While there is wide enthusiasm and hope pinned on legal action to force Eskom and Public Enterprises Minister Pravin Gordhan to stop open shedding, legal experts are not hopeful, saying it is likely to be practically futile. Seven law firms acting on behalf of several organizations, political parties and individuals, have issued a letter of request, in the first step of a legal battle intended to see the burden stopped directly and, if not, a full explanation of why the government can not stop. Legal difficulties But a University of Pretoria (UP) senior lecturer in the Department of…
While there is wide enthusiasm and hope pinned on legal action to force Eskom and Public Enterprises Minister Pravin Gordhan to stop open shedding, legal experts are not hopeful, saying it is likely to be practically futile.
Seven law firms acting on behalf of several organizations, political parties and individuals, have issued a letter of request, in the first step of a legal battle intended to see the burden stopped directly and, if not, a full explanation of why the government can not stop.
Legal difficulties
But University of Pretoria (UP) senior lecturer in the Department of Procedural Law Dr Llewelyn Curlewis said that while the applicants could suggest ways in which Eskom could stop load shedding, the order could not be enforced.
READ ALSO: Law firms, political parties fight Eskom over load shedding
“… unless the applicants can come up with an alternative that the court can accept, they will have problems. So, they should not only [complain and make demands]they should also come with recommendations and should ask the court to force the government and Eskom to comply with whatever recommendations are recommended in the court process,” he said.
Curlewis said he advocated any action to put pressure on the government to remove the burden and that the courts were probably the most reliable and effective way to ensure that citizens’ sentiments were raised and brought to the attention of the government and the world.
A pointless exercise
However, he explained that the legal principle is that the judgment can only be enforced if the court can ensure the effective implementation of the order.
Curlewis said in theory, the court could grant the application, but the problem is to ensure that the government complies with the order to stop the burden shedding.
“Obviously, the only remedy in this situation in a civil court is contempt of court, by asking questions [Gordhan] or Eskom [CEO Andre De Ruyter] come and explain in court why he should not be held accountable and in contempt of court,” he said.
Curlewis said that Gordhan and De Ruyter were acting in their official capacity, on behalf of their respective institutions, and that no court would imprison them because there was nothing they could do personally about the situation.
“No one can solve the problem. We will be able to see the application in court and even in favor of the applicant, but how will we effectively give effect to the court? They have a contract with citizens to provide services in terms of the constitution. It is fair and good, and I agree, but then go to court, win, then what? Are we going to put everyone in the cabinet in jail?” said.
The government must defend the burden
Constitutional law expert and chief executive officer at Tumbo Scott Incorporated, Deborah Mutemwa-Tumbo, said in opposition to the application, the government must justify the load shedding, which she said was unconstitutional.
He argued that the government must, until it is considered a limitation of rights, to prove in court that the reduction of the burden is reasonable, rational, and a legitimate government goal.
READ ALSO: ‘Choose between buying food or electricity’ – DA calls for ban against Nersa tariff hike
“If, for example, it can be proven that the government can achieve its goals in a less restrictive way, the government can find itself on the wrong side of the legal battle. In this case, it is also important that the respondent lays out a good and proper justification for open-shedding. But at this stage, this is mostly speculation,” he said.
Mutemwa-Tumbo explained that the main purpose of the court challenge is for the court to declare that load shedding is illegal, on the premise that access to electricity is a human right.
He said burden reduction, whether seen as government policy or a restriction on human rights, could be challenged in court.
The government, Mutemwa-Tumbo said, must meet certain criteria in order for the court to find that the discharge of the burden is rational, reasonable, and a legitimate government objective, hence constitutional.
“There have been many cases in the past when the restriction of rights through government policy has been challenged based on the principle of legality, and the courts have found the government. I’m not saying it will happen here, but it’s possible,” he said.
According to Mutemwa-Tumbo, if the application is successful, it means that the removal of the burden will be declared unconstitutional, unreasonable, or applicable in an open and democratic society.
“… the implication is that the reduction of the burden must be stopped by the government. This, however, will not be immediate because, said the court finds in favor of the applicant, the court usually gives the respondent time to implement an alternative. So even if successful, the application will not immediately obtain effect,” she said.
NOW READING: Permanent stage 4 load shedding in 2023 is possible