At Least 20 Organisations Take Eskom and Government Institutions to Court

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Over 20 organisations, including trade unions and individuals such as Dr Lufuno Rudo Mathivha and Dr Tanusha Ramdin, have taken power utility Eskom and various government institutions to court over load shedding. The respondents in the case are Eskom, the Presidency, the Minister for Public Enterprises, the Director General, the Minister of Mineral Resources and Energy, the Director of the Department of Minerals and Energy, the Mineral Resources and Energy Department's director-general, and the National Energy Regulator of South Africa, as well as the National Energy Regulator of South Africa, the People's United Democratic Movement, and Nersa.

The applicants argue that Eskom and the state have contravened their constitutional duty to provide an uninterrupted supply of electricity, particularly to critical sectors such as health, in accordance with the regulatory framework. They contend that the reasons given by Eskom and government institutions for load shedding are unjustifiable excuses and that there are a number of alternative energy sources available that the respondents could procure.

In court papers, the applicants argue, "Their excuses as to the practicalities are just that – excuses. The solutions are not too expensive, will not take too long to implement, and are not actually prevented by any law. Embeddedness is an avoidable problem. Load shedding could still be effectively implemented to match the supply and demand of electricity while exempting the vulnerable entities."

The applications examine why the duty to supply electricity is not that of local government and why it is the respondents’ duty to provide the consumers with an uninterrupted supply of electricity. They argue that the government has a policy and regulatory role in the administration of Eskom, determines the energy agenda by legislating for electricity generation, transmission, and distribution, and that Eskom is no more than the entity through which the state implements its responsibilities.

Complaints also include that the state has failed to maintain the grid and create new generation capacity despite being aware since 1998 that Eskom would run out of reserve power by 2007, the derelict management of Eskom by its former CEO, André De Ruyter, and the state’s failure to hold him accountable.

The respondents argue that there are extensive plans in place to ensure that, within the next 24 months, load shedding will effectively be solved. Eskom contends that the fleet was not maintained because of the updated IRP of the government’s policy decision that “coal-fired power stations are all expected to be decommissioned at the end of 50-year plant life”.

In conclusion, the court case is ongoing, and the applicants and respondents are presenting their arguments to a full bench of the High Court until Thursday this week.

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