At least 20 organisations (applicants) have taken power utility Eskom and government institutions (respondents) to court to answer for load shedding.
Respondents in the matter 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 ad Energy, the Department's director genera;l and the National Energy Regulator of South Africa as well a the National Energy regulator of South, the People's United Democratic Movement and Nersa the Energy Regulator of South Africa.
Applicants include Dr Lufuno Rudo Mathivha, Dr Tanusha Ramdin, the South African Federation of Trade Unions (Saftu) and the Federation of South African Trade Unions and the Metal Workers Union of South Africa (Numsa), amongst others.
In an application for which a full bench of the High Court is sitting until Thursday this week, the parties put to the court whether Eskom and the state have contravened their constitutional duty to provide an uninterrupted supply of electricity, particularly to the identified critical sectors, such as health, in accordance with the regulatory framework.
The applicants contend the reasons furnished by Eskom and government institutions for load shedding constitute no more than unjustifiable excuses.
The applicants argue that there are a number of alternative energy sources which the respondents could procure.
"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 parties said in court papers.
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.
Arguments are 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 call him to account.
"Arguments are that adding to these challenges is the failure of Eskom and the state respondents to maintain Eskom’s current fleet of existing power stations. The state, in its adopted IRPs (Integrated Resource Plan for Electricity), elected to defer the maintenance of the generating fleet. Eskom used money allocated for maintenance to pay debt. The decision to defer maintenance was taken even when the state, as a policymaker, knew that “supply constraints are further complicated and increased by the urgent need to supply electricity," arguments read.
A New Generation Maintenance Strategy was adopted to “ensure that required maintenance was carried out on key identified generators, regardless of the demand-supply balance”.
The objective of the New Generation Maintenance Strategy was “to arrest the decline in performance and return the average availability factor of the current fleet to 80% over the next ten years”.
However, the strategy was never adopted, and today, some 10 years later, the Energy Availability Factor (EAF) is at an abysmal 56%.
The respondents essentially put up defences that there are extensive plans in place to ensure that, within the next 24 months, load shedding will effectively be solved. There is no need for additional measures, plans, accountability, or oversight, because the respondents have everything under control.
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”.
"This decision was made even though the government knew, and conceded in the updated IRP that the lifespan of the fleet could be extended and that this was an economically viable option. Again, the previous Board implemented this decision when it decided in 2017 to extend the life of the fleet. This decision was retracted by Eskom’s current administration,“ the parties argue.