Court-declared government culpability in SA’s power failure

Court-declared government culpability in SA’s power failure could be opposition’s great asset in 2024 poll

Court-declared government culpability in SA’s power failure could be opposition’s great asset in 2024 poll

 Illustrative image: Matshela Koko; Kgosientsho Ramokgopa; Mogoeng Mogoeng. (Photo: Gallo Images / Papi Morake | Leon Sadiki / Bloomberg Gallo Images / Alet Pretorius | Waldo Swiegers / Bloomberg via Getty Images | Wikimedia)


By Stephen Grootes


03 Dec 2023  7

A high court ruling that the government has breached the Constitution and the human rights of citizens by failing to run the power system properly is going to have big implications for our debates around rolling blackouts – and our politics. It is going to be used by opposition parties as proof of the ANC’s failure to provide services. The government may be forced to appeal the ruling that it must provide services, during an election when it will argue it should again be entrusted with the very same service delivery. What the ruling will not do, is end rolling blackouts.

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On Friday, 1 December, the Gauteng Division of the High Court in Pretoria handed down a judgment in a case brought by opposition parties in which three judges found that government was responsible for rolling blackouts, and the numerous failures that led to it.

It also ruled that government (in the form of Electricity Minister Kgosientsho Ramokgopa) must take steps to stop the interruption of power to public health facilities, police stations and schools by the end of January.

These findings are likely to have important consequences.

Of course, the causes of rolling blackouts have been known for years. In the beginning, it was the fault of the ANC government.

It was then perpetuated by the ANC

Even now, the ANC’s internal politics stops government from working on stopping it.

All that said, this judgment is still important.

Now, the judges have declared this is the fault of the ANC government and, by implication, all of their deployees. 

The judges also explained how the lack of investment, the failure to stop State Capture at Eskom, and all the mistakes since then brought us to the current mess.

This will now allow opposition parties to throw this judgment in the ANC’s face, repeatedly and at every opportunity. In particular, they will point to the fact that State Capture is a crucial part of the problems at Eskom, and how it also prevented government from fixing the problem.

It will no longer just be an accusation or a political statement, but a legal ruling, and an indisputable fact.

The judges also say that one of the problems was that power stations were run too hard without proper maintenance, which could be important in future discussions.

This may be used as a rebuke to people who support Matshela Koko, who argue that he should be brought back as Eskom CEO because there was no rolling blackouts during his time. 

This is despite the fact the NPA believes it has enough evidence to charge Koko with corruption (the case against him was struck from the roll last week because the NPA was not ready to proceed – it has stated that it will reinstate those charges).

Even someone like former Chief Justice Mogoeng Mogoeng, during his address at the SAfm Inaugural Lecture last week, asked why the Eskom management that stopped rolling blackouts was not brought back.

For a former Chief Justice to make a comment that appears to be approving of people like Koko or Brian Molefe – despite the serious evidence against them – is simply astonishing. But it is also evidence of how far this false narrative has spread.

The ruling appears to now say that Ramokgopa, in his ministerial capacity, is the person who is ordered to prevent rolling blackouts. But he may not have the political or legal power to do that. 

He has no formal powers over Eskom, and cannot even appoint a new CEO (Public Enterprises Minister Pravin Gordhan has that power). 

Ramokgopa cannot make energy policy either, or even approve new power generation projects – it is Energy Minister Gwede Mantashe who has the power to do that.

Ramokgopa may now argue that, as the court ruling points to him, he should be given the powers to fix the problem. (That argument could be used, of course, by those who believe the judges have overreached in their findings – Ed)

In the meantime, government now has to consider the difficult question of whether to appeal this ruling.

If it does not appeal, the guilt for rolling blackouts will be firmly etched into their record, as will all other findings, in particular that government must prevent rolling blackouts at schools, hospitals and police stations by the end of January.

There is literally no chance of government being able to accomplish that without massive disruptions to other parts of the country.

The people who brought the application would probably claim that it would thus be in contempt of court.

All of this would play into the politics of the elections, where the ANC knows that rolling blackouts will cost it votes. And opposition parties know that rolling blackouts pushes up turnout for them.

Still, if government does appeal, then it will be arguing, in court, that it should not have to fulfil an obligation the ANC itself promised to deliver on every time it stood for re-election in the last 30 years.

This hapless spectacle would be presented during an election in which its service delivery track record will be the main issue.

It would not be the first time the ruling party would face such a difficult conundrum.

Ten years ago, Basic Education Minister Angie Motshekga introduced Basic Norms and Standards for schools to regulate what resources schools should have. And that very same minister has previously argued in court that her department should not have to implement her own policy.

Of course, nothing judges or lawyers say will change the laws of physics. 

Eskom power stations will not generate any more power after this ruling than they did before it. And it won’t fix an economy that is buckling under the pressure it inflicts on businesses.

But it will now increase the pressure on government to fix it. And, even more importantly, it has declared whose fault it is that South Africa is in such alarmingly bad shape.

This fundamental failure is shaping up to be a decisive debate in the 2024 elections. DM