The Constitution can’t save us from loadshedding-KOOS MALAN

[Nat Quinn]

A stern letter some weeks ago by a group of law firms to André de Ruyter and Pravin Gordhan has been generating a lot of heat. In the letter, written on behalf of several political parties, business people and a trade union, Eskom and the government are admonished among other things to bring an end to load shedding and to stabilise the electricity supply without delay. If not, Eskom must explain how it will systematically phase out load shedding.

It is argued correctly that the rolling blackouts are extremely harmful. All modern societies are powered by electricity. They function thanks to the reliable and continuous supply of cheap electric power.

As a result of this, agriculture, mining and industrial activities are possible, households can function properly, medical care can be provided, and proper education can take place; in fact, it makes it possible for any conceivable activity associated with a modern society.

Owing to the critical importance of electricity supply, all sensible societies assume responsibility for such supply.

Prior to 1923, generation and distribution were the responsibility of a number of larger municipalities and mining houses.

Since 1923 the state, through Eskom, has almost completely taken over this responsibility. The success of Eskom (together with some other essential items of infrastructure) was the most important reason for South Africa’s successful modernisation and economic progress during the twentieth century.

This was the result of (1) long-term planning; (2) consistent investment; (3) maintenance;(4) competent management, and (5) an environment largely free of crime and free of corruption, theft and looting in the form of cable theft and similar (large-scale) industrial crime. The last-mentioned factor was achieved to a considerable extent thanks to a dedicated police service.

These five factors all may be traced back to a single common reality, namely specialisation, which means that specialists with appropriate knowledge, experience and dedication were employed in Eskom and similar institutions.

Specialisation is intimately interwoven with modernisation and stands in stark in contrast with the pre-modernity where there is little specialisation and almost everybody is more-or-less able to do the little that there is to do.

Following decades of state decay since the current incompetent oligarchy “took office” the above five requirements for a well-functioning Eskom have all gone down the drain.

This is why there is no more long-term planning, consistent investment and maintenance. This is why sound management and professional, technical and similar expertise have been replaced by cadre deployment and transformationism because, as was postulated by a former chief justice (referring to the appointment on the bench), it was “not all about merit” and “transformation is just as important” and the Constitution did not require the ”best of the best” be appointed. This is why the largely crime-free environment, with an efficient police service, has bowed to a tattered police service, sullied prosecuting authority and pitiable national defence force (with sincere recognition to the good people who are still there).

It is in these circumstances that the bold attorney’s letter landed on the desks of De Ruyter and Gordhan; and some advocates are eagerly preparing to march to Constitution Hill to approach the court for an order instructing that the light shall shine once and for all.

Such an “order”, of course, is not an actual order, but rather something along the line of a supplication, a wish, a noble dream or something like that, because making such a so-called order is tantamount to trying to achieve the impossible, because Eskom and the state in general simply are too broken to give effect to it.

The court cannot attempt this, because of the valid old maxim that lawyers like to cite in Latin: Lex non cogit ad impossibilia, or as a free explanatory translation: The law does not compel the performance of impossibilities. Something that is impossible cannot be turned into reality by judicial magic words.

The proposed lawsuit to bring about power supply free of load shedding without delay is based on a set of obsolete, false beliefs that the glad tidings concerning the supreme power – the supreme Constitution – are indeed true and that constitutional rights are indeed guaranteed and entrenched.

By virtue of these articles of faith, all we have to do is lift our eyes to the state whence our rights are coming. To achieve this, we simply have to call on the Oracle at Constitution Hill. We shall not want.

Alas, all of this is passé. The supposedly supreme Constitution has broken down; our help cannot come from the state any more. The processes in this regard that may play out in the Constitutional Court ultimately are little more than ritual scenes and the words of the court are precisely that: words. The only thing that a lawsuit on constant power supply will succeed in doing is emphasising the impotence of the Constitution, the court and constitutional rights.

Our help has to come from somewhere else. Communities will have to save themselves.

Let us take stock. A hundred years ago the public got along largely without the state as far as power was concerned. True, the demand for electricity then was only a fraction of what it is today.

On the other hand, these days there are new sources of power generation, such as solar and wind power, constituting a still small but nevertheless significant proportion of the total pool. There also is the untapped potential of hydro-electric power generation. In addition, pebble-bed nuclear power is beckoning in the not-so-distant future.

All the expertise and technology required for this are available in the private sector. Furthermore, a lot of money can be made from this, offering attractive investment opportunities. Coal, of which we have huge quantities, will of course continue to be dominant for a long time to come.

However, generation is not the only problem. Transmission is another cause of concern. An expert from the CSIR recently explained that the national transmission grid not only is old but also does not have the capacity to transmit sufficient power from the Northern and Western Cape, where most of the renewable energy is generated, to the north.

The implications are far-reaching. It means that power distribution also is going to be privatised in part and, even more important, that we will soon have smaller local distributors apart from Eskom.

At present this is still not allowed. Because of their fear of losing control, our oligarchy – the “government” – until recently also refused to allow almost all private power generation. However, the pressure of the situation has caused the government to yield, just as it is going to yield with regard to transmission, and it will have to accept that it is going to relinquish control over ever more things and govern over ever fewer things. And even if it does not yield soon, there simply is going to be private initiative that inevitably will do things “illegally”.

Such “illegality” moreover will be much more useful and much less dangerous than the thousands upon thousands of illegal connections in informal settlements everywhere that are allowed with impunity.

Eskom finds itself facing an enormous crisis that has been brought about by the regressive ANC over almost three decades. It is inconvenient, economically harmful and sometimes life-threatening. It also is sounding the death knell of the ANC.

Most important is that it is a huge step towards community control by means of local electricity autonomy – both generation and distribution. This entails a major step away from the centralist control of the South African state as we have known it for more than a century, towards self-government of communities.

Therefore, letters from lawyers may make news headlines and the court could even attempt to make unenforceable “orders”, but ultimately this is nothing but groping in the dark. Light is elsewhere.

Koos Malan is a constitutional jurist from Pretoria.

This article first appeared in Rapport newspaper. 

 

The Constitution can`t save us from loadshedding – OPINION | Politicsweb

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