South Africa

GOVERNANCE FAILURE OP-ED

The mooted National State of Disaster – ANC desperation or cynical public relations exercise?

The mooted National State of Disaster – ANC desperation or cynical public relations exercise?
President Cyril Ramaphosa. (Photo: EPA-EFE / Thomas Lohnes / POOL)

News that the National Executive Committee (NEC) of the ANC has urged the ANC government to declare a National State of Disaster to address the energy crisis (a crisis created by the self-same ANC government) has – predictably – been met with extreme scepticism and even outrage.

While there are good reasons to be sceptical about this proposal, this is not primarily because there is any chance that the government will use its disaster management powers to ban Woolies chicken or the sale of alcohol, or to impose other restrictions of the kind imposed during the Covid-19 crisis (as some commentators have suggested), but rather because a declaration of a State of Disaster will largely be meaningless as it will not grant the government the kind of additional powers that would allow it to circumvent their existing legal obligations. 

In any event, it is far from clear that a declaration of a State of Disaster to deal with the energy crisis will be lawful. 

This is because such a declaration may not meet the legal requirements for the declaration of a national disaster, as set out in the Disaster Management Act. In terms of the Act, a national disaster may be declared in narrow circumstances in order to deal effectively with a disaster. The Act defines a “disaster” as a:

“progressive or sudden, widespread or localised natural or human-caused occurrence which causes or threatens to cause death, injury or disease; damage to property, infrastructure or the environment; disruption of the life of a community; and is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.”

While this definition is quite broad, and on a generous reading may thus apply to the Eskom crisis, reading the Act holistically, it is at best unclear whether it applies to a situation where the “disruption of the life of the community” was caused by many years of government mismanagement, corruption and incompetence and could only be fixed by addressing government mismanagement, corruption and incompetence. 

This view is bolstered by the fact that section 2(1)(b) of the Act makes clear that the Act does not apply to situations where the “disaster” can be “dealt with effectively in terms of other national legislation aimed at reducing the risk, and addressing the consequences of an occurrences of that nature”. 

I would argue that the Act was not meant to address the kind of systemic governance failures that caused the ongoing energy crisis and makes it close to impossible to fix it, but rather to deal with unforeseen situations that could not be dealt with effectively by relying on the existing legislation. 

In the case of Eskom, the problem is not that the government lacks the legal power to fix the problem, but rather that it has for many years lacked the political will to do so, and that it has not done its job to ensure that Eskom is run competently and free of serious corruption. 

Put differently, the problem is linked to systemic governance failures over many years – something that cannot be fixed by declaring a State of Disaster and taking a few legal shortcuts. 


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In light of the above, a declaration of a State of Disaster to deal with the energy crisis may be vulnerable to legal challenge on the basis that the Disaster Management Act does not apply to the government-created load shedding crisis. 

But if we assume for the moment that I am wrong, and that the declaration of a National State of Disaster to deal with the energy crisis will withstand judicial scrutiny, it is not clear such a move will empower the government to do more than it is currently doing to help fix the problem. 

In fact, the declaration of a National State of Disaster may give no, or very few, additional powers to the government to deal with the crisis. 

The mistake many commentators make is to assume that a declaration of a National State of Disaster to deal with the energy crisis will allow the government to wield as much additional power as it did during the Covid state of disaster. But the two situations differ markedly. 

Most notably, unlike with the Covid crisis, the generation and distribution of electricity is extensively regulated by various pieces of legislation. What must be understood is that this legislation will remain in place and will remain binding on all. It is therefore misguided to believe that the declaration of a National State of Disaster will allow the government to bypass binding legislation to speed up the resolution of the energy crisis. 

It is important to note that section 26(2)(b) of the Disaster Management Act makes clear that the national executive must deal with a national disaster in terms of existing legislation and contingency arrangements. 

Where a National State of Disaster is declared, this can only be “augmented by regulations or directions” made in terms of the Act. But the government is not empowered to use such regulations and directions to take shortcuts to circumvent existing legislation. (This may in some cases be permissible if the government declares a state of emergency in terms of section 37 of the Constitution, but that is a different matter altogether.)

For example, the government would not be permitted to use the declaration of a National State of Disaster to circumvent the provisions of the National Energy Regulator Act of 2004 in order to undo electricity price increases adopted by Nersa. Similarly, it would not be able to circumvent the provisions of the Electricity Regulation Act of 2006, to speed up the allocation of electricity generating licences. 

It has been suggested that the declaration of the National State of Disaster is necessary to make additional funds available to deal with the crisis. This is, of course, nonsense. 

Nothing prevents the Minister of Finance from allocating additional funds for the energy crisis in the annual budget to be tabled on 22 February. It is certainly not necessary to declare a State of Disaster for him to be able to do so. 

Moreover, section 16(1) of the Public Finance Management Act allows the Minister of Finance to authorise additional expenditure “which cannot, without serious prejudice to the public interest, be postponed to a future parliamentary appropriation of funds”. 

Last, it has been suggested that the declaration of a State of Disaster will allow for a relaxation of the procurement rules to speed up vital Eskom procurement. But, once again, it is not necessary to declare a National State of Disaster to do so, as existing legislation already bestows a wide discretion on the Treasury to amend procurement rules. 

Most notably, section 3 of the Preferential Procurement Act allows the Minister of Finance to exempt an organ of state such as Eskom, from the provisions of that Act if it is in the public interest to do so. 

I would argue that the proposal to declare a National State of Disaster to deal with the energy crisis could, at best, be read as an act of desperation on the part of the governing party, based on a misreading of the powers such a declaration will bestow on the government. 

At worst, it is a cynical public relations exercise to try to convince voters that the government is doing something about the crisis, knowing that it is impossible to fix the problem in the next year or two. DM

Gallery

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  • Bhekinkosi Madela says:

    It is more likely the latter; a cynical PR exercise aimed at convincing voters that SOMETHING is being done about the crisis. The ANC president and (his failed deputy and current Justice minister) Lamola are said to be lawyers and should reasonably be expected to have SOME grasp of the Disaster Management Act.

  • Richard Bryant says:

    I know! Why don’t we replace all the seats in Parliament with bicycle dynamos and get this hugely bloated community to actually produce some volts rather than just talking about it. And with all the hot air coming from those chambers, we might even be able to power up a steam generator.

    • Cecilia Wedgwood says:

      Love that suggestion! Not to mention the wind power that could be harnessed ! a I do wish Maverick would introduce a few emojis to press. The comments are psychotherapy.

  • Mike Silber says:

    Thank you for stating most eloquently what many of us have been thinking!

  • Richard Bryant says:

    On a more serious note, perhaps Pierre can comment on the legality of power outages in the case of customers who have pre-paid meters.

    I would suggest that once I purchase electricity in advance, I own those KWH and Eskom or my municipality have a legal obligation to supply them as and when I wish to use them. I would argue that these units become my property and any decision which denies my use of them is a violation of my property rights. In addition, such an action is also a violation of the Consumer Protection Act.

    I don’t know what percentage of customers are on prepaid meters but perhaps if power outages were only applicable to those with post pay meters and those who don’t pay at all, people would be encouraged to get a pre paid meter which would be to the benefit of all?

    • GPJ GPJ says:

      Can DM give us the stats on the parties governing municipalities that are in arrears at Eskom? Selling a product, pocketing the money but not paying your supplier = theft

  • Rory Macnamara says:

    we have been in a state of disaster for decades so why make it official when it is too late?

    • Marius McMichael says:

      Spot on here and the sooner that all power consumers, who are able, realise that the SA state is a calamitous failure and make their own alternative arrangements, the better. As for the died in the wool “struggle supporters/”our people”? Remember the definition of insanity, as your await “things to get better” (Micawber style), while the rest of us systematically disengage from this failed/grifter state as we get on with our own lives.

  • Hermann Funk says:

    If I understand this article correctly, declaring a National State of Disaster is another demonstration of government’s helplessness and incompetence.

  • Retief Joubert says:

    ANC: “Lets call this 15 year old disaster, that we and only we created, a disaster… Oh wait, we cannot even get that right”

    What a disaster.

  • Dennis Bailey says:

    AS ever, you are spot on.

  • Dou Pienaar says:

    Wake up South Africans! The ANC motive is simply to position them to install the KarPower ship solution so that they can steal more money.

    • Lynn Mcgregor says:

      What is the actual culture of this country? What are the values, beliefs and commitments of those who were elected to run this country. Was it really for the people? If not what should/can we do. Some have begun. Most are sitting in the dark.
      Lynn Carneson McGregor. Co-author ‘Governance and Leadership. Juta 2023

    • John Cartwright says:

      Brilliant analysis. Thank you.

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