Load shedding case: Eskom’s evidence not properly taken into account, court told

Eskom says its arguments on why it cannot exempt key facilities from load shedding were not taken into consideration and believes another court may reach a different conclusion.

Last December, the Gauteng High Court in Pretoria found that load shedding constituted a violation of constitutional rights.

The court ordered that public health facilities, schools and police stations be exempted from the rolling power blackouts or be provided with generators “no later than 31 January, 2024”.

The ruling, however, was appealed by the government, including President Cyril Ramaphosa, Electricity Minister Kgosientsho Ramokgopa and Eskom.

The leave to appeal application was heard in court on Wednesday.

‘Eskom’s evidence ignored’

During proceedings, Eskom’s legal representative, Advocate Max du Plessis, argued that his client believed that the Supreme Court of Appeal (SCA) could rule otherwise in the litigation.

“Another court may well find, therefore, that the [high] court got the evidence wrong or it failed to properly take into account Eskom’s evidence and that it impermissibly may an order against Eskom. The court sitting in the SCA may well say not only did it not take account of the evidence properly, but it did so through the wrong test,” he said.

Du Plessis told the court that the exemption could lead to a grid collapse, thus derailing government’s energy action plan to resolve load shedding.

“Eskom’s evidence was emphatic. It was explained that the interim relief sought by the UDM [United Democratic Movement] would effectively require Eskom’s management to abandon its generation recovery plan to address load shedding for the entire country.

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“It would require an abandonment in favour of a narrow selection of entities. Another court may well agree with Eskom that that would have hamstrung Eskom’s ability to govern load shedding and the difficulty of load shedding,” the advocate continued.

Advocate Marumo Moerane, representing the president and government, further argued that the Democratic Alliance (DA) failed to provide evidence to show that the state could have taken adequate steps to protect Eskom from criminal activity, corruption and state capture.

Morane said the high court’s ruling was a “sweeping order whose language has far-reaching consequences”.

“Consequently, the court erred is placing reliance on events that were not pleaded by the DA and placing reliance on a description provided by the state about contributing factors to the current electricity crisis,” he added.

Judgment in the appeal was reserved by the court.

Government unwilling to exempt hospitals

ActionSA member Mpho Madisha said the arguments presented by Eskom and the government were “very concerning”.

“[It showed] that there is no sense of prioritisation of what is key in our community,” he said.

Mashida claimed that government was unwilling to exempt the institutions from load shedding rather than being incapable of doing so.

“If it is [the question of] incapability, the state has to go a long way of demonstrating that it cannot at all make provision for power not to be interrupted in these very key institutions. But it seems like it is a case of unwillingness.”

He added that he believed ActionSA’s legal team presented a strong case.

In May 2023, the Gauteng High Court in Pretoria ordered Public Enterprises Minister Pravin Gordhan to “take all reasonable steps within 60 days” to make sure there was sufficient electricity supply to the public institutions.

This was appealed by government a month later, but has since fallen away.

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