There is talk of appealing the decision of the full bench of the North Gauteng high court which requires government to organise an uninterrupted supply of electricity to schools, police stations and government medical facilities such as hospitals and clinics.
Underlying the judgment is the obligation in the Bill of Rights that “the state must respect, protect, promote and fulfil” all of the rights guaranteed to all in it.
While some rights are hedged about with qualifications that contemplate their progressive realisation within the “available resources of the state”, no one may be refused emergency medical treatment. Access to other healthcare services is notionally limited by the phrase that the state “must take reasonable measures to achieve each of these rights (being healthcare, food, water and social security) within its available resources, to achieve the progressive realisation of each of these rights”.
The rights to basic education, for child and adult alike, and to safety and security are not hedged about with the type of qualifications that apply to the Section 27 rights mentioned above. They are claimable in full under sections 12 and 29 and have been since the Constitution came into force.
The applicants in the case have used the law to persuade the court to exact accountability from the state by performing the obligations it has assumed under the Constitution.
Who has the power?
The specious argument that the state does not have the resources required available to it requires some interrogation. There are dire warnings from officialdom that the electricity supply grid will collapse if the lights are kept on in schools, hospitals and police stations.
The court order does not prescribe that Eskom needs to be the supplier of the electricity. It is possible to fashion off-grid solutions by installing solar or wind or even gas power supplies in the institutions affected by the order of court. Schools are not major consumers of electricity and have ample roofing on which to install solar panels.
The ovens used in home economics classes can be exchanged for gas-fired ovens. Small police stations in rural areas need no more than a generator and a supply of diesel to keep their lights on; the same applies to clinics and hospitals. None of these institutions are major consumers of electricity supplied by Eskom. Alternatives are readily available. In the long term, taking schools solar will result in a saving for the state.
At a more fundamental level, it is baseless to argue that resources are not available at a time when politicians and our bloated public service are being awarded increases in their emoluments. If the public service were given a good “haircut” the trimmed-down payroll would become much more manageable and the resources so freed up could be used to keep the lights on as ordered by the court.
For politicians and public servants to live high on the hog while the poor who need schools, medical attention and the protection of the police 24/7 are left defenceless and without the necessary services is palpably unconstitutional.
Then there is the matter of the loot of State Capture. It is estimated to be more than a trillion rand, an amount which far exceeds what is required to comply with the court order. It does not behove government to wail that the loot of State Capture is not available to it.
Rake back the loot
If it were to take reasonable steps to rake back loot, the proceeds of the exercise could be put to good use in fixing Eskom, increasing its capacity and restoring normality to its service. Recovered loot could also be applied first to giving effect to the order of the court, whether by installing solar power or otherwise.
The problem, which is not the court’s problem, is that the loot of State Capture has been squirrelled away by those in or near to the ANC. The latter is described as “accused number one” in State Capture by the president himself.
It is no excuse to argue in the intended appeal that no resources are available because the loot of State Capture has been taken offshore. Certainly not when no efforts have been put in place to recover the loot wherever it may be.
While there may be a lack of political will to rake back loot, it is an eminently doable exercise, as has been explained in detail to Minister Pravin Gordhan’s department and to Treasury by Accountability Now and doubtless by others concerned about the state of affairs in the finances of the country and its grey-listed status.
‘Accused number one’
Around the world, and in South Africa, there are many organisations that specialise in international asset recovery work. They use investigators and lawyers who know their way around the jurisdictions favoured by looters as the destinations for their loot. It is seldom that serious state capturers do not take the loot of State Capture offshore.
The evidence given by Paul Holden at the State Capture Commission sketched the flow of funds out of South Africa into far-flung jurisdictions in which it has been invested. London, Hong Kong, Zurich, the British Virgin Islands and that hub of iniquity, the UAE, are all mentioned in his evidence.
These days the automated banking system is fully capable of tracing the movement of stolen funds no matter how many times loot is transferred. Where it is used to buy assets, those assets are susceptible to seizure and forfeiture at the instance of the looted organisations.
It is because the ANC is “accused number one” that no effort has been made to instruct asset recovery experts worldwide to rake back the loot of State Capture. To do so would be to inconvenience powerful people who are the office bearers of the ANC and their friends in business and in State Capture.
This politically unpalatable fact is no excuse when it comes to complying with the court order handed down against government.
Arguments based upon the “polycentricity of decision making” will not impress any appeal court hearing the matter. For government to argue that South Africa is in a financial hole because it allowed State Capture to happen won’t wash. Disbanding the Scorpions, disabling the NPA and setting up the Hawks to do so little to counter serious corruption involving the wholesale looting (to which our state and our state-owned enterprises have been and still are being subjected) are not factors that weigh in favour of granting the appeal.
Similar arguments were raised when rail commuters asked to have their safety and security taken seriously by the rail and police authorities. The arguments were given short shrift because the state “must respect, protect, promote and fulfil” our human rights.
Instead of spending public money on working up an appeal, Minister Gordhan should be joining the dots between State Capture and the alleged lack of available resources within the coffers of Treasury. The solution is not to plead poverty, it is to take available steps to “rake back loot”. These are three four-letter words that should be engraved on every desk in Treasury, the Department of Public Enterprises and in looted state-owned entities.
Adequately tackling corruption
The longer-term solution to dealing with the greylisting of South Africa, the inability of Eskom to supply power because it is being looted to this day, and to ongoing serious corruption in general is to reform the capacity of the state to deal with the corrupt. This is best done by properly implementing the decision of the Constitutional Court handed down in the case called “Glenister 2” on 17 March 2011.
In that case, the majority of the court ruled, in terms which bind government, that an entity that is specialised, populated with well-trained experts, independent of the executive’s control, influence and interference, fully resourced and secure in tenure of office is what is required to give effect to the state’s human rights obligations and its international treaty obligations to establish an effective and efficient entity to counter corruption.
No such entity exists. The ANC NEC did instruct Cabinet to create one in 2020, but Cabinet has ignored its instruction.
In 2021 Accountability Now suggested draft enabling legislation and a constitutional amendment to give full effect to the judgment in Glenister 2 and to the NEC resolution. Parliament heard submissions on the topic in March 2023 but, thus far, the Cabinet remains as unresponsive to Accountability Now as it was to the NEC.
Raking back the loot of State Capture with the help of local and international experts who specialise in doing the work required will enable the state to keep the lights on, not only in schools, hospitals and police stations, but everywhere. The political will to give the appropriate instructions is lacking.
Voters should take note and should insist that any party for which they vote is committed to reforming the criminal justice system so as to enable it to counter corruption and rake back the vast loot of State Capture. DM