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Does the declaration of a state of disaster for the energy crisis meet the requirements or is it open to a court challenge because there is already sufficient legislation to deal with it?
President Cyril Ramaphosa announced during his State of the Nation Address (SONA) last week that South Africa’s energy crisis “and its impact” had been declared a State of Disaster in terms of the Disaster Management Act (DMA).
The declaration was published by the Minister of Co-operative Governance and Traditional Affairs in the Government Gazette, but there is growing scepticism about government’s ability to tackle the energy crisis in the wake of a record-breaking streak of rolling blackouts, says Mzukisi Kota, partner, Lubumba Kamukwamba, senior associate, and Lize-Mari Doubell, candidate attorney at law firm Webber Wentzel.
They point out that this extreme legislative measure is concerning because it excludes parliamentary supervision over law-making, while there is doubt whether this is the appropriate solution to a 15-year-long “crisis”.
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The main problem people have with this step is that it creates the potential for fraud and corruption similar to the emergency procurement of personal protective equipment during the height of the Covid-19 pandemic, when South Africa also operated under a state of disaster.
Consequently, political parties and trade unions, such as the Democratic Alliance and Solidarity, have already announced that they intend to challenge the declaration in court. Kota says there are potential legal hurdles the declaration and its regulations which have not been published yet, would have to overcome to survive judicial scrutiny.
Therefore, it is important to consider the legal requirements, potential pitfalls, the applicable legislation and the potential risk of a legal challenge.
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The DMA defines disaster as a progressive or sudden, widespread or localised, natural or human-caused occurrence which causes or threatens to cause death, injury or disease, damage to property, infrastructure or the environment or significant disruption of the life of a community.
It is also of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources. Kota points out that Section 27(1) of the DMA provides that a national disaster can only be declared if existing legislation and contingency arrangements do not adequately provide for the national executive to effectively deal with the disaster or if other special circumstances warrant the declaration of a national state of disaster.
In addition, Section 27(2) sets out the extraordinary powers government can exercise, including the release of government resources to address the crisis, emergency procurement and the implementation of a National Disaster Management Plan.
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Kamukwamba says while it seems that the definition of a disaster would be satisfied by the energy crisis, it is highly debatable whether the requirements for the declaration of a national disaster have been met.
The president justified the declaration on the basis that it would enable an effective response co-ordinated from the centre of government and revealed plans to support businesses in the food production, storage and retail supply chains through the roll-out of generators and solar panels.
In addition, government plans to exempt critical infrastructure, such as hospitals and water treatment plants, from loadshedding, accelerate energy projects and limit regulatory requirements, while maintaining rigorous environmental protections, procurement principles and technical standards.
The Auditor General will monitor spending to guard against abuse of funds. However, Kamukwamba says, the immediate concern then is why implementation requires the declaration of a national state of disaster.
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Section 34 of the Electricity Regulation Act (ERA) already empowers the Minister of Mineral Resources and Energy to procure new generation capacity to ensure the uninterrupted supply of electricity.
“In our view, the ERA already contains special legislative mechanisms designed to ensure the uninterrupted supply of electricity and these could be deployed to address aspects of the energy crisis,” Kota says.
The Public Finance Management Act (PFMA) and the instruction notes issued in terms of Section 76, also contain special mechanisms for crises, Kamukwamba says. National Treasury’s Instruction 3 of 2021/22 also provides for a deviation from ordinary competitive tender procedures in an emergency situation or urgent case.
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As the president’s plans are achievable under existing legislation which has adequate mechanisms to enable extraordinary and swift action, the only aspect not clearly envisaged is that the co-ordination could arguably also be facilitated through mechanisms such as those set out in the Infrastructure Development Act.
Kamukwamba says the declaration and installation of a new minister of electricity appears to be little more than an attempt to side-step addressing the root causes of the energy crisis and the failure to implement the existing regulatory framework and policies to eradicate load shedding, infrastructural challenges and rampant vandalism and looting at power plants.
“The biggest elephant in the room, as always, remains what is happening on the transmission infrastructure required to unlock various projects which have been orphaned from the REIPP programme due to their inability to connect to the national grid. This issue will not be resolved by the declaration of a national state of disaster.”
Keto says it seems the touted legal challenges against the declaration may well proceed on the basis that it does not meet the requirements of Section 27(1) of the DMA because it was declared despite the legislation and contingency arrangements to adequately address the crisis, while there is also a marked absence of other special circumstances to warrant the declaration.
Depending on their content, Kamukwamba says, any regulations and directions still to be published under the declaration may be reviewed and set aside in terms of the Promotion of Administrative Justice Act or the principle of legality.
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