Supplying electricity Ramaphosa’s constitutional duty, not municipalities’, court told

The constitutional and legal obligation for the provision of electricity in South Africa lies with the national government and not municipalities, as argued by President Cyril Ramaphosa.

Load shedding legal challenge

That’s according to Advocate Tembeka Ngcukaitobi, who is representing the United Democratic Movement (UDM) and 18 other litigants in their application for an interdict compelling government to exempt essential services like public health institutions and schools, among others, from load shedding.

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The matter is being heard by the full bench of the North Gauteng High Court in Pretoria from Monday until Friday.

The legal obligation for the supply of electricity came into sharp focus on the first day of the unprecedented legal case after Ramaphosa argued in court papers that municipalities “are in law required to provide water and electricity to their people as a matter of public duty”.

The president said in his answering affidavit that the legal challenge against load shedding was misdirected because Part B of Schedule 4 to the Constitution placed the duty for electricity and gas reticulation on local government.

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“It is now accepted that municipalities are in law required to provide water and electricity to their people as a matter of public duty. This duty does not lie with the president or any of the national departments cited herein as respondents,” said Ramaphosa.

Municipalities are customers of Eskom

Advocate Ngcukaitobi disagreed with the president’s argument on the matter.

He said Ramaphosa has a constitutional duty to coordinate his Cabinet and the different state organs that report to Minister of Mineral Resources and Energy Gwede Mantashe and Minister of Public Enterprises Pravin Gordhan in order to provide electricity to citizens.

While municipalities have a role to play in the supply of energy, Ngcukaitobi said the national government was responsible for the generation and transmission of electricity.

“Distribution is shared between Eskom, municipalities, and other private users. But municipalities are customers of Eskom. If there is no generation capacity, there is no energy to go to municipalities.

“And so, it’s self-serving for government to say ‘go to municipalities’ when it knows that in violation of its own obligations, it has not ensured that there is enough electricity to go to municipalities,” argued Ngcukaitobi.

Legislation

He said several pieces of legislation, like the National Energy Act and the Electricity Regulation Act, placed the responsibility on the national government for the provision of power to South Africans.

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“Whether you look at this through the narrow prism of fixing the power stations so that they produce electricity, or you look at it broadly as a question of energy sources – the fact of the matter is that the constitutional commitment to universal access to energy has been inscribed into law and those obligations have been imposed on the minister of minerals and energy.

“Under the Eskom Conversion Act, those obligations have been put on the minister of public enterprises. Through the mechanism of the shareholder compact, they have been put on Eskom. And under Section 7 (2) of the Constitution, those are also imposed on all organs of state, including Eskom.”

Ngcukaitobi argued that the president has the duty to ensure that government departments function cohesively, and meet the executive obligations that are contained in statutory law.

“The constitutional and legal obligations are clear, they cannot be evaded and avoided.

“The attempts by the president to avoid and evade should be regarded as fribble and legally unsustainable. At the end of the day, they cannot assign these obligations to municipalities,” he said.

Advocate Ngcukaitobi further argued that Ramaphosa, as the head of the national executive, was duty-bound under Section 83 of the Constitution to ensure that the provisions of the Constitution are fulfilled.

‘Nobody wants to attack Ramaphosa’

Ngcukaitobi also said his clients were disturbed that Ramaphosa in his heads of argument said the 19 litigants lodged their legal action in order to attack him.

“The reason why I’m saying it’s a bit disturbing, it’s because nobody wants to attack President Ramaphosa.

“If it was president [Jacob] Zuma who was the president, we would have brought the same application. What we are concerned about is the office of the president and its dereliction of duty.”

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