Arguing that the government already knew in 1999 that demand for electricity would outstrip supply, counsel for a group of political parties, trade unions and businesses asked the Pretoria High Court on Monday to protect the constitutional rights of South Africans hard hit by load shedding.

“The harm we have shown is irreparable,” counsel for most of the applicants, Tembeka Ngcukaitobi SC, argued.

“This crisis was entirely foreseeable, and it has immediate implications for constitutional rights…” he said. “We are asking for bare essentials. This [case] is not the Rolls-Royce of the human rights world,” he added.

He said there were alternative ways to manage the crisis without causing a total blackout.

“We must arrest the unfolding human catastrophe,” he said.

Ngcukaitobi said Eskom’s defence that the forcible suspension of load shedding [even in some sectors] can cause a national blackout was “completely hyperbolic”.

He added: “We are engaged in one of the most important human rights cases because of the government’s lack of capacity … The plan government has is no plan at all.

“It is unconstitutional to take regressive measures,” he said, adding that by 1996, government had provided universal access to electricity, but now they are taking it away.

“Eskom cannot be fixed,” Ngcukaitobi said. “It cannot be returned to its former glory.”

Advocate Azhar Bham SC said Eskom could not dispute the devastating consequences of load shedding, adding that these were the results of a series of bad decisions, misjudgments and faults.

But, he added, “this is a time when people must listen to each other. The [electricity] grid is too sensitive to play around with [court-ordered] relief. Every solution will need an explanation. You must assess risk against consequence.”

He will continue his argument on Wednesday.

Who are the applicants? 

Political parties: The United Democratic Movement, the Inkatha Freedom Party, ActionSA, Mmusi Maimane’s Build One South Africa and political analyst Lukhona Mnguni.

Doctors: Professor Rudo Mathivha, a professor who works in critical care at Chris Hani Baragwanath Hospital; and Dr Tanusha Ramdin, the head of paediatrics and neonatal care at Charlotte Maxeke Academic Hospital in Johannesburg.

Trade unions: The South African Federation of Trade Unions, the National Union of Metalworkers of South Africa, and the Health and Allied Indaba Trade Union.

• The White River Neighbourhood Watch, based in Mbombela.

• The African Council of Hawkers and Informal Businesses.

• The South African Unemployed People’s Movement, based in Makhanda.

• The Soweto Action Committee.

• The Mustard Seed Foundation, involved in schools in Makhado in Limpopo.

• Two real estate companies – Ntsikie Real Estate in Midrand and Fula Property Investment in the Eastern Cape.

Who is being taken to court?

• Eskom

• President Cyril Ramaphosa.

• The minister of public enterprises, Pravin Gordhan, and the minister of mineral resources and energy, Gwede Mantashe.

• The director-general of public enterprises.

• The National Energy Regulator of South Africa.

• The South African government as a whole.

What is the court asked to do? 

The case will be brought in two parts. The first, for a provisional urgent interdict, was heard on Monday and, the second, an extensive constitutional review, will be heard later, likely in May.

For the urgent interdict, the court is asked to order the following sectors to be exempt from rolling blackouts:

• Public health facilities

• Schools

• Communication networks

• Police stations

• Water and sanitation facilities

• All micro, small, and very small businesses selling perishable goods.

As an alternative, the court is asked to order the government to put in alternative measures to ensure that these sectors will have electricity during load shedding.

Counsel for the applicants has indicated that they wish to amend their notice of motion, and a new set of relief demands will be presented to the court on Wednesday.

The second part of the legal action will involve an extensive constitutional review of the role of the president, ministers and the South African government, specifically their failure to ensure an uninterrupted and reliable supply of electricity, and how this violated the constitutional rights of those in South Africa.

The court is also asked to examine Eskom’s role and failure to discharge its legal obligations to provide a reliable electricity supply. This case has been scheduled for a hearing in May.

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What has happened since court papers were filed in this matter?

Since these papers were filed, Ramaphosa declared a new state of disaster relating to the electricity crisis in South Africa. Eskom CEO André de Ruyter, who resigned from the power utility last year, left his post early after a tell-all interview with eNCA’s Annika Larsen. Load shedding was suspended on the first day of the hearing. Kgosientso Ramokgopa was appointed as the Minister of Electricity.

What happened on Monday?

Ngcukaitobi said their focus during argument would be the devastation caused by load shedding in the health sector and the education of children, and the impact on safety and security as police stations close during load shedding.

“It is also putting a major stress on water infrastructure,” he said.

He highlighted that load shedding, according to papers before the court, has likely cost the country R338-billion over the last decade.

“The year 2023 has seen the worst load shedding so far,” he said. “We are not asking the court to end load shedding. We are asking for the most critical sectors to be exempted,” he said.

He said the national government “didn’t share Eskom’s hysteria over a total blackout … Both national government and Eskom caused load shedding. This was not an act of God.”

He said that by 2006, government was able to provide universal access to electricity, but then “this same government had betrayed its commitment to human dignity”.

“How can President Cyril Ramaphosa say he has no legal obligation to provide electricity?” Ngcukaitobi asked, referring to the president’s replying affidavit filed in this matter.

“Now they are taking access away. We are regressing,” he said.

“Government itself took our electricity away…”

He said the government knew in 1999 already that demand would exceed supply.

“With respect to power generation, it sat back, folded its arms and did nothing … The government took its eye off the constitutional ball.”

He said De Ruyter said in court papers that they needed 4,000 to 6,000 megawatts to be added to the grid.

“Mantashe [Gwede Mantashe, the Minister of Minerals and Energy] and [President Cyril] Ramaphosa knew about this,” he added.

Ngcukaitobi said in papers before the court that Mantashe referred the issue of plans to end load shedding to Ramaphosa. But Ramaphosa’s affidavit, Ngcukaitobi said, has such “levels of opacity” on what is happening on the ground that he does not consider it reliable evidence.

“Ramaphosa does not leave us any wiser,” he said, and even if the government took steps to address this, it wasn’t constitutionally compliant.

“The Constitution isn’t suspended during load shedding … There is no scope to do nothing,” Ngcukaitobi said to the judges.

He said the Constitution puts the responsibility for electricity provision squarely on the shoulders of the president.

“He cannot have a scenario where Mantashe says Eskom is trying to overthrow the state through load shedding.

“You must find that Ramaphosa failed to coordinate his Cabinet,” he argued.

“The attempts by Ramaphosa to avoid and evade are feeble.”

He said municipalities cannot shoulder the blame for load shedding as their job is to distribute, and South Africa has a generation problem.

“There is an overall defence of cost and budget. But can it be a complete defence? They provided for a state of disaster. Where is the money? If they didn’t have it, why declare a state of disaster? Otherwise, their regulations will just be a sop.”

Advocate Bruce Dyke SC, arguing on behalf of ActionSA, said the purpose of the application was to ameliorate the human cost of load shedding.

“Public health is under enormous pressure,” he said. “We are facing a humanitarian crisis the likes of which this country has never faced.”

“Why must the citizens of this country pay for the failure of power stations that were not fully commissioned?”

He echoed Ngcukaitobi’s plea to the court: The judiciary must step in.

“We want the court to give teeth to the disaster regulations. There has been a catastrophic failure by Eskom and the state to deal with this problem.”

The case is being heard by Judges Norman Davis, Colleen Collis and Jabulani Nyathi. It will continue on Wednesday.