Outa launches legal action to block electricity state of disaster

The Organisation Undoing Tax Abuse (Outa) filed an urgent application requesting the overturning of the national state of disaster over load-shedding in the Pretoria High Court on Thursday, 16 February 2023.

The civil action organisation believes the declaration of a state of disaster over electricity supply constraints is “irrational, arbitrary, and unlawful”.

Outa says the electricity crisis directly results from government actions and has been more than 15 years in the making.

It added that a state of disaster isn’t needed as there are already existing laws that enable urgent action to address the crisis.

Outa executive director Stefanie Fick says the ANC’s mismanagement doesn’t justify declaring a state of disaster.

“Years of state capture, mismanagement, and a dysfunctional culture cannot be a rational justification for the declaration of a national state of disaster,” Fick says.

“If the decision to declare a national state of disaster due to this self-created crisis by the government is allowed to stand, it will open the floodgates for further such disasters to be declared in various other sectors that suffered from similar dysfunction, mismanagement, and corruption.”

This is because a state of disaster grants officials extraordinary power to make decisions without parliamentary oversight.

“Declaring a national state of disaster will in effect become a tool for the government to circumvent accountability and hide behind the excuse of a disaster to reach an apparent ‘quick-fix’ for problems that were years in the making,” Fick adds.

“We are bringing this application because Outa will not stand by when government grants itself extraordinary powers with reduced oversight to deal with a self-created energy crisis.”

Outa named the following parties as respondents in its application:

1. The President;
2. The head of the National Disaster Management Centre;
3. The Minister for Cooperative Governance and Traditional Affairs;
4. The Minister of Mineral Resources and Energy;
5. The Minister of Public Enterprises;
6. The Speaker of the National Assembly;
7. The Chairperson of the National Council of Provinces; and,
8. Eskom Holdings.

However, the civil action organisation noted that The Speaker of the National Assembly, Chairperson of the National Council of Provinces, and Eskom Holdings are only cited as interested parties.

“No relief is sought against them unless they oppose the application,” it reads.

The application is split into two parts, with the first asking the court to prevent the first five respondents from taking further action regarding the disaster decisions.

The second part asks the court to review the decisions and set aside the classification of the electricity crisis as a disaster. It also asks that the court sets aside the declaration of the state of disaster.

The application is supported by a founding affidavit by Outa’s Fick, which highlights that South Africa was warned of future energy constraints as early as 1998 but did nothing about it.

In the affidavit, Fick also points out that it could lead to a new wave of corruption, similar to what South Africa was subjected to during the Covid-19 national state of disaster.

She lists several reasons why the state of disaster is unnecessary:

• There is existing legislation to deal with the crisis effectively
• There are several plans already in existence, including the President’s Energy Action Plan and the Integrated Resource Plan, to address the energy constraints
• A state of disaster cannot be declared on pure speculation of a blackout
• It does not appear as though the government consulted with Eskom regarding the need for a state of disaster
• Outa believes the Minister of Mineral Resources and Energy will use the state of disaster to justify an emergency contract with Karpowership

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