The constitutional and legal obligations for the government to provide electricity are clear and cannot be avoided nor evaded.

“The attempts by the president to avoid and evade (the legal duty) should be regarded as feeble and legally unsustainable,” said Tembeka Ngcukaitobi SC before the full bench of the high court in Pretoria on Monday.

Ngcukaitobi was representing 18 organisations and individuals, including the UDM, Build One South Africa, Saftu and Numsa, in their court application where they seek an order that schools, health facilities, police stations, small and micro-businesses that deal in perishable goods, electronic communication networks and water provision facilities be exempted from load-shedding.

In the alternative, they seek that these facilities be provided with other sources of energy such as generators or solar panel systems.  

In an affidavit before the court opposing the relief sought, Ramaphosa said the duty to provide electricity fell under the sphere of local government and was provided for in the Municipal Systems Act.

The president said the national departments that the applicants had taken to court could not instruct the municipalities about which institutions to switch on and off. He said municipalities should have been brought to court but were not.

Presenting arguments on Monday, Ngcukaitobi said the applicants did not say municipalities had an obligation to supply electricity.

“We say you have to locate municipalities in the value chain of the electricity provision system.”

Ngcukaitobi said generation and transmission were in the national government’s control, while distribution was shared between Eskom, municipalities and other private users. He said municipalities were also consumers.

“If there is no generational capacity, there is no energy to go to municipalities. It is 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.”

There was no scope for the court to do nothing in the face of these violations, which was what the court was urged upon by the government, Ngcukaitobi said.

There was overwhelming irrefutable evidence of the damage of load-shedding when it came to the right of access to healthcare and the right not to be denied emergency healthcare, he added.

Ngcukaitobi said 80% of South Africans relied on public health facilities for their health needs.

“We are asking for the bare essentials. Keep the hospitals operational 24 hours a day, keep the schools operational 10 hours a day, keep the police stations open 24 hours a day, because they close during load-shedding. That is what we are asking for. It is not a Rolls-Royce of the human rights world. It is a bare essential that is being resisted by government,” Ngcukaitobi said.

Regarding alternative relief insofar as it implicated in the budget, Ngcukaitobi said the ultimate point was that constitutional obligations did not get suspended because of government’s failure to provide enough budget for their fulfilment.

“If buying more generators, buying more solar is going to cost money, so be it. You can never put a price on the bill of rights,.”

Load-shedding had an impact on education, safety and security, and water availability, with small business in particular being negatively impacted, he said.

“This is not the case to end load-shedding. This is a case for limited relief to mitigate the impact of load-shedding, while we all work out if it will be possible for court to end load-shedding through legal means.”

Ngcukaitobi said his clients argued that both national government and Eskom caused load-shedding, and both could have avoided it.

“We say load-shedding is not an act of God. This country once had a reliable, stable and largely universal access to electricity. We are not talking about the days of apartheid. By 2006, this government had achieved the goal of universal access to electricity.”

He said in the past 20 years, government took its eyes off the constitutional ball by not doing its job to ensure there was adequate power supply.

The hearing continues.

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