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United Democratic Movement and Others v Eskom Holdings SOC Ltd and Others (1 December 2023) 

14 December 2023

The judgment of the High Court, Gauteng Division, Pretoria can be found here. 

  • Neutral citation: United Democratic Movement and Others v Eskom Holdings SOC Ltd and Others (005779/2023;003615/2023;022464/2023) [2023] ZAGPPHC 1949 (1 December 2023) 
  • Case number: 005779/2023 
  • Coram: Judges Davis, Collis and Nyathi. 
  • Date delivered: 1 December 2023  
  • Outcome:   The court held that the State’s failure to take certain actions which led to the current electricity crisis amounted to a violation of Constitutional rights. The court directed the Minister of Electricity to ensure that there is sufficient supply of electricity to all public health establishments, public schools and police stations by the end of January 2024.

From the judgment of Davis J:

If courts could end load shedding, they would but they cannot and it is not their function.  The relief sought in three consolidated applications centre around this conundrum. There are two themes – the first is the relief to be granted pursuant to the failure by organs of state to provide consistent provision of electricity.  Whilst the Constitution does not expressly provide for a right to electricity, it guarantees the right to other aspects of life which cannot be provided or function properly without electricity such as the right to proper healthcare (which sometimes even impacts on the right to life), the right to education, the right to water and sanitation and the right to be protected by the South African Police Services.  The second theme centres around a review application launched in order to determine whether the tariffs whereby Eskom recovers revenue sufficient to cover its costs of electricity generation and distribution, were correctly determined by NERSA.  The court found that the preventable failure to provide electricity amounted to Constitutional breaches and ordered the Minister of Electricity to take certain remedial steps in respect of schools, hospitals and police stations.  The reviews against the NERSA tariff determination were refused.”

Case Summary: 

This matter is a combination of three applications brought by a number of parties including the United Democratic Movement (UDM), Democratic Alliance (DA) and the South African Local Government Association (SALGA).  

The applicants launched these cases against the State for breach of constitutional rights due to the State’s failure to stop loadshedding. The State respondents were Eskom Holdings, Minister of Public Enterprises, Minister of Mineral Resources and Energy and various other government officials involved in the generation, provision, regulation and distribution of electricity.  

The primary issue in this matter is whether the State’s failure to prevent loadshedding and failure to remedy the ongoing energy crisis is a violation of constitutional rights. Additionally, the Court had to consider the appropriate relief to remedy the breach.  

Both the UDM and DA argued that the State respondents’ failure to provide electricity has detrimental impacts on several constitutionally protected rights. In particular, the UDM argued that loadshedding in hospitals, police stations and schools leads to violation of everyone’s right to dignity, right to life, right to education, right to health care, food, water, and social security. The applicants asked for an order declaring that the State respondents’ decision to implement loadshedding is inconsistent with the Constitution and invalid. Further to this, the DA sought an order directing the State respondents to appoint a Special Master to report to court on the steps that the state will take to remedy loadshedding and the energy crisis.  

The State respondents did not oppose or agree with the view that continued loadshedding constitutes a breach of constitutional rights. However, they argued against the declaratory order sought by the DA, compelling them to take steps to remedy loadshedding. They believed that such an order was not appropriate in this case.  

Despite the objections by the respondents, the High Court considered public policy, justice and the fact of continued existence of an infringement of constitutional rights and concluded that a declaratory order is appropriate in this case. The court held that the state’s failure to stop loadshedding is a violation of constitutional rights, and made the following order:  

 “The Minister of Electricity is ordered to take all reasonable steps by no later than 31 January 2024, whether in conjunction with Eskom and 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 loadshedding to the following institutions and/or facilities: 

  • All “public health establishments” as defined in the National Health Act 61 of 2003, including all hospitals, clinics, and other establishments or facilities; 

This judgment expressly confirmed that the state’s failure to take actions to prevent the current electricity crisis constituted an unjustified breach of constitutional rights including the right to an environment that is not harmful to health or wellbeing.