Andrew Kenny writes that Judge Norman Davis of the Gauteng High Court issued ‘a foolish, dangerous judgment on load-shedding’ when the latter ordered government to ‘take all reasonable steps to ensure the continued supply of electricity during load-shedding to hospitals, clinics, schools and police stations’ on the basis that rolling blackouts infringe on ‘fundamental constitutional rights’.
Kenny and I do not disagree about much, but electricity policy is certainly an area where we do.
Kenny is a veritable energy expert. He knows much more than I ever will about the intricacies of electricity generation, transmission, and distribution. But I know a thing or two about the Constitution, constitutionalism, and public policy, and it is to these domains that I limit my engagement with Kenny’s article.
Judge Norman Davis
Judge Davis has been criticised before. He is the author of the judgment, during the initial, severe COVID-19 lockdown, that declared most lockdown regulations unconstitutional. It appears that in important, public-interest, constitutional litigation Judge Davis is willing to go the extra mile in bringing government excess to a halt, whereas most of his colleagues would adopt a deferential approach. The present case is no exception.
But whereas others criticise Davis for this approach, I believe it is praiseworthy and partly a manifestation of a more mature judicial tradition. According to this tradition, judges are not supposed to be lackeys for the other two branches of government with which they are supposedly ‘equal’, but rather courageous defenders of the interests and freedom of legal subjects. When the rights of subjects are violated, half-measures will not do.
In my view, though, far from going too far, Davis does not go far enough. The institution of load-shedding by a state electricity monopoly should be regarded as per se unconstitutional. Here’s why.
Electricity and constitutionalism
The President, in his affidavit to the High Court, claimed that ‘none of the government respondents have a Constitutional [sic] responsibility to supply electricity to the people of the Republic.’ Kenny endorses this notion, writing that he ‘know[s] of no obligation for Eskom to supply electricity under any law.’
Kenny is correct that there is no explicit ‘right to electricity’ in the Constitution. And, by golly, this is good news! No government, anywhere, should be regarded as the primary supplier of electricity (or food, or water, or clothing, or housing, the list goes on…) to society. It should certainly not be originally required by law to do so.
However, in South Africa, this is a responsibility that government has taken upon itself.
From around 1922, the South African government progressively compelled all South Africans of future generations to be entirely or almost entirely reliant on Eskom for their electricity needs. In this, South Africans had absolutely no choice. The only ‘choice’ available today is for a small portion of the population to pay hundreds of thousands of rands (with a poor return on investment) to go entirely off-grid, or install noisy, fuel-guzzling generators.
For most people, there is no choice: it is Eskom or darkness. This is a direct consequence of political decisions made by the government.
In this context, the government plainly has an obligation (at least when viewed from the perspective of constitutionalism) to provide electricity, if only to limit the damage resulting from its own decisions. Government cannot force people to be entirely dependent on something and then fail to provide that thing.
This is why, as an avowed and openly dogmatic laissez-faire, free-market, capitalist ‘libertarian’, even I think it would be a grave injustice for state welfare benefits to be dismantled in one fell swoop.
The people who rely on the welfare state for their survival do not do so by choice. If they could, they would work for a living, make good money, and not take a cent from the state. But government has created dependency through various avenues, including making labour so legally expensive that many people will simply never find work from a business sector trying to limit its exposure to these expenses. Of course, the government at least has an obligation to not remove the existing relief utilised by the unemployed.
While there might be no ‘right to electricity’ in the Constitution, therefore, there is at least (in my view), an underlying claim that all who find themselves in South Africa have against a government that has forced them into a relationship of dependency, and subsequently failed to deliver.
The Constitution and the law
Just as there is no ‘right to electricity’ in the Constitution, there is also no power granted to government to monopolise electricity (or any other good or service) in the Constitution. Ergo, it is submitted, the Constitution does not authorise government to own and operate an electricity monopoly. We have arrived at our present crisis of rolling blackouts on the back of a government that assumed certain powers for itself found nowhere in the Constitution, thus further strengthening the argument that constitutionalism would require government to repair the damage it has caused.
More basically, however, even if there is no textual constitutional duty to provide electricity, the latest available version of Eskom’s generation licence from NERSA states that it must ‘supply electricity […] to every applicant who is in a position to make satisfactory arrangements for payment thereof.’ In other words, it may only cut electricity to non-payers and insolvent consumers.
And the Electricity Regulation Act under which Eskom is licensed, requires ‘the efficient, effective, sustainable and orderly development and operation of electricity supply infrastructure in South Africa’ and ‘that the interests and needs of present and future electricity customers and end users are safeguarded and met’.
If Eskom’s licence has since been amended to remove or hedge its duty, it is striking that South Africans’ dependency on Eskom has not been similarly amended or hedged.
No action
This is to say, since load-shedding began in 2008, it is doubtful that anything of note has been done to solve an eminently solvable problem. In fact, in a 2015 paper, Kenny wrote that ‘South Africa faces five years of blackouts’. It has now been eight years, and load-shedding is worse than ever. Eskom and the government have done little to solve the problem, and in fact done much to worsen it, like discontinuing a promising project to eventually see South Africa roll out modular nuclear reactors.
Rolling blackouts are not a head scratcher. As Kenny himself argues, the problem is that there is insufficient electricity generation. Humanity has known how to generate electricity for more than a century. Load-shedding ends when more electricity is introduced to the grid. In a manner of speaking, it’s easy. On this Kenny and I appear to agree.
What we disagree about, is what the consequence of government’s inaction should be.
Kenny writes that Judge Davis’ ‘judgment will make it more difficult to implement load-shedding by suggesting certain institutions should have priority. Given our distribution networks, it is very difficult, if not impossible, to isolate them from their less-essential neighbours on the grid. Even making load-shedding more difficult is dangerous’.
In my view, on the other hand, it is imperative that we make rolling blackouts more difficult. Eskom and the government’s options must be progressively limited until only one remains: solving, not mitigating, the power crisis. Government’s room to manoeuvre must be squeezed so tightly that it sees no other alternative but to actually fix the problem – no doubt a radical proposition in the South African political context.
Where are the power stations popping up left, right, and centre? Nowhere. The fact that this is not happening, that huge chunks of the national budget have not been ring fenced exclusively for power station construction, that departments like Sport and Recreation still exist and receive funding – not even to mention the glacial pace of privatisation and deregulation – seems to indicate that the government continues to believe that it has room to manoeuvre on load-shedding.
This misapprehension must be ended.
If it takes closing down the departments of Sport and Recreation, Arts and Culture, Science and Technology, or Higher Education, or shelving expensive vanity projects like the National Health Insurance, or slicing the public sector wage bill in half, so government can start taking real action to end rolling blackouts, then I think we should be eager, with the help of the courts, to take those steps. It should not be easy to implement load-shedding – it should be very difficult.
Catch-22
Perhaps my biggest gripe with Kenny’s article is that he embraces the proposition that government is the best vehicle to provide electricity to South Africa. In a previous article, he defended the lack of private enterprise in electricity supply. The state can supply electricity significantly more affordably and efficiently. I do not disagree.
However, my primary concern is not affordability or efficiency, but risk. The decentralisation effected by private enterprise mitigates risk.
My concern with Kenny’s argument is that he problematises the notion that there might exist a duty on government – in this context where he argues it is best placed to supply electricity – to in fact supply said electricity.
In other words, government may (Kenny does not, I think, necessarily advocate monopoly) have an electricity monopoly, and at the same time legal subjects should have no recourse to force government to provide electricity.
This, to me, seems misguided.
If we are to accept, even grudgingly, that we either need an electricity monopoly or that it is acceptable for it to exist, then we must at the same time, as an imperative, insist that that monopoly must be under an unequivocal obligation to provide its product.
It is only if we accept – as I believe we must – that electricity must be the responsibility of society and the market, that we can and should comfortably relieve government of an obligation to provide it.
But if we are forced to be reliant on the state, then the state must be forced to provide.
Technicality versus policy
If approached purely from a technical perspective, it might be true that the judgment is ‘dangerous’ and could lead to more harm. I do not deny Kenny’s expert insight into this aspect.
On this approach one asks what the problem is (a lack of electricity generation), what the interim solution is (load-shedding), and concludes that interference with the interim solution is harmful.
But a policy approach adds considerations at the margins. While the problem is a lack of electricity generation, the cause of this problem was monopoly subject to the political decision-making of inept and/or corrupt politicians and bureaucrats. And while the interim solution might remain the same (load-shedding), the persistence of this ‘interim’ solution over almost two decades, with negligible action taken to in fact bring the problem to an end, means the conclusion of non-interference with this interim solution is not that simple. Government should have used load-shedding on an interim basis while it solved the generation problem. Instead, it never elected to solve the generation problem and has simply escalated load-shedding, thereby shifting the burden onto individuals and companies instead of doing its duty.
The technical perspective therefore falls away, to a degree, because of what I submit is at some level a malicious attitude by government.
Deference
Judge Davis’ judgment does remain quite deferential, albeit less so than his colleagues.
The Court does not force Eskom to grant load-shedding exemptions to hospitals, schools, or police stations. Instead, the Court gives government a wide discretion to find alternative means of securing uninterrupted power supply. Judge Davis writes that ‘any compelling order should be couched wide enough to provide for different permutations and also be wide enough to leave it in the hands of the DPE Minister as to how he is going to rectify the situation.’ This is hardly reckless or irresponsible.
Thousands upon thousands of South Africans have spent their hard-earned, heavily taxed income to install solar systems, batteries, or generators that keep the essential features of their houses powered during times of load-shedding. If there remain any police stations, schools, or hospitals that do not have at least some such capability, then it is time for the government to have it installed. Furthermore, the government can perhaps finally ask the Nuclear Energy Corporation to complete its research into modular nuclear reactors and potentially have these installed in key areas to power hospitals schools. (The collective gasp by the anti-nuclear crowd is noted!)
Kenny notes that ‘large amounts of electricity for hospitals, day and night, from wind, solar and batteries would be prohibitively expensive and completely impractical.’ I am inclined to agree with him. But the fact is that these options are available, as are generators. Government is not doing much to solve the overarching problem of load-shedding by building new power stations, so the least it can do is ensure the lights are on around hospitals.
Load-shedding should be regarded as unconstitutional
In summary, load-shedding should be regarded as unconstitutional per se for the following reasons:
- The Constitution does not empower the government to establish or maintain monopolies on any goods or services, outside of things like police and military defence.
- The government, through conscious political decision-making, has forced South Africans to be dependent upon it exclusively for their electricity needs.
- The government, despite its self-bequeathed monopoly, has failed to provide the service upon which it has forced South Africans to be dependent.
- Furthermore, the government has failed to take obvious steps to end the electricity crisis it has created.
- Instead, the government has come to permanently rely on what is meant to be an interim, mitigatory measure, which measure causes immense harm to the vital interests of South Africans.
- Utilising the interim, mitigatory measure on a permanent basis as a stand-in for actually solving the problem is not indicative of government acting diligently, as the Constitution requires.
- Nor can it be said that government is ‘trying’, in good faith, to solve the problem, when it is actively spending its limited revenue on less pressing budget items.
As a result, the courts would be right to signal, decisively, to the government, that it may no longer liberally utilise the interim, mitigatory measure of load-shedding as a way to duck its responsibility to solve a crisis it has created. While Judge Davis’ judgment is praiseworthy in this respect, it still did not go far enough.
Solving the problem
Kenny’s solution to all of this is simply for Eskom to be better, and for it to be allowed to be better, for instance by disregarding race and political considerations. I agree with all of this, but this to me does not appear as a fundamental solution. For as long as Eskom is a monopoly and subject to the control of the state – as it will remain if it is a monopoly – then it will be exposed to political considerations. This in turn, exposes South Africans perpetually to centralised risk, where our vital interests – so interwoven with electricity supply – will always depend on the competence and integrity of South Africa’s political class.
This is not a risk we should continue to take. The speedy privatisation, deregulation, and – in general – liberalisation of the electricity sector, is an imperative.
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