In his review of the recent decision of the Constitutional Court concerning a resolution by Eskom to cut off the electricity supply of municipalities that were in default of payment, Daily Maverick’s legendary and omniscient Professor Balthazar concluded that:

“The constitutional scheme was to place the primary obligation on the relevant municipality to provide its residents with electricity for which the latter had paid. The collapse of local government lies at the heart of this case. 

“The important constitutional rights highlighted by the majority cannot be vindicated meaningfully in a state as broken as the South African one. Courts can attempt bravely, as did the majority judgment, to afford temporary relief, but unless the state can be made to work for the population as a whole, as opposed to an elite who have diverted public funds into their own bank accounts, a court can only administer palliative care. 

“In addition, looming large as an implication of the outcome of this case is possible further litigation against Eskom for its breach of the rights of millions of the poor and many small businesses who now must live with the consequences of the disaster of Eskom without the benefit of generators or inverters.” 

What options are available to wannabe litigants eager to assert what they regard as their right to a reliable supply of electricity?

The majority judgment penned by Justice Mbuyiseli Madlanga in the case the professor discusses is instructive and helpful to the cause of those inclined to sue. He views the matter as a human rights issue.

The Bill of Rights in South Africa contains many guaranteed rights, which cannot easily be delivered without a reliable supply of electricity. Dignity, an environment that is not harmful to health and wellbeing, healthcare, basic education, life itself, are all implicated and all depend to a lesser or greater extent on the availability, at the flick of a switch, of electricity all day, every day.

The state is obliged to respect, protect, promote and fulfil all the rights in the Bill of Rights. That obligation ought to be attended to diligently and without delay.

The minority judgment of Acting Justice David Unterhalter views the matter as one of contract, an electricity supply contract between Eskom and the municipalities concerned. He does not regard Eskom as beholden to the long-suffering ratepayers.

Whether the contract can be construed as what the Romans called a stipulatio alteri was not a matter that arose in the case because the delinquent municipalities were not sued.

It may be possible to argue that, contractually speaking, the agreements by Eskom to supply municipalities are for the benefit of ratepayers, but it seems that framing claims for an uninterrupted electricity supply should rather be regarded as a human rights issue, as found by the majority whose decision is binding on lower courts.

When human rights are threatened or violated, it is possible to sue to vindicate them under the “Enforcement of Rights” provisions of the Bill of Rights, as contained in section 38 of the Constitution. A claimant who alleges that a right in the Bill of Rights has been infringed or threatened may seek appropriate relief in court, such relief may include a declaration of rights.

The section sets out five categories of persons who may sue. In seeking delivery of the human right to an electricity supply, it is most likely that claimants will sue in their own interests and in the public interest.

The forms of relief that courts have fashioned over the years fall into three broad categories in cases of this kind.

Three broad categories

First, the court may issue a declaration of rights. This was the result in the Rail Commuters Action Group case, in which there was a dispute as to whether the police or the rail authorities were responsible for the safety of passengers on commuter trains.

The court decided that the rail authorities were liable and issued a declaratory order to that effect. This necessitated the employment of many more security guards by them, not the recruitment of additional police to make up for the assimilation of the railway police into the SA police force in the dying days of apartheid.

Second, a mandamus is a possible form of relief. In cases against Eskom, that form of relief would involve ordering Eskom to take steps, including interim steps, to restore a reliable supply of electricity to the claimants.

The third form of relief is sometimes called a structural interdict, others prefer the name supervisory order. What happens is that the court takes charge of the remedial measures ordered by directing, in these cases, Eskom, to report to it at regular intervals on the progress being made towards giving effect to the mandatory relief ordered in each case.

All too often in cases of this kind, the respondent has proved incapable or unwilling to give effect to the mandamus granted against it. The claimants are kept in the loop and have to resort to contempt of court proceedings when respondents prove to be recalcitrant about meeting the obligations that the court order gives them.

The reference by Professor Balthazar to “palliative care” is salutary. He is in effect saying that Eskom is in its death throes and that anything it is able to do at this late stage is to be regarded as palliative in the medical sense.

Eskom’s death does not relieve obligations

The death of Eskom does not relieve the state of its obligation to respect and protect human rights guaranteed to all. Whether that obligation can be delivered on without Eskom remains to be seen. Many work-around solutions have been put in place already, with inverters and generators, as well as home solar panels, replacing what Eskom is supposed to offer in the form of a reliable supply of electricity.

As our mothers taught us, you can’t get blood out of a stone. Suing Eskom and the state for some or other form of relief based on the failure to respect implicated human rights that are infringed or violated every time there is load shedding, may well turn out to be an exercise in trying to extract blood from a stone.

Litigants will have to decide whether to invest in alternative forms of electricity supply or to sail into the treacherous waters of litigation against the state that in essence will require the state to do what it is obliged to do to secure a reliable supply of electricity for all. This happy state of affairs has eluded the current government for many years, at least since 2007.

Getting the state to work for all on the supply of electricity will, in all probability, require a change of government and a more user-friendly approach to the decay on display in Eskom plant, personnel and attitude.

Government seeks scapegoats, not proactiveness

Government itself seems more inclined to seek scapegoats than to address the problems of Eskom proactively. Gwede Mantashe, he of the free security systems at home and dinosaur ideology at work, when interviewed by Judge Dennis Davis, passes the buck to his fellow Cabinet members in public enterprises and police, with scant regard to the collective responsibility of Cabinet and the need to address organisational, logistical and criminal aspects of the meltdown of Eskom holistically.

The courts are the smallest and weakest branch of government. They do not command any army or police service; they do not have battalions of experts waiting to assist them. They can point errant public servants and politicians in the right direction on pain of contempt proceedings, but they cannot do their jobs for them.

Professor Balthazar makes this point in the passage quoted above.

Those contemplating litigation (see “Gatvol citizens threaten Eskom and government with legal action, demand stop to rolling blackouts” in Daily Maverick, 16 January 2023) should take note.

The way to make the state work for the population as a whole is to vote for politicians who serve the public, not the interests of a narrow elite or merely their own selfish ends. South Africa needs politicians who, very properly, see to it that the public administration and state-owned enterprises are effective, efficient, ethical and accountable by appointing suitable candidates to all key positions and supporting them with the appropriate resources both financial and human.

Professor Balthazar’s warning words, eloquent, but brutal, are ignored at the peril of those contemplating litigation. DM