South Africa

ANALYSIS

Court-declared government culpability in SA’s power failure could be opposition’s great asset in 2024 poll

Court-declared government culpability in SA’s power failure could be opposition’s great asset in 2024 poll
Illustrative image: Matshela Koko; Kgosientsho Ramokgopa; Mogoeng Mogoeng. (Photo: Gallo Images / Papi Morake | Leon Sadiki / Bloomberg Gallo Images / Alet Pretorius | Waldo Swiegers / Bloomberg via Getty Images | Wikimedia)

A high court ruling that the government has breached the Constitution and the human rights of citizens by failing to run the power system properly is going to have big implications for our debates around rolling blackouts – and our politics. It is going to be used by opposition parties as proof of the ANC’s failure to provide services. The government may be forced to appeal the ruling that it must provide services, during an election when it will argue it should again be entrusted with the very same service delivery. What the ruling will not do, is end rolling blackouts.

On Friday, 1 December, the Gauteng Division of the High Court in Pretoria handed down a judgment in a case brought by opposition parties in which three judges found that government was responsible for rolling blackouts, and the numerous failures that led to it.

It also ruled that government (in the form of Electricity Minister Kgosientsho Ramokgopa) must take steps to stop the interruption of power to public health facilities, police stations and schools by the end of January.

These findings are likely to have important consequences.

Of course, the causes of rolling blackouts have been known for years. In the beginning, it was the fault of the ANC government.

It was then perpetuated by the ANC

Even now, the ANC’s internal politics stops government from working on stopping it.

All that said, this judgment is still important.

Now, the judges have declared this is the fault of the ANC government and, by implication, all of their deployees. 

The judges also explained how the lack of investment, the failure to stop State Capture at Eskom, and all the mistakes since then brought us to the current mess.

This will now allow opposition parties to throw this judgment in the ANC’s face, repeatedly and at every opportunity. In particular, they will point to the fact that State Capture is a crucial part of the problems at Eskom, and how it also prevented government from fixing the problem.

It will no longer just be an accusation or a political statement, but a legal ruling, and an indisputable fact.

The judges also say that one of the problems was that power stations were run too hard without proper maintenance, which could be important in future discussions.

This may be used as a rebuke to people who support Matshela Koko, who argue that he should be brought back as Eskom CEO because there was no rolling blackouts during his time. 

This is despite the fact the NPA believes it has enough evidence to charge Koko with corruption (the case against him was struck from the roll last week because the NPA was not ready to proceed – it has stated that it will reinstate those charges).

Even someone like former Chief Justice Mogoeng Mogoeng, during his address at the SAfm Inaugural Lecture last week, asked why the Eskom management that stopped rolling blackouts was not brought back.

For a former Chief Justice to make a comment that appears to be approving of people like Koko or Brian Molefe – despite the serious evidence against them – is simply astonishing. But it is also evidence of how far this false narrative has spread.

The ruling appears to now say that Ramokgopa, in his ministerial capacity, is the person who is ordered to prevent rolling blackouts. But he may not have the political or legal power to do that. 

He has no formal powers over Eskom, and cannot even appoint a new CEO (Public Enterprises Minister Pravin Gordhan has that power). 

Ramokgopa cannot make energy policy either, or even approve new power generation projects – it is Energy Minister Gwede Mantashe who has the power to do that.

Ramokgopa may now argue that, as the court ruling points to him, he should be given the powers to fix the problem. (That argument could be used, of course, by those who believe the judges have overreached in their findings – Ed)

In the meantime, government now has to consider the difficult question of whether to appeal this ruling.

If it does not appeal, the guilt for rolling blackouts will be firmly etched into their record, as will all other findings, in particular that government must prevent rolling blackouts at schools, hospitals and police stations by the end of January.

There is literally no chance of government being able to accomplish that without massive disruptions to other parts of the country.

Eskom contradicts Ramokgopa – forecasts more crippling blackouts over the coming months

 

The people who brought the application would probably claim that it would thus be in contempt of court.

All of this would play into the politics of the elections, where the ANC knows that rolling blackouts will cost it votes. And opposition parties know that rolling blackouts pushes up turnout for them.

Still, if government does appeal, then it will be arguing, in court, that it should not have to fulfil an obligation the ANC itself promised to deliver on every time it stood for re-election in the last 30 years.

This hapless spectacle would be presented during an election in which its service delivery track record will be the main issue.

It would not be the first time the ruling party would face such a difficult conundrum.

Ten years ago, Basic Education Minister Angie Motshekga introduced Basic Norms and Standards for schools to regulate what resources schools should have. And that very same minister has previously argued in court that her department should not have to implement her own policy.

Of course, nothing judges or lawyers say will change the laws of physics. 

Eskom power stations will not generate any more power after this ruling than they did before it. And it won’t fix an economy that is buckling under the pressure it inflicts on businesses.

But it will now increase the pressure on government to fix it. And, even more importantly, it has declared whose fault it is that South Africa is in such alarmingly bad shape.

This fundamental failure is shaping up to be a decisive debate in the 2024 elections. DM

Gallery

Comments - Please in order to comment.

  • William Stucke says:

    Marvellous! Stephen, you have neatly identified the location of the ANC Government between the proverbial Rock and Hard Place.

    It couldn’t happen to a better bunch of chaps!

    But I don’t suppose that after all these years of lying to us that they will in any way stop. It wasn’t them! It was WMC! It was the tokoloshe! It was …

  • Iam Fedup says:

    The election is there for the DA to lose, and lose it they will if past history is anything to go by. The leadership doesn’t have the nous, the courage, nor the ability to stop playing petty games in order to win it. Small organisations like OUTA and Afriforum have achieved more than they have. The DA are helping the ANC drive us all COLLECTIVELY off the cliff. This judgement means nothing – everyone knows the causes, but who will take action?

    • Peter Oosthuizen says:

      The DA at National level continues to be seen as a party of privilege. Unless and until it shows that it is aware of the issues facing the poor and the unemployed, and demonstrates that it will address these, the parties with more appeal to the vast majority of the electorate will attract more votes. By sniping at the ANC instead of laying out a coherent plan of action the DA has little to offer. A broad plank is not enough, the DA has to get into the details.

    • Stephen Browne says:

      The DA have made it clear they are a minority opposition party, totally unwilling to even play at the political game to win. Any party that wants to win a national election in South Africa needs to at least pretend to some diversity. They’re doing an excellent job (at least by comparison) in Cape Town and that seems to be enough for them. I’m looking at Rise Mzansi with a lot of hope. Please consider looking into their mission and policy positions. An extremely credible, professionally run, and long-sighted movement with little interest in playing opposition politics.

  • mongetane says:

    STEP ASIDE RULE 🤫

  • Dennis Bailey says:

    Yip. The whole ANC has been found guilty by the land’s highest court and should step aside according to their own policies, but will it/ they? Of course not.

    • Jimbo Smith says:

      Of course not. Many of the ANC inner circle are circling and slobbering furiously at the trough perhaps thinking their days might be numbered. In any sane democracy this pathetic excuse for a governing party would have been jettisoned a long time ago.

  • Francois Smith says:

    And here the ANC is wondering why the systems broke. Ramokgopa and Ramauseless, allow me to quickly explain it to you: A working system that is properly maintained will keep running for some time. During that time if you get rid of the people who can maintain the system because of pigmentation, the system will still run. Then you will think that the people with the correct pigmentation is doing a splendid job and you want to ensure their vote by paying them instead of maintaining the system. Then when the system breaks, you cannot understand why those with the correct pigmentation cannot fix the system, but it is simply the result of their lack of skills and the lack of money. Your party stated that you were ready to govern, but you cannot even manage the basics in any capital intensive system: You need to keep maintaining it and you didn’t. A new power station is part of maintaining it, but oops those who could built it, were sent overseas and Chancellor House had to eat? There is another system that is to be maintained – it is called the government’s bank account. Go ask Prahvin why we have so much debt? He borrowed money to buy votes. Soon you will have no money to buy votes, not your own, not the republic’s.

  • Geoff Krige says:

    Nice analysis, but with one important mistake. You state “In the beginning, it was the fault of the ANC government”. Wrong. Back in the mid-1980s the apartheid government cut back severely, or stopped new build programmes and proper maintenance on roads, railways, ports, and electricity, because they had lost hope and direction. The ANC inherited a bunch of SOEs with no vision for future build. So, “In the beginning, it was the fault of the apartheid government, which the ANC government has consistently failed to correct”.

    • John Kannemeyer says:

      Geoff, that is nonsense, Kendal Power Station was commissioned between 1988 and 1992 producing 4000 Megawatts of power, you are just perpetuating the narrative that the issue of Eskom failures is because of the previous government, not the present government.

    • Alpha Sithole says:

      You sure it wasn’t JvR’s fault? Absolute balderdash!
      The current government are simply not skilled, educated, qualified or honest enough to run the country or any of the state-owned departments or entities. What was in place has been dismantled or destroyed, mostly for self gain over the past 30 years. The easiest excuse is that of “… but this is what I inherited…”

    • Tony B says:

      Vasco da Gama should not have boarded that Caravela.
      Hey, how far back should we appropriate blame?

    • Malcolm Mitchell says:

      Mr Krige, your statement about roads is not that accurate, cannot talk for the others you mention. I was head of national roads at the time and have some background. Yes the money allocated by the fiscus for roads in general started to diminish at the start of the 80s – the answer we were given was that is was needed to fight the war in Angola. But as far as national roads were concerned we took to tolling to make up the deficit. In 1986 the expenditure on national roads IN CONSTANT RAND VALUES was the same as it was, on the average during the 70s the so-called golden years for roads. Also there was no reduction in national road maintenance — in fact in our budgeting maintenance always took precedence and at times reached 70% of the budget.
      Finally I am not a NP supporter in giving these facts, in fact I have been a DA supporter for as long as they or their predecessors in another name have been in business! I just like the discussion to be based on accurate facts and not political hype. Doing this would remove the heat from the kitchen. Also the neglect of all roads by the ANC has been multiple orders of magnitude worse than the NP regime when in general roads were run on strictly engineering principles, not political ones as now they are.

  • Daniel Bower says:

    Brilliant

  • Middle aged Mike says:

    The judge remover in chief will probably sort this out for them before it gets too messy. What a banana republic we have come that it falls to the courts to tell us that the government we have elected in every election since 1994 are in breach of their constitutional obligations. We must be the most criminally stupid electorate in the world.

  • Geoff Coles says:

    Goodness, even Stephen Grootes has come out against Government……

  • Flapster Karos says:

    We knew long ago who is to blame for the mess Mzansi is in. Eskom, Transnet, SABC, Post Office, SAA, all SOEs, the municipalities, etc. The fact is the very same ruling party in government will do everything in its power to convince voters to give it another 5 years to attend to the mess. Many will believe this lie and many will give them another chance. The reality is the green, black and yellow may again rule Mzansi while it dies at the hand of its ruler. Tragic.

  • Con Tester says:

    The judgement against the ANC must be interpreted as much more than an indictment of incompetence, corruption, freeloading, lethargy, and neglect at Ekskrom. An intermittent national power supply affects not just education, service provision, and policing. It undermines just about everything else, including, perhaps most importantly, the country’s economy, which is in shambles in large part as a result of unreliable power availability. The knock-on effect of a weak economy is unemployment and elevated crime levels. All of this, too, is to be laid at the ANC’s feet. In short, just about everything that is wrong with SA is the result of the ANC’s narcissistic malfeasance and Dunning-Kruger ineptitude. This is what the judgement also says, albeit by direct implication.

    If SA’s opposition parties cannot make great political hay bales from this, then we are doomed.

    That said, it’s a given that the ruling will be appealed—all the way to the ConCourt if necessary. As the author points out, not doing so would be tantamount to an admission of guilt, which is far beyond the ANC’s probity horizon, and more so with national elections just around the corner. Kicking its own rusty cans down the road for as long as possible is just one more squalid tactic in the ANC’s bag of deflections.

    • Con Tester says:

      P.S. I note with enormous approval that Stephen Grootes has stopped using that detestable euphemism—i.e., “load shirking”—which was cooked up to soft-pedal their relentless f**k-ups, and now he refers only to “rolling blackouts,” which is much closer to the truth of what Ekskrom and the ANC are inflicting on the country.

      • Middle aged Mike says:

        I agree wholeheartedly. It’s an example of New Speak weasel wordery that’s intended to normalise the abnormal. Another good example is when rioting, looting and the destruction of property are referred to as ‘service delivery protests’. Journalists in SA the work of the ANCs propaganda department by using them.

  • Rasmus Jensen says:

    And just like that the former CJ is back to spewing nonsense and misinformation.

  • Josie Rowe-Setz says:

    Thank you for this. I am very worried about electricity and farming. Food security is critical, what will the consequences be for people and food if the rest of the country has to take an energy pounding? Will there be electricity for temperature control (chicken, horticulture, eggs etc,) milking, irrigation? And if there isnt?

  • Mbulelo Journey says:

    I don’t really agree with the author, it’s obvious to all that the government is responsible for the performance of an SOE under it’s control. Don’t know how many people will change their minds because a judge has now said it. It would be silly to appeal but the leadership of the ANC has done worse (it would make more sense to ask for more time or explain the practical challenges if they exsist).

  • Lucia Walker says:

    So, if Electricity Minister Ramokgopa has basically no power to take decisions, as these powers are with Mantashe and Gordhan – can anyone tell me why we have to have an electricity minister?

  • Matthew Quinton says:

    So a court has just made a ruling confirming what every intelligent SA tax payer ALREADY knew, in a statement which none of the tax eaters will, can or want to read.

    This ruling is AS useful as a court stating that in illiterate person must become literate… or stating that an ANC member must become honest.

    The court might as well order someone to learn to fly.

    What’s the point? So the opposition can add this to the election campaigning?

    But people… the ANC’s voting fodder ONLY care about T-shirts, food and empty promises. Over 50% of the country are 1 full tummy away from casting the exact same vote as they have for the last 25+ years.

    Ok so great. Now we know the ANC is to blame…..

    So what?

    I mean REALLY…. does anyone reading this still believe that the ANC as an organisation actually gives a flying F%$K about court rulings, opinions, law, the constitution or frankly ANYTHING on earth besides their next chance to dirty their snouts at the feeding trough?

  • jopievandeijzen says:

    This blaming and vingerpointing does not help anything or anybody not even the country. It is quite clear the ANC has no vision and is not competent to govern. We need young people with vision ambition and skills to move into the future. There are many excellent good young black people who can do this. Just kick out old corrupt kaders otherwise we face Armaggedon.

  • Ernest Lintnaar says:

    Quote from an article I read today:
    “ANC Legacy
    I see that Cyril Ramaphosa said we must praise the ANC for all that they have delivered to SA since 1994
    The list is endless. R/$ from 3.65 to R19+ since ’94
    Petrol price from R2.65 to R24+ since ’94. SA economic growth down from 4.5% in 94-R/S terms to 0.3% to now -R/S terms. They’ve lost Iskor, Transnet, Spoornet, Portnet, SABC, Post Office, SABC, SAA & Eskom since ’94. They’ve lost 44 000km of roads since ’94. They’ve increased our crime levels to exceed both those of Mexico & Columbia on the mean index since ’94. They’ve built only 400 000 houses for the black population group, whilst our total population has increased form 35 million to 65 million since ’94
    They’ve managed to close-down 1.2 million small businesses since ’94. They’ve managed to get 1.4 million tax payers emigrated since ’94. Of whom 400 000 contributed to over 15% of the total personal income tax.
    They’ve run 22 cities into the ground since ’94. They’ve created 480 new municipalities & managed to run them all into the ground since ’94. Managed to pollute all our major rivers since ’94 to the extent that the entire eco-system is dead. They’ve managed to destroy 4 major dams in terms of ecoli levels since ’94. They’ve killed the St. Lucia estuary since ’94. They’ve bought 3200 milk farms since ’94 of which only 3 are still operating. They’ve bought 8400 cattle & citrus farms since ’94 only 23 of them are still producing
    African National Crooks/ Criminals”

    • Gerrie Pretorius says:

      Thank you Ernest. Your stated “achievements” prove the totally uselessness of the anc, ever since its inception more than 100 years ago.

  • Richard Penwill says:

    Thank you for an excellent article. I agree that the ANC might be unphased, but it is nonetheless a very valuable judgment for at least seven reasons:
    1. Knowledge and opinions are easily claimed but as easily lost, contradicted and denied over time especially in our age of fake news. This judgment arises out of a consolidation of three different applications all covering similar ground. These were brought by a large number of different organizations against inter alia Eskom, the president and each and every involved branch of central and provincial government. All the respondents were represented and had the opportunity to persuade the full-bench High Court that they were innocent of wrong doing. They all manifestly failed to do so. As a formal record of this chapter and stage of our sorry saga, this independent judicial assessment and exposition is priceless to the truth. This is especially because, (as Stephen Grootes says) the findings become matters of proven fact not mere allegations and opinions (however obvious or deeply felt).

    2. The judgment is founded on the objective standards laid down by the constitution. It highlights the role and value of the constitution which empowers the courts to hold the executive to account against those standards. In other words, it is a conspicuous example of the constitution in action.

    3. The ANC government has demonstrated its incompetence in a multitude of ways but, in particular, its disastrous management of Eskom reaches deep into every nook and cranny of the land and is most commonly felt personally at every level and on a daily basis. Loadshedding itself, is potentially the most powerful, economical and effective negative advertising campaign-vehicle that one could possibly imagine being stacked against a ruling political party. By being factually accurate and strong, this judgment fully answers the potential ANC counter of “Yes, but . . .” This could be a key factor in the results of the 2024 General Election.

    4. Since the government’s attempts to fix Eskom have failed so abjectly, the judgment allows an over-riding inference to be drawn that Step 1 for fixing Eskom is to replace the government with competent and honest people. Apart from the ANC party facing execution proceedings, and the Phala-Phala scandal not yet laid to rest, there are many other electorally persuasive factors. This judgment is one of them. (If the ANC is not ousted completely, then hopefully they will at least no longer be able to stretch to a two-thirds majority in order to tinker with the constitution).

    5. Furthermore, the judgment ordered the Minister of Electricity to ensure that steps are taken to exempt from loadshedding all public hospitals and clinics, schools and Police Stations. On ANC-Eskom’s past form, this strongly suggests that we can look forward to the pantomime of a second round to this litigation – and just before the election!

    6. The very first remark in the judgment is “if courts could end load shedding, they would but they cannot and it is not their function”. I think that when André De Ruyter was appointed CEO of Eskom in December 2019, it was on merit and there was a genuine hope that he would lead the way to repairing Eskom and make it reliable and functional again. In the event, despite his skill and will, he couldn’t do so for a number of extraneous reasons which he has set out in his book ‘Truth to Power’. De Ruyter has faced vehement criticism and has been blamed and cited as a scapegoat. He now even faces the prospect of being sued. This judgment’s assessment of Eskom’s woes and mismanagement represents a comprehensive vindication of De Ruyter’s position and the story that he told. Those who sincerely doubted De Ruyter will now have a good objective reason to revise their views.

    7. I particularly welcome the timing of this judgment: just before the onset of what promises to be a fairly blacked-out Christmas holiday period with a general election just around the corner.

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