SA law firm plans class action against Eskom over load shedding

The national load shedding crisis will shortly come under legal scrutiny, if a local law firm has its way.

Law firm De Beer Attorneys has called on businesses who have suffered financial losses to join a class action lawsuit against state owned enterprise Eskom.

The company is convinced that it may have a winnable case.

Eskom did not respond to requests for comment at the time of publication.

Said De Beers Attorneys partner Elaine Bergenthuin told Fin24 on Tuesday, "Eskom is a large parastatal organisation but it is still subject to the laws of the country. There have been numerous instances where the private entities have been successful in pursuing litigation against Eskom in the past.

"It very much depends upon the basis upon which the claim is formulated and what is ultimately being sought by the claimant."

Eskom rights

Former public protector Thuli Madonsela ruled in 2016 that Eskom was within its rights to disconnect households from the grid, but also found that the utility should do so fairly and in line with the principle of "Batho Pele".

"We are busy reviewing the Public Protector's findings in this regard. We will need to look at the context within which the report was generated," said Bergenthuin.

"For example, did it take the consequences of load shedding into consideration? Does it imply that South Africa has to accept load shedding as the new 'status quo'? We need to look into these aspects further."

In January 2017, Fin24 reported that the North Gauteng High Court ruled that Eskom was not constitutionally obliged to provide electricity to ratepayers in an urgent case brought by lobby group AfriForum.

In that case, Judge Hans Fabricius said that municipalities were obliged to provide electricity, but Eskom had a duty to consider the economic consequences of a lack of service.

Peter Attard Montalto, head of capital markets research at Intellidex told Fin24 previously that SA likely lost R1bn per day as a result of load shedding.

Bergenthuin said that they were weighing the various options.

"We are currently exploring the options available to us from a legal perspective. In particular, we are looking at Eskom's constitutional obligations as regards the provision of electricity and the possible basis upon which we will be pursuing action."

Load shedding

While various allegations of state capture at Eskom has emerged at the Zondo Commission of Inquiry, Bergenthuin argued that a separate lawsuit would not necessarily constitute a parallel process.

"It seems as though the commission has been set up to investigate allegations of state capture and not to look into 'load shedding' per se. As such, it should strictly speaking not close the door to further civil litigation being pursued against Eskom."

After implementing days of Stage 4 load shedding last month, Eskom announced on Sunday, March 24, that the electrical supply system was stable and terminated load shedding. At the time, it said Cyclone Idai in Mozambique had impacted on power supply.

Load shedding has previously been attributed to ageing power plants and insufficient maintenance, among other things. 

Eskom is expected to announce the state of the country's power supply at a briefing tomorrow. 

To join the class action, you can contact the law firm directly.

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