Court dismisses government and Eskom’s appeal against load shedding judgment

Eskom has been dealt a blow after the North Gauteng High Court in Pretoria dismissed the parastatal, government and Electricity Minister Dr Kgosientsho Ramakgopa’s leave to appeal against the Load shedding judgment.

The full bench of the court comprising judges Norman Davis, Colleen Collis and Jabulani Stanley Nyathi handed down the judgment on Thursday.

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

The case was brought by various political parties including the United Democratic Movement (UDM), Democratic Alliance (DA), Action SA and civil society organisations.

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 judgment, however, was appealed by the government, President Cyril Ramaphosa, Ramokgopa and Eskom.

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Judgment

In Thursday’s judgment, the court ruled that “in a last ditch attempt” to secure leave to appeal, both Eskom and the government submitted that there were compelling reasons of public interest that justified the granting of leave to appeal.

“Whilst the national energy crisis is of national interest, the ‘humanitarian relief’ granted is to address the rights of a small, albeit vulnerable and important, set of segments of society. The EAP (Energy Action Plan) being the Government’s response to the crisis and everything else that goes with it, which may be of wider public interest, has been left untouched by this court’s order.

“It is further trite that, even in matters of public interest, the prospects of success on appeal or, in this case, the lack thereof, remains a weighty factor. We find that, in the circumstances of this case, there are insufficient “compelling reasons” to warrant the granting of leave to appeal,” the court ruled.

The justices also found no reason to depart from the customary rule that costs should follow.

“We also find that this includes Action SA who, as Advocate Gillian Benson had pointed out, may initially have made common cause with the UDM, but had not withdrawn its participation in the main applications.

“The applications for leave to appeal are refused with costs, such costs to be paid by the applicants for leave to appeal,” the court said.

Eskom reliance on SCA ruling

During proceedings, the justices said Eskom placed substantial reliance on the recent judgment in the Featherbrooke Homeowners Association versus the Mogale City local municipality by the Supreme Court of Appeal (SCA)

They said while selected paragraphs of that judgment were relied on, the judgment does not support Eskom’s argument.

“In the present matter, by his own admission as to his capabilities and authority, the Minister of Electricity is the correct party to perform the relief ordered. There is also no ambiguity as to what has to be performed: the Minister must simply take reasonable measures to ensure that schools, police stations and hospitals and related entities are supplied with sufficient electricity so that they don’t suffer the crippling effects of load shedding.

“That the order was not prescriptive as to how the Minister must achieve this was, as already pointed to avoid encroachment into the sphere of Government. Neither of these aspects infringe on any of Eskom’s rights,” the court said.

Eskom’s argument ‘without foundation’

The court also found that while Eskom argued that the court ‘injudiciously’ exercised its jurisdiction in formulating the relief, which, if implemented, might cause interference with Eskom’s grid responsibility or cause it to breach provisions of its enabling statutory provisions, this argument is without foundation.

“The court ordered no such thing as compelling Eskom to do anything which it may not do. The mandatory relief was against the Minister of Electricity and, should he involve Eskom to assist him, then it must be implied that he cannot compel Eskom to do anything contrary to law,” the court said.

The justices found no reasonable prospect of success that another court would, on appeal, find that “this court could not have granted orders” based on facts conceded by the government, evidencing Constitutional breaches.

Action SA

ActionSA said it was delighted with the judgment.

“This means that the ‘humanitarian relief’ argued for on ActionSA’s behalf by Adv. G. Benson ought to be immediately implemented, ensuring that even after elections, all public schools, hospitals, and South African Police Services should be exempt from load shedding.”

The party said the fact that Ramokgopa, Eskom and government “saw fit to appeal this humanitarian relief for the most vulnerable, indicates that load shedding is indeed not a thing of the past.”

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