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While there is wide enthusiasm and hope pinned on the legal action to force Eskom and Public Enterprises Minister Pravin Gordhan to end load shedding, legal experts aren’t hopeful, saying it is likely to be a practically futile exercise.
Seven law firms acting on behalf of several organisations, political parties and individuals, have issued a letter of demand, in the first step of legal battle meant to see load shedding stopped with immediate effect and, if not, a full explanation of why government could not stop it.
But University of Pretoria (UP) senior lecturer in the Department of Procedural Law Dr Llewelyn Curlewis said unless the applicants could provide suggestions on how Eskom could end load shedding, the order would not be enforceable.
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“…unless the applicants can come up with an alternative as a viable alternative that the court can enforce, they will have a problem. So, they must not only [complain and make demands], they must also come with recommendations and must ask the court to compel government and Eskom to comply with whatever viable recommendation suggested in the court proceedings,” he said.
Curlewis said he supported any action to put pressure on government to end load shedding and that the court was probably the most reliable, effective way of ensuring that the citizens’ sentiments are raised and brought to the attention of the government and the world.
He, however, explained that the principle in law is that a judgment can only be handed down if the court can ensure effective implementation of the orders.
Curlewis said in theory, the court could grant the application, but the problem would be ensuring that government complies with the order to stop load shedding.
“Obviously the only remedy in this situation in civil litigation is contempt of court, by asking [Gordhan] or Eskom [CEO Andre De Ruyter] to come and explain to the court why they should not be held accountable and in contempt of court,” he said.
Curlewis said Gordhan and De Ruyter were acting in their official capacity, on behalf of their respective institutions, and that no court would throw them in jail because there is nothing they could personally do about the situation.
“It is not a single person that can solve the problem. We will probably see the application in court and even in favour of the applicants, but how are we going to effectively give effect to the judgment? They have a contract with citizens to provide services in terms of the constitution. That is fair and well, and I agree with it, but then we go to court, we win, and then what? Are we going to put everyone in the cabinet in jail?” he said.
Constitutional law expert and executive chairperson at Tumbo Scott Incorporated, Deborah Mutemwa-Tumbo, said to oppose the application, government would have to justify load shedding, which she said would be unconstitutional.
She said government would have, to the extent that it is considered to be a limitation of rights, to prove to the court that load shedding is reasonable, rational, and serves a legitimate government purpose.
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“If for example it can be proven that government could achieve its aims through less restrictive means, government could find themselves on the wrong side of the legal battle. In which case, it is also important that the respondents lay out a good and proper justification for the load-shedding. At this stage however, this is mostly speculation,” she said.
Mutemwa-Tumbo explained that the main aim of the court challenge would be to have the court declare that load shedding is unconstitutional, on the premise that access to electricity is a basic human right.
She said load shedding, to an extent, could be viewed as a government policy or a limitation of a human right, then it can be challenged in court.
Government, Mutemwa-Tumbo said, will have to meet certain criteria in order for the court to find that load shedding is rational, reasonable, and serves a legitimate government purpose, therefore constitutional.
“There have been many cases in the past where the limitation of rights through government policy has been challenged on the basis of the principle of legality, and the courts have found against the government. I am not saying that that is what will happen here, but it is possible,” she added.
According to Mutemwa-Tumbo, if the application is successful, it would essentially mean that load shedding will be declared unconstitutional, not reasonable, or justifiable in an open and democratic society.
“…the implications would be that load shedding must be stopped by government. This, however, would not be immediate because, say the courts find in favour of the applicants, the courts usually give respondents time to implement alternatives. So even if successful, the application would not have an immediate effect,” she added.
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