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In times of government failure, the danger of judicial overreach is ever present


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.

Two judgments over the past few days have raised an important question: What are the boundaries beyond which the judiciary should not venture in order to involve itself with matters of complex polycentric disputes of an economic, social and ultimately distributional nature.

Let us begin with the judgment of UDM and others v Eskom and others delivered on 1 December 2023. In an earlier order, on 5 May 2023, the same court issued an interim order in terms of which the minister of public enterprises was required to take all reasonable steps within 60 days of that order to ensure that there would be a sufficient supply of electricity to prevent any interruption of supply as a result of load shedding in respect of a series of public institutions, including all public health establishments, public schools and police stations. 

The UDM had launched a further application based on s 7 (2) of the Constitution, which triggered the second part of this case. In essence, a failure by Eskom and other organs of state to provide a reliable electricity service had violated the rights of the applicants as well as the South African public in general; that is the right to equality, dignity, life, healthcare and to have sufficient food and water, the rights of children and the right to education. 

Read more in Daily Maverick: Courts cannot run South Africa and most certainly cannot fix Eskom

The UDM sought an order by which Eskom would be required to report to the court as to what steps it would take to ensure an uninterrupted and reliable supply of electricity to eligible users and what steps it was going to take both in the short and long term to end load shedding within a reasonable time. For reasons that do not need to detain this column, the UDM withdrew its application for this relief.

The DA, perhaps the most experienced political litigators in the contemporary era, persisted with their application to declare the implementation of load shedding inconsistent with the Constitution. In order to set aside decisions to implement load shedding, it argued that load shedding had unjustifiably limited a range of rights, including the right to human dignity, the right to life, freedom and security of the person, an environment is not harmful to health and well-being as well as the right to access to healthcare, sufficient food and water and the right to basic education. 

The DA proposed the appointment of a Special Master who would be tasked with ensuring the implementation of the Energy Action Plan announced by the government on 21 July 2022 as well as the implementation of any relevant recommendations made by the Zondo Commission in relation to Eskom. Central to the DA’s argument was the failure of the state to ensure the viability of Eskom and authorise additional energy generation. 

To the extent that it is possible to divine a coherent argument presented by the state, it was that steps had been taken to address the load shedding crisis and that either the appointment of a Special Master or other interventions by the court should not be granted in deference to the steps that had been taken by the executive arm of the state to address a difficult problem which was best left to the expertise of the executive. 

To evaluate this argument, Judge Norman Davis, on behalf of the unanimous court, referred to a memorandum which had been distributed to the Cabinet in which it was stated that “the current state of load shedding poses both a socioeconomic and security risk to the sovereign and requires an appropriate and urgent response from Government”.

Read more in Daily Maverick: Court-declared government culpability in SA’s power failure could be opposition’s great asset in 2024 poll

The report also noted that the dire consequences of load shedding were “threatening the underlying social fabric of South Africa as a nation, hampering State capacity to deliver services and arguably raising National Security concerns against the milieu of a continued threatened economic environment increasing inequality, further marginalising vulnerable communities”.

Within the context of this dire scenario, Judge Davis was not particularly impressed by the “blame game”; that is, members of the executive, Eskom and Nersa all blamed each other for the dire consequences being experienced in the country. 

In summary, the evidence of state failure was lamentable. 

In seeking to provide a remedy to the crisis caused by load shedding, Judge Davis warned: “We do find, however, that going beyond the immediate ‘humanitarian relief’ crossed the boundary of separation of powers.”

To what extent can a minister squeeze out more electricity from the decrepit system which exists at present?

However, in the view of the court, the secret Cabinet report and its annexure represented a concession that there were significant infringements of the rights protected in the Bill of Rights. While the minister of electricity did refer in his affidavit to the problem of load shedding in hospitals, he was “significantly silent on any interventions relating to schools and police stations”. 

In particular, evidence was placed before the court that particularly pupils from poor and previously disadvantaged communities remain hugely prejudiced because in many of their schools there were no generators or any back-up systems to provide electricity so that schooling could continue in a meaningful fashion. The same was true of the closure of police stations as a result of the fact that many did not have generator back-up systems or solar power batteries, as a result of which, notwithstanding the increasing crime wave in South Africa, they were forced to close.

The court further stated again that it was “mindful of the arguments relating to separation of powers and that a court should not trample on that dividing line nor unduly infringe in another sphere of government. An order which implicates the National Economy and Budgets of the State in order to remedy breaches of constitutional rights should be exercised sparingly.”

What then was the basis by which the court was prepared to grant an order in this case? The basic reason was that there was nothing in respect of this application that had reacted adversely to the relief previously granted in the interim order in the UDM’s application, in particular that parties would cripple the state or its budgets or derail the implementation of its action plan. 

Read more in Daily Maverick: Eskom news

The answer to this should have been clear. The relief that was granted under the interim order had no return date. There was no need for any of the parties to provide affidavit evidence as to the impracticability of the continuing effect of that interim order. It simply was not before the court; unsurprisingly no evidence to gainsay its effect has been produced. In addition, the UDM, which had successfully obtained this order, had fallen out of this present litigation. 

The DA, which obsessively pursued the idea of a Special Master, had not sought the relief which the court decided to grant. As a further justification of this order it was said it was binding on the executive and thus it was envisaged that the executive in general and minister of electricity in particular would take steps to ensure that the constitutional breaches contained in the declaratory order would not continue. This is hardly a justification: It is merely a conclusion. 

Now to the order. 

Leave aside the declaratory components of the order stating that there have been significant breaches of constitutional rights pursuant to load shedding. Amen to that! The relevant part of the order is that the minister of electricity is ordered to take all reasonable steps by no later than 31 January 2024, whether in conjunction with Eskom or other organs of state, to ensure that there shall be a sufficient supply or generation of electricity to prevent any interruption or supply as a result of load shedding to a series of institutions including public health, the establishment of schools and police stations. 

The question that must be posed is: What are reasonable steps in these circumstances? To what extent can a minister squeeze out more electricity from the decrepit system which exists at present? In short, to what extent, if no load shedding can be implemented in regard to schools, health establishments and police stations, is this going to affect other significant elements of the economy? How will this be policed by a court? The answer simply is that the order is so exquisitely vague that it is almost impossible to realistically police it. 

Public Service Association v SARS and others

Following the judgment the high court delivered a judgment in Public Service Association v South African Revenue Services and others which held that SARS was bound to the entirety of a wage agreement; in particular the final level of the multiyear wage agreement which had been entered into by the trade union with SARS. What followed, if the wage agreement was held to be valid and binding on SARS, was an order that its failure to implement the salary increases provided for in the agreement was in breach of contracts of employment with the union’s members employed by SARS. 

Courts need to be extremely careful that they can predict the consequences of the orders they grant.

In the light of the Constitutional Court decision in National Education, Health and Allied Workers Union v Minister of Public Services and Administration of 2022, the smart money would have been on the court refusing to order the implementation of the third year of the agreement. Article 216 of the Constitution, read together with Regulation 79 of the Public Service Regulations, required that the entire expenditure, in this case in terms of the wage agreement, had to be based on an approved budget and that there were funds available to meet the entire commitment. 

By applying the wrong section of the Constitution – s 217 (which deals with procurement) as opposed to the applicable s 216 – the high court elided over this binding precedent. It also dismissed the argument that it was impossible for SARS to comply with this part of the agreement because of austerity measures. It simply did not have the money to pay out the additional sums required. The court acknowledged that the papers indicated that SARS may be operating under some financial constraints. In these circumstances, it said, paying the increase as provided in the wage agreement may require the reallocation of funds which might have been earmarked for other purposes.

Like the UDM judgment, this poses the same difficulty. On what basis has the court come to a conclusion that SARS would have the necessary money, dependent as it is on Treasury for further funds? On its own it is thus unable to meet these obligations. Furthermore, to make some bland statement that the money can be found elsewhere raises profound questions as to what effect this has on SARS’ core capacity to collect revenue in the first place.

Both judgments are commendable in that the judges have sought to hold public power to the Constitution in particular and the rule of law in general. It may seem too churlish to criticise. But the danger of judicial overreach is ever present. It has always been likely that the failure of politics in South Africa, the ineptitude of the state, the level of corruption which runs like a cancer through the entire system of public governance, would result in greater recourse to courts. In circumstances where rights are clearly breached, courts should come to the aid of litigants. But courts need to be extremely careful that they can predict the consequences of the orders they grant. That is why in the first place the doctrine of separation of powers would caution against the issuing of an order when, on the face of it, it may not seem to be possible to implement by parties to whom the order is directed. DM


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  • Con Tester says:

    The broader operational principle here is that when two of three arms of the state are broken and useless, then the third arm must step up and take charge, or at least keep things on track. This separation of powers into three camps is a foundational principle of modern constitutional democracy, and the purpose thereof is at bottom to address Juvenal’s conundrum—“quis custodiet ipsos custodes”—by having each camp watch the other two.

    To bring home the point, in SA both the executive and the legislative are at the very least sorely compromised, for the most part filling their roles as rubber-stampers for the diktats issued by Luthuli House, and so it is left to the judiciary to act as final guardian of, and arbiter for, the public at large. Those fatuous accusations of “judicial overreach” that emanate from various quarters are therefore a symptom of those quarters’ own dysfunction—i.e., the other two arms of the state. Judicial overreach would be largely obviated if only the other two arms deigned to start doing their f*****g jobs properly.

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