Courts cannot force Eskom to end load shedding, says legal expert
Senior lecturer in Criminal and Procedural Law at the University of Pretoria Dr Llewelyn Curlewis says although the Constitution recognise access to electricity as a basic human right, courts cannot compel an immediate end to load shedding.
This comes after a group of entities, including businesses, individuals, political parties and a trade union wrote a letter to the outgoing Eskom CEO Andre de Ruyter and Public Enterprises Minister Parvin Gordan demanding the immediate end to load shedding or provide "a full explanation about why the government is unable to stop load shedding with the immediate effect”.
The group, represented by Mabuza Attorneys, also want the government to disclose to the public the real challenges driving the energy crisis and the solutions that will be implemented to solve the crisis.
Curlewis says while the Constitution does allow any individual or organisation to bring an application to the court holding executives accountable, the court still has to consider Eskom's case before making any reasonable judgment.
"First and foremost, there is a Constitution which interns of our principles of the rule of law, which means that anybody including the government and all the government entities must also comply with the rules and stipulations in the Constitution.
“One of the basic human rights rules is that the government must do anything and everything in its power to ensure that citizens get the right to basic services, such as water and by implication electricity as well because without electricity, water supplies will be cut off as well.
“So yes, there is an obligation between the citizens and the government and the constitutional imperative is to protect those rights and obligations.
“In terms of the law, it is possible for individuals or even firms, or other interested parties to bring applications to compel the government to do its job in order to protect the rules and rights stipulated in the Constitution.
“However, the court can't compel Eskom to end load shedding immediately, the court must ensure that whatever order it directs, it is enforceable that is a principal of law, not a principal of politics.
“Looking at the current situation in South Africa, even if the highest court in this country force Eskom to immediately switch on the light again and stop load-shedding, will they be able to do so? The answer is no," says Curlewis.
He says while businesses can claim for damage, Eskom is unlikely to be able to pay anyone due to its financial situation.
"In terms of the law, if you can prove damage and can prove that the respondent is directly responsible for that damages, then that person can be held liable for the damage.
“You might struggle to prove the quantum of damages, but strictly speaking, it is possible.
“But once again, even if we get a judgment of compensation to be paid out by Eskom, how are we going to see to end that it is practically effected? It is one thing to get the judgment, but it is another thing to get the money because Eskom is already under financial dire stress and doesn't have any assets that we can sell at the public auction.”
ALSO READ
