There was prima facie evidence that President Cyril Ramaphosa had failed to meet citizens' constitutional right to have access to electricity and he has not met his constitutional obligation to coordinate tools for Eskom to keep the lights on.
This is according to Advocate Tembeka Ngcukaitobi SC, who presented his case before a full Bench of the Pretoria High Court on Monday. He blamed the ANC government’s failure to both maintain the national grid and create new generation capacity, despite knowing since 1998 that Eskom would run out of reserve power by 2007.
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Ngcukaitobi is representing the National Union of Metalworkers of SA, the UDM, the Health and Allied Workers Indaba Trade Union, Build One SA, the SA Federation of Trade Unions and 11 other organisations and individuals who have gone to court to compel government and Eskom to exempt key sectors of the country from load shedding.
In a case that includes other government departments responsible for Eskom, including the department of mineral resources and energy, the department of public enterprises, National Treasury and the entity itself, Ngcukaitobi argued that despite the president’s commitment during his state of the nation address last year to deal with the electricity crisis, government had “folded its arms and done nothing”.
The court heard, however, that this was not an attack on Ramaphosa. Ngcukaitobi argued:
This as the country’s economy has been ravaged by load shedding, with growth this year expected to average less than 1% because of the state-controlled rolling blackouts.
Most hospitals, including the biggest hospital in the country — Chris Hani Baragwanath Academic Hospital — and schools have not been spared from power cuts.
In part A of the court case that seeks to have load shedding ruled unconstitutional, the applicants want hospitals, schools, police stations, water facilities, small businesses and communication networks to be excluded from load shedding.
Ramaphosa has asserted that electricity provision was a competence of local government. In court papers, he said: “If municipalities do not for one reason or another supply electricity to their people, the Constitution does not say that the president must go down to local government and do it.”
But Ngcukaitobi said if 80% of South Africans were reliant on the public health service, the obligation cannot rest with municipalities. He said municipalities should be located within the electricity system value chain. Generation and transmission of electricity lay with national government and Eskom, he said, and municipalities were also consumers of electricity.
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“If there’s no generation capacity, there is no energy to go to municipalities. It is self-serving for government to say go to municipalities when it knows that it’s in violation of its own obligations. It has not ensured that there is enough electricity to go to municipalities,” he explained.
He further said the president had an obligation to make sure that the constitutional right to electricity entrenched in the Bill of Rights was met.
"It imposes [the obligation] squarely on the president by requiring him to ensure that the obligations of the Constitution are fulfilled and, secondly, by telling him that he must coordinate the functions. [This is] so that we do not have a scenario where [Mineral Resources and Energy] Minister [Gwede] Mantashe says to the country Eskom is trying to overthrow the government through load shedding."
Ngcukaitobi argued that these rights were contravened by a single action — the failure to provide electricity.
In the alternative relief, Ngcukaitobi is calling forkey facilities be provided with an alternative source of electricity:
De Ruyter was also not spared. Ngcukaitobi said: “He took his eyes off the ball.”
He’s also been accused of gross dereliction of duty. The case it is set to be heard until Friday.