Pierre de Vos, Constitutionally Speaking – 10 December 2019
It is unclear whether the daily power cuts (which on Monday escalated to a previously unknown stage 6 – 3 power cuts a day of between 2½ and 4 hours each) should be blamed on systemic corruption, on incompetence and lack of skill at Eskom, on economic sabotage, on as yet unknown factors, or on some combination of the above. But these cuts do raise important questions about whether South Africans have a right to receive electricity uninterrupted, whether the continuing power cuts infringe on such a right, and whether courts can actually enforce such a right.
The South African Bill of Rights does not contain an explicit right for everyone to receive electricity. While the Bill of Rights guarantees for everyone the right to access housing, health care, food and water, it is silent on whether there is a duty on the state to provide everyone with uninterrupted access to electricity (or at least progressively to work towards the universal provision of uninterrupted access to electricity).
However, this is not the end of the matter. In 2009 the Constitutional Court – in the case of Joseph and Others v City of Johannesburg and Others – considered the question of whether individuals have a right to receive electricity after the tenants of a block of flats in Johannesburg (Ennerdale Mansions) approached the court to challenge the decision by City Power to disconnect electricity to the block of flats because the landlord was in arrears with his payments to City Power.
Although the case turned on matters of procedural fairness (including whether City Power was obliged to send all tenants pre-termination notices before disconnecting their power), the Court first had to determine whether the tenants had a right to receive electricity. Only if they had such a right would they also have a right to procedural fairness in matters relating to the termination of their service.
The tenants had argued that the right of access to adequate housing in section 26(1) of the Constitution included a right to have access to electricity. They argued that the termination of electricity supply constituted a “retrogressive measure” which violated the negative obligation to respect the right of access to adequate housing.
It is important to understand that rights in the Bill of Rights impose a negative obligation on the state, which is an obligation not to interfere with the existing enjoyment of a right (as was the case here).
If I publish my work on the internet I enjoy my right to freedom of expression, and the state would be violating its negative obligation if it prohibited me from continuing to publish my work on the internet. But, rights also impose a positive obligation on the state to take steps progressively to provide access to the right to an ever increasing number of people. If many people do not have access to a house, the state has a positive obligation to expand access to housing to more people, if necessary, by launching a house building programme.
If there is a right to receive electricity this right would therefore be infringed first, if those who already have access to electricity suddenly have their access throttled or cut off completely. If you suddenly have electricity for only 16 hours a day instead of 24 hours a day, this could violate the negative obligation on the state to respect the right to receive uninterrupted electricity.
Second, the right would be infringed when the state fails to take steps progressively to improve access to electricity for an ever expanding number of people. If the state did not build power stations, or did not allow more independent power producers to contribute to the grid, or if it did not lay cables and built substations, it could be argued that the state had violated its positive obligation to protect, promote and fulfil the right in question.
The argument that the right of access to housing includes a right to receive electricity at that house is more than plausible. In Government of the Republic of South Africa and Others v Grootboom and Others the Constitutional Court suggested that the obligation to provide access to housing may in some instances at least include an obligation to provide access to electricity, stating that:
The state’s obligation to provide access to adequate housing depends on context, and may differ from province to province, from city to city, from rural to urban areas and from person to person. Some may need access to land and no more; some may need access to land and building materials; some may need access to finance; some may need access to services such as water, sewage, electricity and roads.
However, while the Court in Joseph did not reject the argument that the right of access to housing included a right to receive electricity, it decided that it was not necessary to address the argument. This was because the Court in Joseph held that the Constitution created a “right” to receive electricity as a basic municipal service. The Court held that “municipalities are obliged to provide water and electricity to the residents in their area as a matter of public duty.”
Electricity is one of the most common and important basic municipal services and has become virtually indispensable, particularly in urban society.
This obligation was not one imposed by any right contained in the Bill of Rights, but was rather sourced in provisions of the Constitution dealing with local government (including section 152) and in legislative provisions.
Taken together, these provisions impose constitutional and statutory obligations on local government to provide basic municipal services, which include electricity. The applicants are entitled to receive these services. These rights and obligations have their basis in public law. Although, in contrast to water, there is no specific provision in respect of electricity in the Constitution, electricity is an important basic municipal service which local government is ordinarily obliged to provide.
At first glance the Joseph judgment would be of little help to anyone arguing that the state (and Eskom) are infringing on their right to receive electricity by not doing their job. While municipalities have a duty to provide electricity to consumers, it can only do so if Eskom generates and delivers the electricity to the municipality. This Eskom is currently unable or unwilling to do.
But municipalities or other stakeholders might use the Joseph judgment in another way. Municipalities might approach a court to order the Minister of Energy to grant municipalities the right to purchase solar and wind power directly from independent power producers.
This the Minister is entitled to do in terms of section 34 of the Electricity Regulation Act no 4 of 2006. Municipalities could argue that it has a constitutional duty to provide electricity to its residents and that the failure of the Minister is directly contributing to the inability of Municipalities to fulfil their constitutional obligations. Similarly, it could ask the court to order the Minister to speed up the issuing of more Independent Power Producer licences.
In theory, the argument raised (but not decided) in Joseph that the right to housing includes a right to receive electricity, could be dusted off again. One could approach a court and ask it to declare that the government in general and Eskom in particular have, through catastrophic incompetence or bad faith, breached its constitutional obligation not to take away or limit the existing enjoyment of the right to receive electricity.
The problem is that such a declaration by the court (or even an order by the court for the government and Eskom to bring an end to power cuts within a reasonable time) will be of no practical use. This is because no matter what the court may say, it will not change the fact that Eskom is unable to produce enough electricity to meet the minimum demands of the country. A court order or declaration of rights cannot change that.
It is important to remember that courts play an essential, but limited, role in a constitutional democracy. Courts cannot fix the systemic governance problems that beset a corrupt, heartless, captured state – just as courts cannot magically undo systemic racism, sexism and homophobia, or eradicate inequality.
The political process in South Africa is broken, which means that neither elections nor the system of checks and balances really manages to hold the government effectively accountable for fucking up Eskom and for fucking up all the other things it has fucked up. It is for this reason that many people turn to the courts in the hope that it will fix what appears (in the short term at least) unfixable. But the courts simply cannot (and ought not to) take over the job of the elected government. Judges are not trained to do that and are, in any event, not elected.
I am reminded of the words of former Chief Justice Ishmael Mahomed who explained the limited powers of judges in a speech at the first orientation course for new judges:
Unlike Parliament or the executive, the court does not have the power of the purse or the army or the police to execute its will. The superior courts and the Constitutional Court do not have a single soldier. They would be impotent to protect the Constitution if the agencies of the state which control the mighty physical and financial resources of the state refused to command those resources to enforce the orders of the courts. The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship.
This does not mean that courts in South Africa do not have real power and cannot try to move things in the right direction. Courts can declare invalid legislation that discriminates or that infringes on other rights. In cases like the present electricity crisis, courts could make specific orders that would force the government to take clear, concrete steps like issuing more licences to independent power producers and allowing municipalities to source electricity freely from such power producers.
But only the government can fix Eskom. The courts cannot. A scary thought indeed.