Government’s ‘uncertain’ energy crisis plan called out by High Court

The court on Friday 5 May ordered Minister of Public Enterprises Pravin Gordhan, whether in conjunction with other organs of state or not, to ensure uninterrupted power supply to:

• All “public health establishments” as defined in the Public Health Act, including public hospitals and clinics;
• Public schools as defined in the South African Schools Act; and
• The South African Police Service and police stations as defined in the South African Police Service Act.

This must be done within 60 days, irrespective of whether these institutions get their power supply from Eskom or a municipal distributor.

Read: Ramaphosa sends army to protect Eskom stations

Generators not the solution

The order is widely crafted to give Gordhan enough scope to employ appropriate solutions, but at the same time the court made it clear that it is not enough to just ensure the availability of a generator at each premises.

It states: “The affidavits [before court] made it clear that to claim that hospitals have generators and that there are technicians looking after these generators, is simply not good enough. These generators are often insufficient, do not nearly replace the electricity needed by healthcare facilities to run all their equipment and often, despite the alleged interventions, run out of diesel.

“The evidence is further that hospitals have to buy their own diesel, depleting their budgets and utilising funds for diesel, which funds have been earmarked for other essential expenses needed to run hospitals, such as salaries and medicines. This, to our minds, also indicated that the applicants have demonstrated that there are no effective alternatives for the beleaguered health facilities.”

The court went further, stating: “The police stations and schools are even worse-off; they simply close or shut down during load shedding.”

Constitutional rights at play

Budgets must be reprioritised to address load shedding’s infringement on constitutional rights, the court ruled.

The court rejected President Cyril Ramaphosa’s contention in court papers that the applicants, which include political parties like the United Democratic Movement (UDM), Inkatha Freedom Party (IFP) and Action SA, could have raised the matter in parliament, rather than in court, as “inappropriate”.

It pointed out that the matter was, in fact, raised in a parliamentary question, but nothing changed.

In its opposition to the application the government presented its energy plan and the roadmap to its execution.

The state’s plan is based on five interventions:

1. Fix Eskom, improve the availability of existing plant and add generation capacity;
2. Enable and accelerate private investment in generation capacity;
3. Accelerate procurement of new capacity from renewables, gas and battery storage;
4. Unleash business and households to invest in rooftop solar; and
5. Fundamentally reform the electricity sector to achieve long-term energy security.

The roadmap provided more detail as well as timelines for 2023, 2024 and 2025.

The gap between uncertain plans and reality

The court concluded that the government’s energy plan and roadmap to execution depend on multiple factors, including market response.

“It was also only an illustrative timeline of when additional power could be expected and was subject to revision,” the court ruled.

It concluded: “It is further clear from the uncertain nature of the contents of the roadmap, and the timelines thereof, that, even if realised, it would not solve the urgent needs of the installations mentioned in the applicants’ application.”

The court intervened, stating that it was necessary to fill the vacuum between the state’s uncertain plans and the reality of what load shedding does to institutions.

Stark reality

MC Botha, managing director of MC Botha Incorporated, which has litigated successfully in several landmark cases relating to electricity supply, says the ruling shows that government’s plans have little substance and lack detail.

“For example, the scrapping of the licensing requirement for generation plants bigger than 100MW that was announced a long time ago, has not yet been gazetted and is therefore without legal effect,” he says.

In addition: “The 60 days given by the courts may not be enough for government to run procurement and other processes to comply with the order.”

“They will have to come back to court after 60 days and show that they have taken reasonable steps to comply,” says Botha.

He believes it is likely the state may appeal the final ruling as it may consider compliance unattractive.

Eskom announced on Sunday afternoon that Stage 6 load shedding will be implemented until further notice as unplanned breakdowns increased to 19 333MW of generating capacity, with 4 524MW out of service due to planned maintenance.

This means electricity users countrywide will lose power supply for a total of 10 hours per day.

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