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Eskom blocks Free State town from using solar power to reduce load shedding

Eskom blocks Free State town from using solar power to reduce load shedding
Gauteng High Court Judge Edwin Molahlehi listens to Azhar Bham, senior counsel, present his argument for the respondents in the case between Rural Maintenance and co and Eskom, heard at the Gauteng Local Division of the High Court in Johannesburg on 5 April 2023. (Photo: Julia Evans)

On Friday – the same day Eskom is forced to implement Stage 6 due to power failures at several power stations – a private power distributor in the small Free State Town of Frankfort has had to switch off portions of a solar farm after losing a case against the utility in the high court, where it was fighting for the right to continue using alternative power to reduce the impact of rolling blackouts.

On Thursday, 20 April, Judge Edwin Molahlehi handed down his judgment electronically, dismissing private electricity distributor Rural Maintenance’s urgent application to preserve the status quo filed against Eskom – meaning it is no longer allowed to alleviate rolling blackouts in Frankfort with alternative power from a nearby private solar farm.

Read more in Daily Maverick: Small Free State town in high court battle with Eskom over use of solar energy to reduce load shedding

From February this year Rural Maintenance’s subsidiary, Rural Free State (RFS), entered a three-month trial with Eskom where it was allowed to “self-load shed” on behalf of the Mafube Local Municipality.

RFS implemented “voiding” – reducing the amount of load shedding Mafube had as a result of the electricity they could provide from a newly commissioned private solar farm in Frankfort, which currently has a generation capacity of 4.26 megawatts.

For example, in one week in February, RFS was able to reduce load shedding by 18%, due to the additional power from the sun farm, which it said had “resulted in less diesel being used and/or less inconvenience suffered”.

But on 16 March, the applicants said they had received correspondence from Eskom saying that if it didn’t stop “voiding”, the utility would not allow RFS to control load shedding anymore. That’s when Rural took Eskom to court, applying to preserve the status quo until the National Energy Regulator of South Africa (Nersa) finds a resolution or investigates its complaint.

Because Mafube Municipality never provided its signed affidavit there was no legal confirmation that the first and second applicants had received authorisation to file the case against Eskom.

Then on 5 April, Eskom appeared at the Johannesburg High Court and brought up that one of the applicants in the case – Mafube Local Municipality – had not provided an affidavit showing their support of the application.

Advocate Etienne Lasuschagne, who is representing the applicants in the case (Rural Maintenance and co) told Judge Molahlehi that the affidavit was coming, and the hearings went ahead.

FFS Renewable Pty Ltd, a solar farm in Frankfort, Free State, owned by 21 private individuals, farmers and businesses (active in the Mafube community. The first part of its now 4.2MW of generation capacity was commissioned at the end of 2021. (Credit: SNW consulting)

Daily Maverick approached Mafube municipal manager Mothusi Lepheane at the time, asking whether the municipality supported this application with Rural Maintenance, seeing as the Mafube Local Municipality is named as an applicant in the case.

Lepheane responded: “No comment.”

Lack of support from municipality lost the case

Judge Molahlehi released his judgment on Thursday afternoon, dismissing Rural Maintenance’s application to preserve the status quo due to Eskom’s challenge of authority (the missing affidavit from Mafube Local Municipality).

The missing affidavit proved pivotal to the outcome of the case. Eskom pointed to rule 7 of the Uniform Rules of Court, which “provides a safeguard to prevent a cited person from repudiating the process and denying his or her authority for issuing the process”, according to North Global Properties (Pty) Ltd v Body Corporate of Sunrise Beach Scheme.

Because Mafube Municipality never provided its signed affidavit there was no legal confirmation that the first and second applicants had received authorisation to file the case against Eskom.

Since the municipality did not sign on, the trial came down to Rural Maintenance, a private company, and its subsidiary taking Eskom to court. For this reason, the case was considered “not properly before the Court” and therefore it failed. Rural Maintenance, Rural Maintenance Free State and the Mafube Business Forum are expected to pay all costs of the trial.

Political meddling?

CEO of Rural Maintenance Chris Bosch said in a statement to Frankfort residents on Thursday: “The sole reason provided by the Honourable Judge in his judgment, relates to the fact that the Municipality decided not to get involved in the legal matter.

“We have no doubt that should the Municipality have placed the needs of its community at the forefront, a different result may have been forthcoming. We can only hope there was no political meddling from outside of Mafube.”

Rural Maintenance has managed the network distribution for Mafube for the past 11 years, after taking it over from a struggling Mafube Local Municipality, which was losing money.

Rural Maintenance reported that the municipality has received R22-million up until September 2022 from royalties that RFS pays to it for running the distribution.

Azhar Bham, senior counsel representing the respondents, and Advocate Catherine Kruyer during the case between Rural Maintenance and Eskom at the Gauteng Local Division of the High Court in Johannesburg on 5 April 2023. (Photo: Julia Evans)

At the time of the court case, Bosch told Daily Maverick that Mafube Local Municipality was originally on board with Rural Maintenance’s plan, with Lepheane saying: “Eskom cannot do this to the people in Mafube” and that the affidavit would come.

But then the treasury official for the municipality told them, “this has got nothing to do with Mafube, this has got to do with people outside trying to make sure that this project doesn’t happen”, and when they asked for the affidavit again, it never arrived.

Rural Development speculated that the reasons for the missing affidavit could be political interference.

“We are obviously very disappointed with the outcome of the court case – especially in light of the fact that there is no negative impact for the Eskom national grid,” said Bosch. “What is especially hard to swallow is the reluctance of the Mafube Local Municipality to support Rural’s effort to lessen load shedding, while constant load shedding seems to be our future.

“Small businesses and citizens from all walks of life in Frankfort have come to rely on the reduction of load shedding when the sun was shining.”

Dumping solar power

On the same day (21 April) Eskom is forced to implement Stage 6 rolling blackouts due to the failure of generating units at the Tutika, Kriel, Duvha and Kendal power stations, RFS now has had to switch off portions of the sun farm after losing the case.

“​​This means Rural Free State will no longer be allowed to lessen the negative effects of load shedding when the sun is shining and, in turn, will have to dump unused solar energy while parts of Frankfort experience load shedding,” said Bosch.

Eskom responds

Eskom said on Friday afternoon that the statements by Rural Maintenance are “misleading as Eskom does not place any restrictions on their use of self-generated electricity”.

“Eskom welcomes the use of electricity from independent power producers that can assist in alleviating load shedding,” it continued. “What Eskom requires from RFS as a responsible participant in the national grid is to comply with the requirements of the Code of Practice in order to protect the national electricity network in the interest of the country as a whole.”

The utility emphasised that Nersa requires all licensees to implement the National Code of Practice for Emergency Demand Reduction and System Restoration Practices to ensure the fair implementation of load shedding and to protect the integrity of the national electricity grid.

Regarding the court outcome, Eskom said that as a public entity it “remains committed to implement all required measures to protect the national electricity grid”, and is relieved by the dismissal of Rural Maintenance’s application.

But as the dismissal of the case was on the grounds of Mafube Municipality’s missing affidavit, not Rural Maintenance’s failure to comply with the load shedding code of practice, Eskom said it wished to address a “misconception” – that, while it did approve RFS’ trial to self-load shed starting in February, “self-load shedding allows a qualifying municipality to protect its critical loads such as sewerage systems and water pumps from interruptions”. 

“Problems between the two parties emerged when RFS introduced ‘voiding’, a term created by them to describe a situation where they do not implement load shedding as per the approved schedules during daytime hours when their solar PV plant is in optimal operation. 

“Eskom repeatedly rejected this proposal and attempted to help RFS understand why this is unacceptable and in violation of NRS048-09. It is at this stage that Rural Maintenance opted to institute legal processes against Eskom.”

Bosch added: “Rural will make a concerted effort to continue to engage both Eskom and Nersa in an attempt to try and understand Eskom’s reluctance to support Rural’s initiative.” DM/OBP

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Comments - Please in order to comment.

  • William Dryden says:

    I smell a rat here, why should Eskom deny any independent power producers from supplying power to the municipality to offset load shedding, and why didn’t the municipality not back the power producer in its court case??

  • Craig Cauvin says:

    I think there is a lot more to this story that what we’re seeing here – Keep poking DM – the rats will pop out the sewer soon enough…..

  • Rory Macnamara says:

    Disgraceful, especially as we are are level 6. These clowns Esdom and government are heading for a showdown with the people of this country.

  • Jennifer Hughes says:

    As if we needed another reason to hate Eskom and incompetent governments ‘services’.

  • Rory Short says:

    Based on the information I have seen thus far this whole affair sounds very fishy. Please carry on digging DM.

  • Gregory Scott says:

    Ditto to all the comments.
    This is an exampe of political sculduggery at its best.
    Please keep on digging into this sad state of affairs.
    I have no doubt in my mind that the architect of the power shortages, the ANC, does not prioritize the interest of the citizens.
    Hopefully each and every citizen will realize this and vote the ANC out in the next election.
    Enough is enough.
    Voetsek ANC

  • Auke Van Der Meulen Van Der Meulen says:

    It is obvious that political instructions where given to that municipality not to support the action. As this highlights what can be done by private competent people. Better to keep everyone down.

  • Themba Nkabinde says:

    Whilst I can understand the need for centralised control of load shedding there should be no reason for the power generated by this plant not to be utilised fully. If the plant is connected directly to the town, in other words on the town side of Eskom’s battery limit (supply switch) then Eskom can load shed the town by switching off its supply but the plant would still be able to supply the town with power without affecting the Eskom grid. Conversely, if the plant is on the Eskom side of the boundary line, then it should be able to supply its power directly to the Eskom grid whilst the town is switched off. In other words, the energy generated by the plant would not be lost in either scenario, but a feed-in tariff would have to be agreed with Eskom. Of course, the second scenario would not provide direct shielding of the town from load shedding.

    • robinhesketh says:

      Indeed, I think the issue here is that the powers that be are trying to avoid a situation where certain areas are immune to the load-shedding schedule (carefully worked for fairness) as this is seen to contribute to social and economic inequality. However, switching off installed and functioning power production at this time is unethical and impractical and why this of all things should become a constitutional sticking point after that fine document has been so thoroughly muddied is almost comical we’re it not so shamefully tragic.

    • Rod H MacLeod says:

      Yes – your second scenario is what Eskom wants. This quote says it all: “The utility emphasised that Nersa requires all licensees to implement the National Code of Practice for Emergency Demand Reduction and System Restoration Practices to ensure the fair implementation of load shedding and to protect the integrity of the national electricity grid.”
      For “fair implementation of load shedding” means Eskom wants Frankfurt to be hammered like everyone else. Frankfurt’s solar power must be for everyone, not just Frankfurt. See Middelhoven’s reply to William Stucke’s post below.
      If you want uninterrupted power from Eskom, move to Namibia or Zimbabwe – they don’t have load shedding, even if their Eskom accounts are in arrears.

  • William Stucke says:

    It’s important to understand that Eskom won this case on a narrow technicality.

    What isn’t clear is why they felt it important to contest the issue. Their claimed reason was to do with the LoadShitting protocols in NRS-048. However, as other have answered, that’s a pretty weak excuse.

    • . . says:

      Eskom seem to be claiming that the town’s loadshedding is over and above what the solar plants generate, and the town is claiming that they meet the amount of load reduction required. I think Eskom is worried about cities and towns going direct to IPP’s and that in the future they will base the amount of power to be cut on the total amount of power available and not just the Eskom supplied portion, after all the optic will not be good if some places (cough the WC cough) have less or no loadshedding.

  • Bryan Macpherson says:

    More ANC cadres exerting power over their helpless “subjects”. The people of Frankfort get the government they deserve.

  • Jon Quirk says:

    Eskom threatened Mafube Municipality that they were going to do what exactly? Or threatened individual ANC councillors?

    Smells like, to me, Gweezy’s fingerprints all over this …..

  • Robert Pegg says:

    Eskom has a point that the Municipality did not support the application with an affidavit. I had a similar problem years ago when I loaned used fire trucks to a Municipality. The Municipality promised to get an import permit required in order for the fire trucks to remain permanently in South Africa. They never did this and the fire trucks were seized by Customs, leaving the Municipality without any fire trucks. I have never done business with any Municipality in South Africa since.

  • Diana Bidwell says:

    Eskom can’t do its job and won’t let anyone else do it either. State Monopoly Capital, democracy is dying in SA

  • Paul Fanner says:

    So will Cape Town have to switch off its hydropower, and not build the solar farm?

  • Dave Martin says:

    The question that naturally follows is what are the implications of this action by Eskom for the numerous municipalities which have announced plans to secure alternative electricity supplies from IPPs? Various cities have announced deals worth billions of Rands to alleviate loadshedding – surely this move by Eskom puts those investments at risk?

  • Brian Cotter says:

    Going back into my low level English Literature education – If that is against the law, then the law is an ass.

    • Matsobane Monama says:

      The law is the law you can’t use it when it suits you. Another question is does that solar energy cover everyone in Frankfort? I mean everyone? I doubt that.

      • Trevor Pope says:

        If the solar energy allows business to proceed, then that means jobs, and that is what is most important. When the tummies are full, then we can quibble about equity.

      • William Stucke says:

        Why would you doubt that? The town is divided into 5 areas for the purposes of electricity supply. The entity that built the solar power facility has had a contract with the municipality for 12 years. Why wouldn’t it be equitable?

        Please don’t assume a racist approach to everything, when there is no evidence.

  • brigid.dubois says:

    The reluctance of government bodies – whether national or local – to support their constituents in this country is grotesque. There is a Stalinist impulse to centralize, control and serve only the interests of government institutions not the people they serve. We saw it during lockdown in the nonsense that went on about the kinds of clothing, food and cigarettes that could be sold – an authoritarian intrusion into personal rights and determined disregard for private enterprise which meets the needs of any group or solves real problems.
    Viva Amabungane! Keep digging that dirt!

    • Frans Flippo says:

      This. ANC’s supposed “communist values” are only reflected in the fact that May 1 is a national holiday, the ANC members call each other “comrade”, and they have an unhealthy love for all things authoritarian. Other than that, they’re just greedy capitalists who don’t care about the people at all, as long as they can fill their pockets with their (tax) money.

  • Jane Crankshaw says:

    Time to tell Eskom and the ANC to get stuffed!

  • Vas K says:

    How more politically incorrect can you get? It seems that Eskom’s cadres feel that they are not hated enough yet. At least they have a gift of perfect timing. I’ve been always curious what makes people fiddle while their city / country burns. In this case the answer is obvious: it is the easiest thing to do – no effort, no skill and no IQ are required.

  • Georg Scharf Scharf says:

    Pity that the judgement was following the letter of the law and not common sense under the circumstances. Obviously the sinking ANC and its mistake of an Eskom had bad and bullying intentions in this case to assert dominance over a little town in the Free State (Emphasis on “free”).

  • Brian Potter says:

    Its sad that a solar farm which has been operating for years can be stopped by Eskom on a technicality especially when Eskom cannot fulfil its obligations. It also says something for our legal system which cannot see the wood for the trees and cannot overrule unnecessary red tape. Thanks to the businessmen who made the investment for a good cause. Perhaps the ANC cadre will be defeated in the coming election and be forced to stop feathering their own nests.

    • Philip Wernberg says:

      And we have NUM trying to steal more money from South Africans by demanding ridiculous increases, when Eskom cannot produce enough electricity, there should be a penalty if a power station operates below 80%. Include the Politicians, management and employees who are responsible for the current situation, to a reduction in remuneration, then maybe production will increase. Would be interesting to know what Mafube Local Municipality owes Eskom.

  • Lisbeth Scalabrini says:

    This makes me furious 😖😤
    Someone clever proving initiative to resolve a problem, is not allowed to do so; sounds a lot like political, state or/and bureaucratic interference.
    ” failure to comply with the load shedding code of practice”. Use common sense instead of some stupid bureaucratic excuse👿

  • andrew farrer says:

    Corrupt anc councillors probably stealing from the public purse with inflated diesel price Co tracts

  • Roelf Pretorius says:

    Well, it is time that the municipalities get on board with Eskom-shedding: where all us South Africans who can afford start to create our own electricity and the community leaders organise collective electricity generation for the communities. Clearly Mafube municipality has let its’ voters down by leaving Rural out to dry. It is time we as South Africans unite against Eskom in the same manner that we were able to unite against e-Tolling and close them down. If we could succeed with e-Tolling, we shall succeed with this also. But this is just the municipality that did not do their job, nothing more – Rural can’t replace Eskom on its’ own, the municipality must do that.

  • Jane Crankshaw says:

    The right hand no longer knoweth ( or cares) what the left hand doeth in South Africa today. It’s basically one big gemors where headless chickens run amok and the tax and rate payer continue to be buggered!

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