SA’s ESKOM faces legal action as power cuts batter companies; lawyers issue letter of demand

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  • High-profile lawyers, leaders, and major groups have issued a letter of demand to Eskom CEO Andre de Ruyter and Public Enterprises Minister Pravin Gordhan.
  • The legal teams said their clients instructed them to demand that load shedding be stopped with immediate effect.
  • Eskom and Gordhan have until 20 January to respond to the letter to avoid legal action.

SOUTH AFRICA: Several high-profile lawyers, leaders, and NPOs have threatened Eskom CEO Andre de Ruyter and Public Enterprises Minister Pravin Gordhan with legal action following their failure to provide a stable power supply to the country.

The letter issued to De Ruyter and Gordhan on Monday, was addressed by Mabuza Attorneys and at least six other law firms – Buthelezi Vilakazi Inc, Makangela Mtungani Inc, Mketsu & Associates Inc, Mphahlele & Masipa Inc, Madlanga & Partners Inc and Ntanga Nkuhlu Inc Attorneys.

The legal team has received the backing of UDM leader Bantu Holomisa, Build One SA leader Mmusi Maimane, policy analyst Lukhona Mnguni, the IFP, the National Union of Metalworkers and several NPOs.

The legal team said their clients instructed them to demand that load shedding be stopped with immediate effect and, if not, a full explanation of why the government could not stop it.

Alternatively, they also demanded a specific timetable for when load shedding would end, and the reasons for the timetable.

They said the state should develop and make publicly available a clear plan to end load shedding, which must include the resources available to ensure it was realised.

ROLLING COVERAGE | Eskom and load shedding news as it happens

Lastly, the lawyers demanded the 18.65% increase granted by the National Energy Regulator of South Africa (Nersa) should not be implemented, pending the determination of the court challenge their clients intended to institute.

Eskom and Gordhan have until 20 January to respond to the letter to avoid legal action.

“If we are compelled to bring proceedings which we hope to avoid, papers shall be lodged on 23 January 2023 for urgent relief,” the lawyers stated.

“It cannot be disputed that the state, as represented by the ministry of public enterprises and Eskom, has not taken any reasonable measures to provide vulnerable South Africans with adequate and reliable energy, whether electricity or any other alternative forms of energy.

Former DA leader Mmusi Maimane

Mmusi Maimane.
Gallo Images Brenton Geach/Gallo Images

“In so doing, the state has contravened its duty to provide energy as imposed by the Constitution, national legislation, and contract.”

On Monday afternoon, Eskom announced Stage 4 load shedding would be implemented at 05:00 to 16:00 from Tuesday, followed by Stage 5 load shedding at 16:00 to 05:00 from Wednesday.

The embattled power utility said over the course of this week, 14 generators were expected to return to service, helping to ease the pressure on the power system.

Eskom bought an additional 50 million litres of diesel on 6 January 2023.

But the legal team said in its letter that the state had failed to manage the grid responsibly, resulting in material breaches of the constitutional rights of citizens.

“Eskom is an organ of the state. The Constitutional Court has affirmed its role to supply electricity to ensure the economic and social wellbeing of the people.


United Democratic Movement leader Bantu Holomisa.
Gallo Images/Frennie Shivambu

“It affirmed further that Eskom cannot unilaterally reduce the bulk electricity it supplies. This ruling does not only apply to the supply of electricity to municipalities, but equally to Eskom’s general obligation to transmit and deliver electricity to the nation as a whole.”

Since Eskom implemented Stage 6 load shedding last Wednesday, many small businesses have buckled under its strain, courts have come to a halt, and hospitals, schools, and households have been left without stable electricity supply for eight to 12 hours a day.

According to the lawyers, some of the biggest problems caused by load shedding and leading to the closure of SMMEs included the lack of internet or Wi-Fi, staff morale, and productivity, ATMs being out of order, loss of planning due to unplanned outages and the inability to trade.

“Small business report that load shedding is tough on their operations and can be mitigated only by long-term solutions such as the installation of solar panels, and generators, devices which they can ill afford.”

Some SMMEs have also reported their equipment had been damaged due to power surges.

Besides its impact on businesses, traffic has also worsened since most traffic lights stopped working during load shedding, and security concerns were raised.

READ | Eskom sabotage: How De Ruyter was undermined by new board, excluded from meetings, forced to resign

“As security systems turn off when the power does, it leaves businesses vulnerable to all sorts of attacks, and has even caused businesses to get more insurance coverage,” the letter stated.

“We are instructed that the prejudice is due to only the unreliable electricity supply and the protracted power outages occasioned by the ever-increasing number of hours per day that they are left without power.”

The lawyers argued load shedding also disrupted teaching and learning after it was reported some schools had not been built in a way that let the flow of natural light into the classroom.

Therefore, without generators, many schools and pupils were left in the dark.