Legal Articles

Load shedding has become an unfortunate part of our daily lives in South Africa. While some make light of the situation and do their best to work around regular blackouts, others suffer serious loss because of it.

The question is, however, can Eskom be sued for load shedding and, if so, what does it take to win the case against them?

In this article, we shed some much-needed light around this matter.

What is Load Shedding and Why do We Have it?

Load shedding is the act of implementing scheduled interruptions of electricity supply to circumvent excess load on the generating plant.

This happens when electricity demand exceeds supply, threatening to destabilize the national power grid. In other words, Eskom implements black outs to ensure its customers will continue to have access to electricity in the future.

However, this does not come without consequence.

Is Load Shedding Illegal?

The South African Constitution does not provide specifically for a right to electricity. According to sections 152 and 153, municipalities are obligated to stive to provide basic municipal services to communities within available resources and in a sustainable manner.

A court case held in 2010 between Joseph & others v City of Johannesburg & others, the Constitutional Court found that the right to basic municipal services includes electricity.

Additionally, the following should be considered:

• Section 73(1)(a) of the Municipal Systems Act stipulates that municipal services must be provided in such a way that is conducive to the “prudent, economic, efficient, and effective use of available resources”
• Section 5 of the National Energy Act stipulates that appropriate measures must be taken to provide appropriate forms of energy to the citizens of South Africa at affordable prices to the availability of energy resources

Considering the above, it’s clear that citizens of South Africa have a right to electricity supplied by municipalities insofar as there are sufficient resources available.

However, the provisions discussed above place an obligation on municipalities but not on Eskom itself.

In another case against Eskom in 2017, the Court stated that: “as the Constitution recognises the doctrine of necessity, where Eskom lacks the generation capacity to supply the entire country, it is entitled to put in place load shedding arrangements on a temporary basis to avert the collapse of the grid.” However, the Court made it clear that when it comes to expenditure or convenience, the Constitution does not permit Eskom to disconnect municipalities deliberately.

In summary, according to the above proceedings, there is no absolute right to electricity at all times. Instead, the right only exists if there are sufficient resources available to provide electricity to Eskom customers.

Van Deventer & Van Deventer Incorporated – Civil Litigation Attorneys in South Africa

If you would like to gain further understanding of the legalities around load shedding in South Africa, please feel free to contact our attorneys.

We offer expert civil litigation services.