Gordhan files for leave to appeal load-shedding ruling

Public Enterprises Minister Pravin has filed for leave to appeal the Pretoria high court ruling compelling him to take reasonable steps to ensure a constant power supply to public facilities, arguing that it is vague and impossible to implement.

“The rule of law requires that a court order must be clear, and that its meaning must be readily ascertainable, so that it can be readily implementable,” the minister said in the papers filed this week in which he is asking for a hearing at the supreme court of appeal.

The judgment handed down in early May found that load-shedding constituted an infringement of constitutional rights and ordered Gordhan to take all reasonable steps to ensure sufficient electricity supply to spare public health facilities, schools and police stations power interruptions.

It gave the minister 60 days to do so.

Gordhan said the court did not spell out the steps he must take to comply with its order.

“The order requires the minister to determine as to which are ‘reasonable steps’ which the minister must take on his own and which the minister must take in conjunction with others to ensure that there shall be sufficient supply or generation of electricity,” he said, adding that this does not meet the standard for a valid, constitutional order.

Furthermore, he submitted, the court order differs somewhat from the relief the applicants in the case sought.

Whereas they asked the court to order the state to take immediate steps to procure alternative sources of electricity or energy for the public institutions in question, the court ventured further and proscribed that he must “ensure that there shall be sufficient supply or generation of electricity to prevent any interruption of supply as a result of load-shedding”.

This is more onerous, Gordhan said, and beyond his ability.

He added that since the court held that generators were inadequate as they often run out of fuel and cannot fully compensate for the lack of power supply, it was impossible for him to understand what reasonable steps he could take to comply with the order.

Turning to the 60-day timeframe, Gordhan said it was impossible to meet because it seemed that the court imposed that deadline not only for him to take said reasonable steps, but to ensure that these bore fruit and that there was uninterrupted power supply to the facilities.

“Having recognised that the minister does not have the power to generate and supply electricity in paragraph 21 of the judgment and having found that there are multiple causes of the energy crisis and therefore that it would take multiple efforts of varying state organs to fix the causes in paragraphs 27 to 29, it is not possible for the minister, within 60 days even in conjunction with other state organs to ensure uninterrupted electricity supply to the listed public institutions and facilities,” he said.

This was more so still, Gordhan said, since the court did not deem generators a solution, though the applicants would apparently have been satisfied with that.

“In those circumstances, and having discounted generators as not sufficient, it is impossible to procure alternative sources of energy (eg solar PV panels) and install them within all the listed facilities within 60 days.”

Gordhan added that, even had the court considered generators acceptable, he would not have been able to roll out those to all the hospitals, schools and police stations within the deadline it imposed.

“The court erred in not finding that generators were a viable alternative source of energy or electricity and that hospitals have generators.”

The court noted that the government claimed in papers filed that all state hospitals had generators but that the applicants disputed this.

“These generators are often insufficient, do not nearly replace the electricity needed by healthcare facilities to run all their equipment and often, despite the alleged interventions, run out of diesel,” it said.

“The evidence is further that the hospitals have to buy their own diesel, depleting their budgets and utilising funds for diesel, which funds have been earmarked for other essential expenses needed to run hospitals, such as salaries and medicines.”

Health minister Joe Phaahla has said publicly that generators should be reserved for emergencies and not be made to run constantly to offset load-shedding. The same sentiment has been expressed privately by other departments.

The court found that the applicants — 19 parties nominally led by the United Democratic Movement — had established a prima facie right and had shown that the interruptions to the power supply created the risk of irreparable harm in the form of a threat to the right to life, especially of the sick and elderly in public hospitals.

It rejected the argument that there was no need to grant interim relief because the government had adopted a “roadmap” for ending the electricity crisis. 

The contents and the timelines of this plan are uncertain, a full bench said, and it does not propose to address the urgent needs of the public institutions in question. 

It opted to craft its order widely so as to “leave it in the hands” of Gordhan to decide how he could rectify the situation and to allow him to enlist other organs of state in doing so, in what it said was a nod to the connected nature of all arms of state to deal with the crisis, so that it could fulfil its constitutional obligations.

“Such enlistment would be a simple consequence of the inter-relatedness of organs of state, all who have the duty to promote the constitution and to prevent infringements of constitutional rights.” 

Gordhan argued though that the court had failed to respect the separation of powers, and hence ran counter to the rule of law.

“The order compels the minister to take steps for which he does not bear legal responsibility — not over schools, health establishments, police stations or the provincial and municipal spheres of government.”

It compelled him to do things that would implicate other national departments, including that of mineral resources and energy, and the provincial departments of health and education across nine provinces, plus local government where schools and clinics fall within the municipal sphere.

“The implementation of the court order without any powers on the part of the minister to do what he has been ordered to do, offends the principle of legality in that the minister cannot tell other organs of state to take reasonable steps which even the minister cannot identify in order to comply with the order,” he said.

The court ignored the delineated functions of different ministers and furthermore the fact that its order would oblige the state to “drastically” rearrange its budget allocations to implement the ordered relief within the deadline.

The court, though, said it was apt that the applicants had targeted Gordhan in their quest for interim relief as he had conceded that his department would be directly involved in implementing the state’s electricity plan.

In part B of the case, the applicants are asking the court to declare load-shedding unconstitutional and “ensure a permanent cessation of an unlawful state of affairs”.