Eskom ruling is magical thinking – courts cannot fix intractable governance problems

The ruling by the North Gauteng High Court last week on the government’s obligation to provide an uninterrupted supply of electricity to schools, hospitals and police stations has been widely misunderstood. Even if the judgment is not overruled, it will do little to address the fundamental problem, not only because the order is directed at the wrong party, but also because it is vague and practically impossible to implement.

According to EskomSePush, the electricity in my neighbourhood will be off for more than nine hours today. It is probably much worse for many others, and it will probably get worse for all of us before it gets better – if it ever gets better.

Because the problem is systemic and political and because of the widespread (and valid) loss of trust in the ability of the ANC government to fix what it had broken, it is not surprising that the UDM and other parties turned to the courts for help.

But court orders cannot magically fix seemingly intractable governance and management problems. When a court ignores this fact and, perhaps in frustration, succumbs to magical thinking – as a full bench of the North Gauteng High Court seemed to have done last week in a judgment penned by Judge Norman Davis in United Democratic Movement and Others v Eskom Holdings and Others – by issuing orders that appear impossible to implement and may not have any beneficial effect, it imperils the authority of the court and respect for the rule of law.

Let me explain.

The UDM originally asked the court to instruct the minister of public enterprises and/or Eskom to ensure that all hospitals, schools, police stations and various other affected parties are exempt from load shedding. In the alternative, it asked the court to order Eskom and the minister of public enterprises to “take immediate steps to procure alternative sources of electricity and/or energy” for schools, hospitals, police stations and a list of other affected parties, “including but not limited to solar panels and generators”.

The court declined to grant the exemption order. Although the judgment is not a model of clarity, it looks like the court declined to do so because it accepted that it was not currently possible to exempt all schools, hospitals and police stations from load shedding. This is so because many of these entities are “embedded” in the surrounding electricity network, which means that an exemption “would result in a whole network or suburb (or town even) having to be excluded, which would result in no actual ‘load’ being able to be shed”.

Instead, the court latched on to the UDM’s alternative request, and ordered the minister of public enterprises to “take all reasonable steps within 60 days from date of this order, whether in conjunction with other organs of state or not, to ensure that there shall be sufficient supply or generation of electricity to prevent any interruption of supply as a result of load shedding” at schools, hospitals and police stations.

As far as I can tell (the judgment is unfortunately rather superficial and lacking in substantive legal analysis) the court’s reasoning runs along the following lines:

There is currently not a sufficient supply or generation of electricity to provide schools, hospitals and police stations with an uninterrupted supply of electricity. This infringes on the right of access to healthcare (hospitals), the right to education (schools) and the right to life (police stations).

To cure these rights infringements, the minister of public enterprises (who the court seems to believe oversees the implementation of the plan to fix load shedding), must take reasonable steps to make sure sufficient electricity is generated or procured so that hospitals, schools and police stations have access to an uninterrupted electricity supply.

How exactly this must be done must be left in the hands of the minister who will need to consider the “different permutations” involved.

The first problem with the order for the minister to take “reasonable steps” to ensure a sufficient supply or generation of electricity for schools, hospitals and police stations, is that it is so vague that it would be difficult to determine whether it has been complied with or not.

In most cases where the reasonable standard is used, courts merely declare that an infringement of one or more of the rights in the Constitution occurred and leave it to the executive to address the problem. But here the court ordered the minister to take steps to fix the problem within 60 days.

Arguably this means that almost anything the minister does in the next 60 days might turn out to comply with the order to “take reasonable” steps to do something. Would reasonable steps include the appointment of a ministerial task team to do a feasibility study? Meeting the Eskom board to tell it to do better? Issuing a tender for the installation of generators and solar panels? Launch a campaign to get South Africans to use less of the electricity they only intermittently have access to?

It’s difficult to say.

The second problem is that by focusing on increasing the supply and generation of electricity – an intractable problem caused by Eskom being too dysfunctional to generate enough electricity to serve the needs of the country – the order conflates the systemic long-term problems that cannot easily be fixed, with the short-term question of how to limit the impact of load shedding on hospitals, schools and police stations.

Nothing the minister does in the next 60 days will magically fix (or even improve) the intractable problem of electricity generation. To the extent that the order requires the minister to take “reasonable steps” to generate or procure more electricity, the order is therefore meaningless. It is like ordering the Reserve Bank to take reasonable steps within 60 days to eradicate economic inequality in the country.

The third problem is that the judgment ignores complex constitutional questions about who carries the legal obligation to provide an uninterrupted electricity supply to hospitals, schools and police stations, or to mitigate the effects of load shedding for these institutions where the electricity supply is interrupted.

As a result, it wrongly assumes that the minister of public enterprises has the legal authority to take all the steps envisaged by the order to ensure such an uninterrupted supply of electricity.

Because “electricity and gas articulation” is a competence shared between the national government and municipalities, and because section 73 of the Municipal Systems Act of 2000 directly imposes the obligation to provide basic services (including electricity) in an equitable and accessible manner on municipalities, it is possible that municipalities carry the can on this.

But the matter is even more complex than this, as the provision of healthcare services and basic education are competences shared between the national and provincial spheres of government, raising questions about whether provincial departments of education and health, or the national department, are ultimately responsible for the financing and installation of solar panels and generators at schools and hospitals.

What is certain is that the minister of public enterprises is not responsible for any of this, and has no authority to interfere in the matter by instructing national or provincial departments on what to do.

To the extent that the order requires the minister to do that which the Constitution and legislation requires to be done by municipalities, provincial departments, or by other national departments, the court is instructing the minister to do something that he has no legal authority to do and cannot legally do. To this extent, the order is meaningless and cannot be implemented.

A bit like a court ordering the governor of the Reserve Bank to deliver textbooks to schools in Limpopo.

This does not mean there is no plausible constitutional argument to be made that the government’s failure to ensure the adequate supply of electricity to meet the needs of the society infringes on the right of access to healthcare and the right to basic education.

More specifically, an argument could be made that the failure of the government to take reasonable steps to limit or eradicate the impact of load shedding on the provision of healthcare services and basic education infringes on the right of access to healthcare in section 27, and the right to basic education in section 29 of the Constitution.

The fact that load shedding at schools and hospitals disproportionately impacts the lives of poor and vulnerable people who rely on public health services and attend schools that cannot mitigate the impact of load shedding, would be pivotal in making this argument.

If a plausible argument in this regard is presented to a court in a matter in which all the responsible parties have been cited, a court may then well issue a declaratory order that the relevant rights have been infringed because of the failure to develop a reasonable plan to limit the impact of load shedding on hospitals and schools.

That would be very different from the order issued by the North Gauteng High Court last week, which seemed to have ordered the wrong party to do something that seems close to impossible to do within the time frame provided.

When a court does the latter it undermines its own authority and imperils the rule of law.

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