One of the most foolish and dangerous court judgments I have ever heard was made on 5 May 2023 in the Gauteng High Court by Judge Norman Davis.

He ordered that the Minister of Public Enterprises (Pravin Gordhan) should, within 60 days, take all reasonable steps to ensure the continued supply of electricity during load-shedding to hospitals, clinics, schools and police stations. He said failures to provide electricity to these institutions were ‘infringements of fundamental Constitutional rights’.

By this judgment, which was supported by Judge J S Nyathi, they showed ignorance not only of electricity technology, and of our Constitution (as far as I understand it anyway) but, more troubling, of the fundamental relations between the government and the citizens in a constitutional democracy. Their judgment threatens to worsen South Africa’s already dire electricity supply.

In this case, the ‘Applicants’ were various political parties, trade unions, individuals and activist groups, including the UDM, the IFP, Action SA and NUMSA, and the ‘Respondents’ were Eskom, Public Enterprises, Minerals and Energy, the National Energy Regulator (NERSA), the SA President and the SA Government.

To take the Constitution first, I find no mention of electricity in our Bill of Rights. Paragraph 27 mentions the right to healthcare, food, water and social security. I suppose you could stretch this to meaning you cannot have proper healthcare unless you have a good supply of electricity.

But the operative word in this sentence is ‘stretch’. Personally, my doubts go deeper than this.

There are ‘First generation rights’ and ‘Second generation rights’. The former deal exclusively with relations between the government and the people. They include equality before the law, no discrimination by race, class or sex, no detention without trial, free speech and so on. All of these are enforceable by the government, and most of these just mean freedom from arbitrary restrictions by the government.

Second generation rights refer to social and economic conditions such as food, water, healthcare, housing and so on. I do not believe these are rights at all, and I believe that governments are neither competent to provide them nor should be obliged to provide them. In a country with full first-generation rights, good social and economic conditions will be provided by the private sector much better than the state could ever do – with one or two exceptions (of which, ironically enough, electricity supply in a good state-run utility is one – but Eskom is no longer a good state-run utility).

Total blackout

I must exonerate Judge Davis from an incorrect charge. He did not ban load-shedding, as some have implied. If he had, it would have indeed been a catastrophe. Eskom sheds load to save the whole country from total blackout. If all the power stations on the grid cannot meet demand, the frequency will drop. All power stations watch the frequency carefully because if it drops below a certain point, it will damage their equipment. When it does drop, a station will shut itself down (usually automatically).

The frequency for the remaining stations will drop further, so another station will follow, and another and another, in an accelerating cascade, until every station in the country is shut down. The total blackout would take seconds.

To start the stations up again would take over a week. Davis acknowledges this. But his judgment will make it more difficult to implement load-shedding by suggesting certain institutions should have priority. Given our distribution networks, it is very difficult, if not impossible, to isolate them from their less-essential neighbours on the grid. Even making load-shedding more difficult is dangerous.

He said that if it were not possible for Eskom to provide schools, hospitals and police stations with grid electricity during load-shedding then alternative sources of electricity should be provided for them. I suppose he means diesel generators, since large amounts of electricity for hospitals, day and night, from wind, solar and batteries would be prohibitively expensive and completely impractical.

Who should be responsible for providing this electricity? Judge Davis seems to think it should be the Minister of Public Enterprises. In his judgment he says that the respondents have an ‘obligation to supply electricity’. This is news to me. I know of no obligation for Eskom to supply electricity under any law.

Surely right

The 1923 Escom act does not mention it, neither does any subsequent electricity act. President Ramaphosa was surely right when, replying to this court in February, he said that none of the three spheres of government (national, provincial and local) were constitutionally obligated to provide electricity.

If not Eskom, then who should be obliged to pay the very high costs of providing alternative energy to schools, hospitals and police stations during load-shedding? A deeper question: why are they considered more needy of good electricity when far more poor people, far more desperate for it, are not considered?

This is not Judge Davis’s fault. He was simply dealing with the case before him, brought by the applicants mentioned above. My ‘deeper question’ should be addressed to them. The people suffering most horribly from inadequate energy are the millions of poor people and their children living in the townships and squatter camps, burning coal, wood and paraffin indoors, in small, crowded dwellings without chimneys. The resulting indoor air pollution is a thousand times more deadly than the outside air pollution from the dirtiest coal power station in South Africa. It causes death and disability, and permanent brain damage in children on a massive scale.

The indoor burning of these dangerous fuels causes horrible fires with multiple deaths and disfiguring. It is true that electricity failures at hospitals will kill patients. But their deaths are sporadic, occasional. The deaths from indoor air pollution are continuous, happening all the time, every day, and on a huge scale. Why don’t some ‘respondents’ bring up their case in front of Judge Davis, and ask him to demand that the Minister of Public Enterprises, or somebody or another, should immediately take ‘reasonable steps’ to ensure that every shack and every dwelling in the squatter camps and townships is provided with good, clean electricity?

All true. But …

Judge Davis gives reasons for Eskom’s failures. The reasons he gives are correct, but he omits equally important reasons. He says Eskom fails to supply sufficient electricity because it did not build new power stations in the 1990s and early 2000s, when they were urgently needed; because it has a shortage of suitably skilled engineers and technicians; and because the new coal stations, Medupi and Kusile, have been disasters of incompetence and corruption. All true.

But Eskom has also been wrecked by BEE procurement, where it was forced to buy bad coal at high prices; and by affirmative action, employment equity, transformation and cadre deployment, where skilled, experienced white engineers and technicians were replaced by unskilled, inexperienced black ones chosen by their skin colour and political connections.

The government does not have it in its power to address Davis’s reasons for failure right now, but it does have the power to address my reasons. It could simply scrap all the laws of racial preferment. Then Eskom could get good coal at low prices, and it could employ the best engineers, technicians, operators and managers. I wonder why Judge Davis did not recommend this.

You cannot run a healthy democracy without politicians, and you cannot have a decent rule of law without judges. Unfortunately, both are necessary. I just wish politicians could be more honest and sensible, and trouble themselves to learn something (just a teeny bit, chaps) about science.

And I wish judges stuck to interpreting the existing laws and not making new ones. I wish they would restrict their judgments as narrowly as possible to the legal facts in front of them, and stop their wretched philosophical pontifications.

I don’t want judges to be wise; I just want them to be correct. But we are forced to live with them as they are. You have to accept the decisions of the referee, however bad, or else you cannot have a game of football. And you have to accept the decisions of the judge, however bad, or else you cannot have the rule of law.

But at least you can appeal against a judgment, which you cannot against a referee’s decision (as far as I know), and I am happy to say that Minister Pravin Gordhan is going to do just that in the cause of Judge Davis’s decision. For once, I agree with Gordhan.

SOURCE:A foolish, dangerous judgment on load-shedding – Daily Friend