Eskom faces big court battles over load-shedding
Several organisations in South Africa are threatening to take Eskom to court over the impact of frequent load-shedding and the utility’s failure to provide a comprehensive plan to address the rotational power cuts.
That is according to a report from the Sunday newspaper Rapport.
Prominent parties considering legal action against the utility include the Solidarity Movement and one of the country’s most prolific legal minds, advocate Tembeka Ngcukaitobi.
The latter is amassing support for a concerted legal challenge to be led by former President Jacob Zuma’s ex-legal representative, Eric Mabuza, with four instructive lawyers and three junior advocates already willing to offer their assistance.
The substantive legal team has already received backing from the UDM’s Bantu Holomisa, former DA leader Mmusi Maimaine, and several non-profit organisations in Gauteng, Limpopo, and the Eastern Cape.
They aim to force Eskom to provide a concrete plan for fixing load-shedding and addressing the energy crisis.
Ngcukaitobi told Rapport that the utility had a constitutional duty to provide reliable electricity to the country and claimed South Africans were being kept in the dark about the real reasons for the power cuts.
He also said how Eskom decided what load-shedding stage to implement was arbitrary and that the short notice at which the power cuts often took effect was unacceptable.
Ngcukaitobi’s team is planning to file papers this week.
Solidarity’s Dirk Hermann told Rapport the organisation was also working on two possible load-shedding-related court cases.
Firstly, it wants Eskom, the National Energy Regulator of South Africa (Nersa), and the government to provide concrete details on plans to bring load-shedding to an end.
Of particular concern was why private businesses and individuals were ostensibly struggling to get their power projects approved by Nersa, despite President Cyril Ramaphosa’s government lifting private power generation limits.
Dirk Hermann, Solidarity CEO
Solidarity’s second case relates to getting Eskom exemption from Black Economic Empowerment procurement rules that Solidarity contends costs Eskom R12–R14 billion each year.
It argues that the utility would not have to ask for tariff hikes if it did not have to abide by these regulations, which essentially cause the power utility to procure through middlemen rather than from suppliers directly.
Business interest group Sakeliga has also launched a court application in collaboration with Agri North-West, TLU SA, and several businesses over targeted load reduction on various feeder lines across South Africa.
The parties maintain that although load reduction was allowed under the Electricity Regulation Act, it may never include the complete cessation of electricity supply but only an appropriate reduction in load size.
In addition, load reduction may not be used as a debt collection mechanism or to curtail illegal connections.
But Sakeliga says it has seen correspondence that Eskom uses load reduction on targeted feeder lines for these purposes.
“In the process, several paying end-users’ electricity supply is often terminated for hours on end,” said Sakeliga.
“It is unacceptable that paying end-users’ businesses and livelihoods must bear the brunt of negligence and deterioration at Eskom.”
Sakeliga said its court case aimed to provide interim relief to businesses and households.
It is also continuing with a larger legal battle to remove obstructions to alternative electricity in South Africa.
Eskom unfazed about load-shedding legality
Eskom previously faced several legal challenges claiming damages caused by load-shedding between 2008 and 2015.
But most of these cases were unsuccessful, with the courts reluctant to hold the utility liable.
In 2019, Eskom shrugged off reports of a planned class-action lawsuit against load-shedding, which legal firm De Beer Attorneys had planned to launch on behalf of businesses and individuals.
The utility explained it was legally entitled to interrupt local power supply to prevent a national blackout.
“Eskom’s supply agreement with either the municipality or with an individual customer makes provision that Eskom does not guarantee uninterrupted supply of electricity,” Eskom said.
“Load-shedding is done countrywide as a controlled measure when the national grid is constrained to protect the power system from a total collapse.”
Eskom said although the country’s various infrastructure systems were generally able to deal with interruptions in electricity from time to time, their interdependence and vulnerability to a national blackout was significant.
The utility added the financial implications of a national blackout would far outweigh the economic cost of manual load-shedding.
In addition, the Electricity Regulations Act specified that a financial impact on a customer was insufficient to justify exclusion from emergency power cuts.
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