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The DA’s flip-flopping on Eskom State of Disaster is embarrassing and legally fraught

The DA’s flip-flopping on Eskom State of Disaster is embarrassing and legally fraught
DA leader John Sttenhuisen. (Photo: Gallo Images) | Eskom pylons. (Photo: Gallo Images) | President Cyril Ramaphosa. (Photo: Shelley Christians)

The DA declared its support for the declaration of a State of Disaster to deal with the Eskom crisis as far back as May last year — only to turn around and reject it when President Cyril Ramaphosa embraced their idea.

Thanks to well-timed rolling blackouts in the Cederberg, I was spared having to watch yet another of President Cyril Ramaphosa’s State of the Nation Addresses (Sona) last week. From what I gather from the text of the speech and responses from the commentariat class, the speech was too long, exceptionally tedious, too technocratic, and lacking in heart.

Ramaphosa also seemed to have delivered the speech with the charisma and energy of a pap snoek. It was also a blessing to be spared from having to witness yet another round of the tedious big-cock politics of disruption so beloved by the EFF, as well as from the usual displays of triumphant philistinism by some ANC and opposition MPs.

To be honest, had I been given a choice between having to watch Ramaphosa delivering the 2023 Sona, or having to spend several days trapped on the MSC Sinfonia with other Kappityt Festival cruise passengers and being forced to watch every single Steve Hofmeyr performance on that cruise, it would have been a difficult choice to make.

With Steve being booted from the cruise, the Kappityt Festival would have won hands-down — even if it meant that I would have had to listen to Karlien van Jaarsveld singing her famous hit, “Rooilipsoene”, 10 times each day. Go, Karlien! (If I may make a suggestion to the organisers of the Kappityt Festival, why not invite Dodo Nyoka, the young cowboy who sings in Afrikaans, and had a hit last year with his song, Foto’s, in which he sings about wanting to enjoy life by getting a bit drunk, having a braai, and making a few mistakes.)

The big “news” of the night was obviously the declaration of a national State of Disaster, ostensibly to allow the ANC government to fix the rolling blackouts crisis created by the very same ANC government over the past 15 years. As I argued last week, it is not clear that the declaration of a State of Disaster will allow the government to do much to deal with the crisis that it would not have been able to do otherwise.

But the most surprising development of the night came when DA leader, John Steenhuisen, issued a statement before the President’s speech even ended to announce that the DA had “already briefed our lawyers to challenge the announcement in court”.

Claiming (quite correctly, I think) that the government was grasping at straws, the DA leader also claimed that the declaration of a State of Disaster was “dangerous” and “desperate” as it would lead to a looting frenzy.

The statement was, to say the least, rather odd — unless we assume that it was an act of empty political theatre aimed at the DA’s core constituency. Why brief lawyers to challenge the declaration of a State of Disaster (I assume this is what the DA leader meant to say, as one cannot legally challenge an “announcement”) even before regulations and directions have been issued?

In the absence of such regulations and directions, it would be extremely difficult to assess whether the declaration (as well as the measures taken in terms of it), were unlawful, not least because these regulations and directives will give an indication of whether the government would be able to convince a court that the declaration was “necessary” to deal effectively with the power crisis.

What makes the hasty announcement of court action even odder is the fact that the DA is already challenging the constitutionality of parts of the Disaster Management Act, arguing, among other things, that what constitutes a national disaster “is so vaguely defined that the decision almost [sic] amounts to a discretion”. (If the criteria are vague, it means that the decision to declare a State of Disaster — as opposed to specific regulations adopted in terms of it — would be difficult to challenge in court.)

But what got the commentariat class most excited (yes, I am obviously a member of this class), was the fact that the DA declared support for the declaration of a State of Disaster to deal with the Eskom crisis as far back as May last year — only to turn around and reject it when the President embraced their idea. Evidently, the party was caught out flip-flopping in a manner that would even impress EFF leader Julius Malema.

To limit the pedantic hair-splitting for which the usual party hacks are infamous, let me provide the precise wording of the DA’s pre-Sona position. The DA first made the call in May 2022 for “Eskom to be declared a State of Disaster” to “ensure, among other things that a moratorium is placed on unnecessary regulatory requirements”.

In July last year, the DA “clarified” its position by explaining that the party did not support the declaration of a state of emergency, but rather the declaration of a “ring-fenced” State of Disaster “that is fully accountable to Parliament”.

When several journalists and commentators pointed this out, the DA decided to gaslight voters and journalists by claiming there was no contradiction between the party’s position before and after Sona.

Channelling his inner Lindiwe Sisulu, DA MP Ghaleb Cachalia even accused journalists of spreading disinformation about the DA’s position, and demanded that these journalists apologise to the DA.

Luckily I need not say more about this bizarre attempt to deny reality, as Ivo Vegter, who is sympathetic to the DA, explains it in sufficient detail in an opinion piece published in The Daily Friend, the online newspaper of the ironically named “Institute of Race Relations”.

I find myself — for once — in agreement with Vegter that the DA scored a serious own-goal with its gaslighting. Sadly, this is yet another, and entirely preventable, example of what Prof Somadoda Fikeni memorably described as the DA’s tendency to “mutilate itself in a corner, unprovoked”.

Conjuring up every drop of interpretative charity available to me, let me assume that the DA really did not say what it said in their pre-Sona press statements, or perhaps that it did not realise what the consequences of its original proposal would be.

Taking the proposal at face value, I will now try and explain why the DA’s proposal for a “ring-fenced intervention” (as Steenhuisen renamed the DA’s position in an interview with News24) that would allow for robust parliamentary scrutiny and oversight, may be both unworkable, and unconstitutional.

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In his News24 interview, Steenhuisen suggested that the DA supported a ring-fenced State of Disaster/intervention which would focus “on specific aspects of the energy crisis to mitigate its effects and address structural shortcomings to end it”.

This could include the scrapping of “tax levies for Eskom for the purchase of diesel or exempting Eskom from certain labour legislation or removing the red tape preventing alternative energy sources from entering the grid quickly”. (To be fair, similar suggestions have been made by more than one commentator expressing qualified support for the declaration of the State of Disaster.)

The DA leader further suggested that this could be done through non-constitutional measures such as presidential and ministerial directives, as well as legislation in terms of section 44 (2) of the Constitution. The DA has also proposed the creation of a National Assembly ad hoc committee to oversee the implementation of these measures and to hold the executive accountable.

The first problem with this proposal is that much of what is proposed would be unconstitutional and invalid. As a start, presidential or ministerial directives cannot be used to exempt Eskom and other entities involved in the generation or distribution of electricity (or anyone else, for that matter) from obligations imposed on them by legislation — even if Parliament attempts to delegate this power to the president or approves the directives.

This is so, not only because it would be in breach of the separation of powers doctrine, but also because it would be in breach of the provisions of the Constitution prescribing the procedures to be followed for the valid adoption or amendment of legislation.

For example, the only way to exempt Eskom from certain labour legislation is for a bill amending the relevant legislation to be tabled in Parliament, and then for Parliament to adopt that legislation after following the procedures prescribed in section 75 or 76 of the Constitution. (This process usually takes between six months and two years to complete.)

The scrapping of tax levies on the purchase of diesel by Eskom runs into a similar problem, except that section 77 of the Constitution imposes additional procedural constraints on the adoption of money bills (which includes bills that impose or abolish national taxes, levies, duties or surcharges).

Of course, after the minister of finance tables his budget next week, MPs (including DA MPs) may propose amendments to the budget, including by proposing the scrapping of levies imposed on the purchasing of diesel by Eskom, as long as they follow the complicated procedures prescribed in the Money Bills Amendment Procedure and Related Matters Act of 2009, and as long as such an amendment is supported by a majority of MPs.

Where red tape is caused by regulations or directives issued by a relevant minister (and where these regulations could be scrapped without falling foul of the primary legislation), they could be repealed by the self-same minister. However, Parliament does not have the power to instruct a minister to repeal regulations, but MPs sitting on the relevant portfolio committee can hold a minister to account as they see fit.

But by far the most embarrassing aspect of the DA’s proposal — far more embarrassing than its flip-flopping and its tortured attempts to argue it did not flip-flop — is its suggestion (amplified on Monday by Cilliers Brink, the DA “shadow minister” for cooperative governance and traditional affairs), that a set of disaster measures could be brought to Parliament “as allowed by section 44(2) of the Constitution” to deal with the problem.

When I first read this, I fleetingly considered the possibility that Steenhuisen and Brink had sought legal advice on the matter from suspended Public Protector, Busisiwe Mkhwebane and her current legal team.

To understand just how uninformed and misguided this suggestion is, one has to understand that section 44(2) of the Constitution only grants powers to the national Parliament to adopt legislation on the short list of topics over which the Constitution grants provincial legislatures or municipal council exclusive jurisdiction.

Section 44(2) allows the national Parliament to intervene and pass legislation that trumps the legislation passed by provincial legislatures or municipal councils on the listed topics, but only when it is necessary to “maintain national security; economic unity; essential national standards; to establish minimum standards required for the rendering of services; or to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole”.

Now for the punch-line. The most important topics listed in schedule 5 (over which provinces have exclusive competence and to which section 44(2) would apply) are abattoirs, ambulance services, provincial archives, provincial libraries, liquor licences, provincial museums, provincial planning and cultural matters, provincial sport, and provincial roads and traffic.

The most important topics over which municipal councils have exclusive competence are beaches and amusement facilities; cemeteries and funeral parlours; fencing and fences; licensing of dogs; markets, noise pollution; street trading; street lighting, and traffic and parking.

It is difficult to imagine that any aspect of the Eskom crisis was caused by provincial legislatures or municipal councils passing legislation or by-laws on any of the topics listed in schedule 5. (To pre-empt claims by members of the blue troll army that I am guilty of spreading disinformation, let me suggest, only somewhat tongue in cheek, that the exclusive power of municipalities to regulate street lighting may be the one exception.)

It is all rather depressing, and not only because it would be good for the country if the official Opposition (and other opposition parties) acted in ways that enhanced its credibility and legitimacy, instead of shooting itself in the foot at every opportunity it gets.

The theory here is that the more effective and credible opposition parties are, the more competitive elections are likely to become, and the more competitive elections become, the more power voters have, and are perceived to have, to hold the governing party accountable.

But it is also depressing because what the DA proposals also illustrate is that there are no quick-fix solutions for the electricity crisis. The politicians who tell voters otherwise are lying and they must surely know this. Such politicians potentially pose a threat to our democracy.

When large numbers of citizens embrace the kind of magical thinking that allows them to ignore the facts, the science, and everything else, and makes them believe that the party of their choice will make the impossible happen, they inadvertently prepare the ground for the takeover of our democracy by populist and/or fascist political parties. DM


Comments - Please in order to comment.

  • Pet Bug says:

    I’m very glad that Prof had an extra week off lolling about them hills, what with all the chaos on campus.
    And had time to pen us a decent snotklap of how silly the DA is suggesting a way out the mess thanks to our once-liberators. (Do they have any legs left let alone colandered feet…?)

    Looking forward to Profs take on the wonderful SoD the Pres has gazetted, with no regulations in sight. And hapless ministers on tenterhooks.
    Surely this declaration is a far more worrying threat to our democracy by the ruling party than that by the opposition who read sections of the law not as clearly than yours truly.
    Think you overcook this Prof. And chill a bit more.

  • Fanie Rajesh Ngabiso says:

    Go for the DA. Billions stolen but go for the DA. Useless government but go for the DA. Loadshedding level 6 but go for the DA. Rampant crime but go for the DA. Failing infrastructure but go for the DA. The mind boggles.

  • John Smythe says:

    I think that if Ramaphosa had emphasised that corruption and nepotism would be very closely monitored and immediately dealt with, him announcement would have sat better with most. But that would immediately put him in the limelight because his sister is married to Patrice Motsepe who has a significant investment in renewable energy initiatives. I don’t have an issue with that because ARC is a respectable organisation by many accounts. But it must be declared and put out there. But that would kill him politically. And an Electricity Minister…. Really?

  • Steve Davidson says:

    Methinks Pierre should rather concentrate on the law, not politics. I totally agree with the DA that the context is different to previously, and really, if Pierre thinks anyone wants that ‘crook-in-the-doek’ anywhere near the levers of a SoD then they’re totally mad, considering the cock up she made of the covid one. Or as my old mate would have said: SOD IT!!!

  • John Smythe says:

    Blah blah blah. Oh! And look at what gaslighting actually is, Pierre. It’s what your ANC friends have been doing to SA citizens for 30 years.

  • Hilton Trollip says:

    A “pap snoek”! I’ve never heard this before. Great image😎

  • Karl Sittlinger says:

    Considering what actual crimes and destruction is being perpetrated by most other parties (especially EFF, ANC), the debacle about this minor correction in viewpoint by the DA is such small potatoes, so inconsequential compared to the real issues we face every day, that one does wonder about the priorities some people have. Then again, Pierre has never been able to shrug off his strong bias against the DA, so no surprises here.

  • R S says:

    If a ring-fenced state of disaster cannot exist, what is the story with Durban and other flood areas that are under a state of disaster while the rest of the country carries on? On what grounds can we be under a national state of disaster in specific areas while others are not?

  • Cunningham Ngcukana says:

    The author is picking and choosing issues on the DA position but leaves other issues and therefore leaving readers less informed. He does not talk of the DA request during Covid of having to have oversight over the national state of disaster that was rejected by Lechesa Tsenoli, the permanent Deputy Speaker. This is while many countries facing the full might of the pandemic like the UK and others had their legislative arms functioning and this request by the DA was not unreasonable and the results of industrial scale looting are well documented. The DA then requested the amendment of the Disaster Management Act to remove the sections that they regard as problematic and to have a mechanism of oversight. The AG Report on the KZN floods on the state of disaster has deserted the author in particular the application of funds and processes let alone the blatant lies by Minister Kubayi of a R1 billion that was non -existent. Whilst it is true that it would be not legally possible to have a ring fenced state of disaster but one assumed that regulations would be crafted in such a way that they “ring’ fence the issues the DA was raising. The author does not raise the issue of taking a decision by the ANC and to some extent by government to declare a national state of disaster and then seeking legal advice which was very strange because the legal advice ought to help you to arrive at a decision. We are dealing with political issues not legal issues though they may be interrelated.

  • GPJ GPJ says:

    I get it that DM is a-political and critical of all parties. But comparing this to the EFF is a bit far-fetched. I always enjoy Pierre’s take on legal matters, but this was not his best article ever

  • andrew farrer says:

    thanks for clarifying that Pierre. Now, I’m sure you understand what the DA’s intentions are, so please, how about a solution to the problem that will be constitutional?

  • Ian McClure says:

    It has been repeatedly explained by the DA that circumstances have significantly changed between the March and SONA . Anybody listening ?
    I agree with the other comments – get perspective – failing which Prof will end on the wrong side of history .
    It is almost ( with respect ) arrogant to ” fiddle ” while RSA burns .

  • Ritey roo roo says:

    Pierre’s pontificating piffle

  • Rory Short says:

    “….they inadvertently prepare the ground for the takeover of our democracy by populist and/or fascist political parties. ”

    I thought that the ANC is a populist party and they are already destroying the beloved country.

  • Glyn Morgan says:

    So de Vos reckons that the DA made a bad call for wanting a State of Disaster. They wanted it for a specific problem. What happens if the DA releases it’s error and changes the call? They have the borls to correct an error. Bully for the DA. This article shows the immense bias from de Vos. He goes down a few clicks in my estimation.

  • Kanu Sukha says:

    Never heard of a ‘pap snoek’ … he got that one wrong ! It is actually a ‘vrot’ snoek ! Everything they touch … goes ‘vrot’ (not to be confused with fraught) like their head … CR !

  • John Forbes says:

    I find it strange all the parties suddenly rushing to defend the DA’s flip flopping.

    A flip flop is a flip flop, be it done by the DA or the EFF! No doubt all card carrying DA members! That is the Prof’s position, not to point out simple solutions to the electricity crisis which patently and regretfully do not exist!

  • Roelf Pretorius says:

    Excellent analysis. I for one was not impressed by the reaction of any of the opposition parties on Ramaphosa’s SONA address – I thought, and I think the President in his answer to the criticism from the opposition, showed me to be right, that the President was giving his intentions so the opposition can come forward with more ideas, and if they did, it may well have been implemented. After all the opposition MP’s are also paid to make the country work and, just like the ANC, not to just try to get re-elected in the next election. The ANC in this regard does not set a good example at all, but now the opposition has shown that they also don’t. I think that maybe the voters should, in the light of this, take a serious look at BOSA, the independent candidates and even ActionSA as potential candidates to vote for, because at least they are not in parliament yet.

  • L Dennis says:

    Misleading article rather focus on the law. F

  • Leon Dicker says:

    My voting record, pre-and post-1994, came to mind as I read this article. In all that time, I cannot recall ever having voted for the governing party.

    There was the time, for example, when I lived in a constituency in Port Elizabeth where my alternatives were the Nationalists and the Conservatives. What to do? Easy! I licked the tip of the pencil and filled the ballot with a densely written essay on the relative demerits of the two candidates. By the time I finished, I had been approached several times by concerned looking polling officers (and one police constable) wanting to know if I needed help. Chalk that up to the spoiled votes.

    What to do now, though? I surely cannot vote for a party that creates a disaster and then declares itself (oh; my mistake — the electricity crisis) a state of disaster. What to do, then? What about the DA?

    It is like watching a dog chase a refuse truck and catching it. The poor dog is suddenly faced with a massive conundrum. What does it do? The answer is simple: drag its prize to court. Our judges have learnt to deal with all sorts of trash arriving at the courts’ doorsteps. I hope that by now they have also learnt the dual arts of recycling and incineration (all in an environmentally friendly manner, of course).

    In the meanwhile, I’ll take my pleasures where I find them. At present, it is the perplexed and embarrassed look on the face of the dog (the DA) with its captured refuse truck. Be careful what you ask for: someone may be listening.

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