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Courts cannot run South Africa and most certainly cannot fix Eskom

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In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

A central feature of any legal system which adheres to the rule of law is compliance with the principle of certainty. A capricious system in which rules can be changed at the whim of an executive destroys the very fabric of the legal system.

To that extent, the judgment delivered on behalf of a unanimous full bench of the Pretoria High Court by Mr Justice Norman Davis promoted predictability of result.

In summary, the approach to policy decisions taken by the executive followed closely his legal direction encapsulated in his judgment which set aside the declaration of disaster pursuant to the Covid 19 pandemic.

In this recent judgment, Judge Davis ordered the government to ensure an uninterrupted electricity supply to all government hospitals, clinics, schools and police stations. To the order this column shall return presently, but the justification for the order requires initial attention. The take-home point from this case is that few emerge with unqualified credit.

The judgment followed an application brought by the UDM and certain other political and civic organisations to the effect that government, with Eskom, had violated entrenched constitutional rights by implementing load shedding which significantly jeopardised the delivery of hospitals, clinics, schools and police stations; in particular, some 85 police stations, 93 hospitals and 23,000 schools had been significantly affected by load shedding.

In successfully bringing this application, these applicants are now the recipient of the order which has given Minister of Public Enterprises Pravin Gordhan 60 days to ensure uninterrupted electricity supply to these facilities.

The court also noted that where some of these sites could not be isolated from the grid to exempt them from load shedding, the government was obliged to make arrangements for alternative power supply by way of generators.

Constitutional obligations

A second leg of the application, namely to order the stopping of all load shedding, was postponed for a later hearing. Ominously for the government, the court upheld the argument that the constitutional rights of citizens to healthcare, security and education had been infringed by virtue of load shedding, which was the basis by which a remedy had to be granted in order to prevent this unjustified limitation of these rights.

Unquestionably this judgment trenches upon a range of polycentric issues. A key focus of criticism is that the judgment encroaches upon the doctrine of separation of powers by assuming a role best left to the executive. Judges cannot, in short, fix the electricity crisis. To assess the validity of these arguments it is necessary not only to canvass the logic of the judgment, but also the legal response from the government. It is noteworthy that Eskom, which was initially a respondent to these proceedings, escaped the ambit of any court order because the relief sought against Eskom was abandoned and the applicants sought relief solely on the basis of duties imposed by the Constitution upon the government.

Regrettably, some commentators have attacked the judgment for not granting an exemption order to ensure that Eskom provide that all hospitals, schools, police stations and other affected parties be exempt from load shedding. The point is that it is clear from the judgment that the applicants abandoned relief sought against Eskom and proceeded only against the government respondent. This kind of unjustified criticism of judgments contributes, admittedly inadvertently, to the delegitimisation of the judiciary.

That does not mean that other aspects of the criticism should not be carefully evaluated. For starters, a conceptual constitutional problem exists about who carries the legal obligation to provide electricity to hospitals, schools and police stations. In this the court was not assisted by the government counsel case; in particular, the argument that the President and thus his government bore no constitutional obligations of any kind relating to the electricity crisis.

There are manifestly constitutional obligations imposed upon the State. For example, s 7 (2) of the Constitution provides that the State must respect, protect, promote and fulfil the rights and the Bill of Rights. Thus, when Judge Davis referred to s 27 (1)(a) of the Constitution and the right of access to healthcare services, there is a significant problem for government, because of “the dire consequences for a healthcare facility should it not receive an uninterrupted supply of electricity. These consequences include life-threatening impacts on hospital operations, medical instability and patient safety”.

Regrettably, Judge Davis seems to have mistaken the meaning of s 27 (2) in his finding to the effect that it creates an obligation not to interfere with the right to healthcare which is what occurs when load shedding is implemented. What the section actually says is that the State must take reasonable legislative and other measures within its available resources to achieve a progressive realisation to each of these rights. Whether this wording encompasses non-interference with the right is debatable.

But the problem of the nature of the obligation remains both with regard to access to healthcare as enshrined in the Constitution and the right to education in terms of s 29(1) of the Constitution because of the importance of electricity. As Judge Davis notes; ‘the consequences of interrupted (or no) power supply are particularly keenly felt in rural and township schools.’

The effect of load shedding represents a significant obstacle to the vindication of critical constitutional rights and to that extent, the government legal representatives hardly put up a case which would gainsay these conclusions. They also conceded that the Minister of Public Enterprises has oversight responsibility over Eskom as well as the public enterprises listed in Schedule 2 to the Public Finance Management Act 1 of 1999.

Appropriate remedy

Once the court had concluded that there had been breaches of these constitutional rights and that government in general and the Minister of Public Enterprises in particular played so significant a role in the provision of electricity through Eskom, the question of the appropriate remedy became the critical issue for determination. 

The government had produced a roadmap for ensuring increased electrical capacity, much of which is set out in the judgment. It then argued that the granting of any relief would have “a detrimental and cascading effect on the plan and the roadmap (which it had developed)”. Recognising that South Africa is a democracy and not a juristocracy, the court found that in the context of the government roadmap and the application which sought interventions from the court that there was a “marked difference between those policy and planning items both in their nature and magnitude and costs and the limited relief eventually applied for by the applicants”. 

The court held that the emergency relief sought in this interim application fell within the scope of the powers of a court. It fortified this conclusion by saying that “it is clear from the uncertain nature of the contents of the roadmap and the timelines thereof that, even if realised, eventually would not solve the urgent needs of the installations mentioned in the applicants’ application.’ 

Having found key constitutional rights had been trenched upon, there was very little argument produced by government to gainsay this conclusion 

The court was thus correct to examine what proposals the government had developed in order to deal with this problem. It is here however that legitimate criticism of the judgment commences; the question of an appropriate remedy. 

Whether the government roadmap contains sufficient flexibility to provide some relief so as that the list of hospitals schools and police stations, all of which, in the view of the court, are covered by constitutional rights to healthcare, education and security of a person depends on a careful evaluation of that roadmap, the details thereof or any further amendments that could be made thereto in the light of the finding that constitutional rights had been breached.

The court was not in a position on these papers as is evident from this judgment to make a clear assessment of whether the government is able to solve the immediate problem in terms of its available resources and a reasonable timespan. The government contended in a further affidavit that all public hospitals have generators (a contention disputed by the applicants) and that the provision of generators to all public hospitals and schools was the best that the government could do under the circumstances.

Crossing the boundary

To conclude, as the court did, that “these generators are often insufficient, do not merely replace the electricity needed by healthcare facilities to run all the equipment and often, despite the alleged interventions, run out of diesel’ is speculative.

It is here that the findings of the court cross the boundary between courts and the executive as set out in the doctrine of separation of powers. And to this extent, it is correct to argue that courts cannot fix the electricity crisis. Sadly, the excessive burden placed on courts is a luminous reflection of the collapse of executive competence. But courts cannot run the country and most certainly cannot fix Eskom.

So when the supporters of Davis’s judgment contend that government has no right to appeal, they conveniently overlook the vagueness of the justification for relief as contained in the judgment and the speculative grounds on which the remedy was based

The prudent approach would have been to introduce a structural interdict demanding of a government that within a reasonable period (say 30 days) to stipulate precisely how it would ensure the rights affected by load shedding could be safeguarded, at least in significant reasonable part.

That would have given the applicants an opportunity to respond in detail thereto and for the court to have possessed the necessary information to craft an interim order, one that would not have been vulnerable to the accusation that the doctrine of separation of powers has been significantly overlooked in the approach adopted to the remedy so granted. DM 

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Comments - Please in order to comment.

  • Sydney Kaye says:

    The debate may be interesting to students of jurisprudence but in my opinion the court’s remedy brings the courts into disrepute simply because ordering a party to do what can’t be done leads to a court order not being implemented and subsequent ones being ignored.

  • Paul Hjul says:

    Both the judgment and this critique are overlooking the true issue, namely the obstruction of delivering electricity built into badly devised legislation.

    Very recently a court took the easy route of dismissing an application on technical procedural issues because it simply didn’t want to address the fact that Eskom are for purely commercial reasons forcing a town which is able to escape loadshedding to loadshed.

    If the court is satisfied (as it is in this case) that Eskom’s conduct and governments failure infringes on other constitutional rights then the court has little business is remedying Eskom’s conduct but it has every bit of business in declaring that constitutional rights are more important than Eskom’s demands. More importantly it shows that the statutory framework regulating electricity is incompatible with the Constitution and so sections of that legislation must be so declared.

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