really be taken.

For example, SANDF soldiers are already outside several power stations. There is no evidence that they have been able to stop sabotage or had any significant impact. If deploying soldiers doesn’t lead to more megawatts being available, how would the declaration of a national state of disaster?

Regulations quagmire

What is clear, and where such a declaration would probably help, is that it is currently difficult for Eskom to move quickly. Its management has repeatedly complained that regulations around procurement are too onerous, and often require procedures that are way too lengthy.

During the Covid-19 pandemic, the national disaster regulations allowed private hospitals and government hospitals to work together in a way normally made illegal by competition law. This law was suspended for the duration, leading to better care for patients.

Perhaps the life of Eskom’s executive could be made significantly easier too.

There has been much public criticism of the energy regulator Nersa, with several critics complaining that it takes too long to make decisions and that processes involving public consultation take too many months. In one case, it was reported that an entire application by Eskom to add 3,000MW to the grid through gas generation was denied because it had been submitted under the wrong paragraph of the Act.

Perhaps a speeding-up declaration would have an impact here and allow Eskom and other generators to bypass some of these processes to deliver faster.

But what will be vitally important is the actual regulations that are signed into law under the disaster regulations.

Misaligned Cabinet

It may be simple for a President to announce Cabinet is declaring a National State of Disaster. Much more complicated is the process of finalising the regulations that give effect to that. These would have to be agreed to by Cabinet.

Up until this point, it has not been clear that Cabinet has been aligned on how to solve the power crisis. The same people who may disagree on what to do now would surely disagree on what regulations should be introduced.

There is also the risk of nonsensical regulations being passed. If it was illegal to buy open-toed shoes during a pandemic, could toasters and hairdryers be banned on the grounds they consume too much electricity?

Within this is another issue.

Currently, under the legislation, regulations are agreed to by Cabinet, but signed into law (temporarily) by the Cooperative Governance Minister. This is currently Dr Nkosazana Dlamini Zuma. There is some speculation that Ramaphosa may be preparing to remove her from Cabinet after she publicly defied ANC instructions in Parliament and voted to continue with the Phala Phala investigation.

But would Ramaphosa really want to increase her legal powers?

Corruption threat

At the same time, there are many risks for the ANC here. During the pandemic, the National Treasury relaxed certain regulations around the way provinces spend money. The result: massive corruption.

Just in Gauteng the husband of the President’s spokesperson was accused of making a fortune, the Health MEC was fired, and nearly half a billion rands were wasted “defogging” classrooms that did not need such treatment. These deals were agreed to on WhatsApp under the person who is now the Premier of the province, Panyaza Lesufi.

This led to huge public anger and frustration, and perhaps, contributed to the ANC’s poor showing in the local elections in 2021, where it fell below 50% for the first time (it should also be remembered that load shedding played an important role here too).

Then, last year, after the massive floods in KwaZulu-Natal, national government promised R1-billion in aid for the province.

The response was widespread cynicism, and even derision. It was proof that in the minds of many voters, the ANC is now guilty until proven innocent.

A stunning reversal after KZN floods — the ANC now guilty until proven innocent

The risk for the party here is if the same is seen to happen again. While load shedding and corruption are likely to be key issues in next year’s elections, if it was perceived that ANC members were making money out of it, the party could well suffer catastrophic losses.

Karpowership billions

For the cynical, this declaration would be all about the Karpowership deal. In its first proposal, this would have seen power barges providing electricity on a 20-year basis, for a price of around R228-billion (yes — that’s “billion”). Then, last week, Energy Minister Gwede Mantashe said perhaps it could be on a 10-year contract. It is certainly clear from recent events that this deal is still on the table.

A declaration of a National State of Disaster might well allow the government to ignore environmental regulations and Nersa procedures, and thus quickly push the deal through, tying South Africa up in a very expensive 10-year contract for electricity we may only need for three years.

At the same time, such a declaration could also have other political consequences.

State of ANC-made disaster

When the government declared a National State of Disaster over the pandemic, while the legislation may not have been appropriate, at least the ANC could not be blamed for a virus. This is not the case here.

Essentially, the ANC would be declaring a National State of Disaster to fix a problem that was created by itself, to get around regulations that the ANC-controlled Parliament passed into law.

It would be taking this step to fix a mess entirely of its own making. It would be an admission that it has created this situation, and for decades prevented itself from fixing it.

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Opposition parties would surely make the point repeatedly, and suggest that “South Africa is a disaster only because of the ANC”.

Within this may be another temptation.

Under the Covid regulations, there were plans to help businesses deal with the crisis. It is entirely possible that such a declaration now would allow the government to offer financial subsidies or help, perhaps for businesses, or even for individuals or families.

This could fold into a bigger debate on a basic income grant. And possibly lead to the ANC’s critics accusing it of trying to literally buy an election.

But wait, there are more risks.

Legal hurdles

It is not entirely certain that a declaration of our energy crisis as a “National State of Disaster” would be legal.

Disaster Studies Professor Dewald van Niekerk told Newzroom Afrika on Tuesday that there was simply no legal basis for such a decision. There is a technical series of steps that need to be followed before such a declaration can be made — Van Niekerk suggests that the situation would not fall under that definition under the current act.

This raises what could be the biggest embarrassment for the government and by extension, the ANC — that someone could go to court to have such a declaration ruled illegal and the party would once again be vulnerable to claims it does not know what it is doing. Again.

But there is also a personal risk for Ramaphosa.

While he, or officials in the Presidency, may feel that such a declaration is unnecessary or unwise, it could be politically dangerous for him to not follow the ANC’s recommendation. This is because if he were to not press ahead and declare a National State of Disaster, and load shedding were to get worse, he would be blamed.

And yet, if he does make such a declaration, and load shedding is not ended, then he could still be blamed for it.

For Ramaphosa, the safest course of action would be to move with the ANC and try to escape personal blame, making such a declaration a very likely prospect, despite all the risks it may run. DM