Quote of the week

Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.

Justice Albie Sachs
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
16 February 2023

The DA’s flip-flopping on Eskom State of Disaster is embarrassing, and their new plan is legally fraught

The DA declared its support for the declaration of a State of Disaster to deal with the Eskom crisis as far back as May last year — only to turn around and reject it when President Cyril Ramaphosa embraced their idea.

Thanks to well-timed rolling blackouts in the Cederberg, I was spared having to watch yet another of President Cyril Ramaphosa’s State of the Nation Addresses (Sona) last week. From what I gather from the text of the speech and responses from the commentariat class, the speech was too long, exceptionally tedious, too technocratic, and lacking in heart.

Ramaphosa also seemed to have delivered the speech with the charisma and energy of a pap snoek. It was also a blessing to be spared from having to witness yet another round of the tedious big-cock politics of disruption so beloved by the EFF, as well as from the usual displays of triumphant philistinism by some ANC and opposition MPs.

To be honest, had I been given a choice between having to watch Ramaphosa delivering the 2023 Sona, or having to spend several days trapped on the MSC Sinfonia with other Kappityt Festival cruise passengers and being forced to watch every single Steve Hofmeyr performance on that cruise, it would have been a difficult choice to make.

With Steve being booted from the cruise, the Kappityt Festival would have won hands-down — even if it meant that I would have had to listen to Karlien van Jaarsveld singing her famous hit, “Rooilipsoene”, 10 times each day. Go, Karlien! (If I may make a suggestion to the organisers of the Kappityt Festival, why not invite Dodo Nyoka, the young cowboy who sings in Afrikaans, and had a hit last year with his song, Foto’s, in which he sings about wanting to enjoy life by getting a bit drunk, having a braai, and making a few mistakes.)

The big “news” of the night was obviously the declaration of a national State of Disaster, ostensibly to allow the ANC government to fix the rolling blackouts crisis created by the very same ANC government over the past 15 years. As I argued last week, it is not clear that the declaration of a State of Disaster will allow the government to do much to deal with the crisis that it would not have been able to do otherwise.

But the most surprising development of the night came when DA leader, John Steenhuisen, issued a statement before the President’s speech even ended to announce that the DA had “already briefed our lawyers to challenge the announcement in court”.

Claiming (quite correctly, I think) that the government was grasping at straws, the DA leader also claimed that the declaration of a State of Disaster was “dangerous” and “desperate” as it would lead to a looting frenzy.

The statement was, to say the least, rather odd — unless we assume that it was an act of empty political theatre aimed at the DA’s core constituency. Why brief lawyers to challenge the declaration of a State of Disaster (I assume this is what the DA leader meant to say, as one cannot legally challenge an “announcement”) even before regulations and directions have been issued?

In the absence of such regulations and directions, it would be extremely difficult to assess whether the declaration (as well as the measures taken in terms of it), were unlawful, not least because these regulations and directives will give an indication of whether the government would be able to convince a court that the declaration was “necessary” to deal effectively with the power crisis.

What makes the hasty announcement of court action even odder is the fact that the DA is already challengingthe constitutionality of parts of the Disaster Management Act, arguing, among other things, that what constitutes a national disaster “is so vaguely defined that the decision almost [sic] amounts to a discretion”. (If the criteria are vague, it means that the decision to declare a State of Disaster — as opposed to specific regulations adopted in terms of it — would be difficult to challenge in court.)

But what got the commentariat class most excited (yes, I am obviously a member of this class), was the fact that the DA declared support for the declaration of a State of Disaster to deal with the Eskom crisis as far back as May last year — only to turn around and reject it when the President embraced their idea. Evidently, the party was caught out flip-flopping in a manner that would even impress EFF leader Julius Malema.

To limit the pedantic hair-splitting for which the usual party hacks are infamous, let me provide the precise wording of the DA’s pre-Sona position. The DA first made the call in May 2022 for “Eskom to be declared a State of Disaster” to “ensure, among other things that a moratorium is placed on unnecessary regulatory requirements”.

In July last year, the DA “clarified” its position by explaining that the party did not support the declaration of a state of emergency, but rather the declaration of a “ring-fenced” State of Disaster “that is fully accountable to Parliament”.

When several journalists and commentators pointed this out, the DA decided to gaslight voters and journalists by claiming there was no contradiction between the party’s position before and after Sona.

Channelling his inner Lindiwe Sisulu, DA MP Ghaleb Cachalia even accused journalists of spreading disinformation about the DA’s position, and demanded that these journalists apologise to the DA.

Luckily I need not say more about this bizarre attempt to deny reality, as Ivo Vegter, who is sympathetic to the DA, explains it in sufficient detail in an opinion piece published in The Daily Friend, the online newspaper of the ironically named “Institute of Race Relations”.

I find myself — for once — in agreement with Vegter that the DA scored a serious own-goal with its gaslighting. Sadly, this is yet another, and entirely preventable, example of what Prof Somadoda Fikeni memorably described as the DA’s tendency to “mutilate itself in a corner, unprovoked”.

Conjuring up every drop of interpretative charity available to me, let me assume that the DA really did not say what it said in their pre-Sona press statements, or perhaps that it did not realise what the consequences of its original proposal would be.

Taking the proposal at face value, I will now try and explain why the DA’s proposal for a “ring-fenced intervention” (as Steenhuisen renamed the DA’s position in an interview with News24) that would allow for robust parliamentary scrutiny and oversight, may be both unworkable, and unconstitutional.

In his News24 interview, Steenhuisen suggested that the DA supported a ring-fenced State of Disaster/intervention which would focus “on specific aspects of the energy crisis to mitigate its effects and address structural shortcomings to end it”.

This could include the scrapping of “tax levies for Eskom for the purchase of diesel or exempting Eskom from certain labour legislation or removing the red tape preventing alternative energy sources from entering the grid quickly”. (To be fair, similar suggestions have been made by more than one commentator expressing qualified support for the declaration of the State of Disaster.)

The DA leader further suggested that this could be done through non-constitutional measures such as presidential and ministerial directives, as well as legislation in terms of section 44 (2) of the Constitution. The DA has also proposed the creation of a National Assembly ad hoc committee to oversee the implementation of these measures and to hold the executive accountable.

The first problem with this proposal is that much of what is proposed would be unconstitutional and invalid. As a start, presidential or ministerial directives cannot be used to exempt Eskom and other entities involved in the generation or distribution of electricity (or anyone else, for that matter) from obligations imposed on them by legislation — even if Parliament attempts to delegate this power to the president or approves the directives.

This is so, not only because it would be in breach of the separation of powers doctrine, but also because it would be in breach of the provisions of the Constitution prescribing the procedures to be followed for the valid adoption or amendment of legislation.

For example, the only way to exempt Eskom from certain labour legislation is for a bill amending the relevant legislation to be tabled in Parliament, and then for Parliament to adopt that legislation after following the procedures prescribed in section 75 or 76 of the Constitution. (This process usually takes between six months and two years to complete.)

The scrapping of tax levies on the purchase of diesel by Eskom runs into a similar problem, except that section 77 of the Constitution imposes additional procedural constraints on the adoption of money bills (which includes bills that impose or abolish national taxes, levies, duties or surcharges).

Of course, after the minister of finance tables his budget next week, MPs (including DA MPs) may propose amendments to the budget, including by proposing the scrapping of levies imposed on the purchasing of diesel by Eskom, as long as they follow the complicated procedures prescribed in the Money Bills Amendment Procedure and Related Matters Act of 2009, and as long as such an amendment is supported by a majority of MPs.

Where red tape is caused by regulations or directives issued by a relevant minister (and where these regulations could be scrapped without falling foul of the primary legislation), they could be repealed by the self-same minister. However, Parliament does not have the power to instruct a minister to repeal regulations, but MPs sitting on the relevant portfolio committee can hold a minister to account as they see fit.

But by far the most embarrassing aspect of the DA’s proposal — far more embarrassing than its flip-flopping and its tortured attempts to argue it did not flip-flop — is its suggestion (amplified on Monday by Cilliers Brink, the DA “shadow minister” for cooperative governance and traditional affairs), that a set of disaster measures could be brought to Parliament “as allowed by section 44(2) of the Constitution” to deal with the problem.

When I first read this, I fleetingly considered the possibility that Steenhuisen and Brink had sought legal advice on the matter from suspended Public Protector, Busisiwe Mkhwebane and her current legal team.

To understand just how uninformed and misguided this suggestion is, one has to understand that section 44(2) of the Constitution only grants powers to the national Parliament to adopt legislation on the short list of topics over which the Constitution grants provincial legislatures or municipal council exclusive jurisdiction.

Section 44(2) allows the national Parliament to intervene and pass legislation that trumps the legislation passed by provincial legislatures or municipal councils on the listed topics, but only when it is necessary to “maintain national security; economic unity; essential national standards; to establish minimum standards required for the rendering of services; or to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole”.

Now for the punch-line. The most important topics listed in schedule 5 (over which provinces have exclusive competence and to which section 44(2) would apply) are abattoirs, ambulance services, provincial archives, provincial libraries, liquor licences, provincial museums, provincial planning and cultural matters, provincial sport, and provincial roads and traffic.

The most important topics over which municipal councils have exclusive competence are beaches and amusement facilities; cemeteries and funeral parlours; fencing and fences; licensing of dogs; markets, noise pollution; street trading; street lighting, and traffic and parking.

It is difficult to imagine that any aspect of the Eskom crisis was caused by provincial legislatures or municipal councils passing legislation or by-laws on any of the topics listed in schedule 5. (To pre-empt claims by members of the blue troll army that I am guilty of spreading disinformation, let me suggest, only somewhat tongue in cheek, that the exclusive power of municipalities to regulate street lighting may be the one exception.)

It is all rather depressing, and not only because it would be good for the country if the official Opposition (and other opposition parties) acted in ways that enhanced its credibility and legitimacy, instead of shooting itself in the foot at every opportunity it gets.

The theory here is that the more effective and credible opposition parties are, the more competitive elections are likely to become, and the more competitive elections become, the more power voters have, and are perceived to have, to hold the governing party accountable.

But it is also depressing because what the DA proposals also illustrate is that there are no quick-fix solutions for the electricity crisis. The politicians who tell voters otherwise are lying and they must surely know this. Such politicians potentially pose a threat to our democracy.

When large numbers of citizens embrace the kind of magical thinking that allows them to ignore the facts, the science, and everything else, and makes them believe that the party of their choice will make the impossible happen, they inadvertently prepare the ground for the takeover of our democracy by populist and/or fascist political parties.

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