Navigating the legal consequences of the sudden scramble for power

Earlier this year, the Gauteng High Court handed down a judgement in the case of UDM & Others v Eskom Holdings SOC Ltd & Others, in which it ordered the South African Government to ensure that all government hospitals, clinics, schools and police stations are provided with an uninterrupted electricity supply.

In handing down its decision, the full bench ordered the Minister of Public Enterprises, Pravin Gordhan, to take all reasonable steps to ensure that some 85 police stations, 93 hospitals and an estimated 23000 schools are provided with an uninterrupted power supply within 60 days of the order. 

Many South Africans were most concerned to note President Cyril Ramaphosa’s opposition to the application, that “none of the government respondents have a constitutional responsibility to supply electricity to the people of South Africa.”

Whilst in handing down this judgement, the Judiciary carried out its function to hold the Executive accountable for the protection of the public’s rights to healthcare, security, and education as enshrined in our Bill of Rights, one may wonder whether the Judiciary still possesses the necessary power to protect South Africans.  Can one really expect the South African Government, whose own Land Bank has defaulted on repayments of more than R18 billion since 2020, to ensure uninterrupted power is provided to essential public institutions?

It will come as no surprise to many taxpayers that rather than accepting their responsibility and complying with the order, Government has sought to appeal the Court’s judgment.

Once again, it has become the responsibility of ordinary citizens to ensure that their own power needs are met. This has led to a massive boom in alternative energy offerings, such as simple plug-and-play inverters, generators and even full-scale off-grid solutions for households and businesses alike.

These solutions carry risk and obligations which many of us are unaware of. Such risks include prejudicial terms of binding financing arrangements, insurance cover exclusions, potential contravention of various regulations and bi-laws, breach of obligations as land owners and the consequences of nuisance law. Given that this is largely unchartered territory, many people are unaware of the legal implications of their chosen solutions.

In the coming article series, we will identify the requirements of owning and using alternative energy supplies and provide guidance to assist in navigating the associated risks. We will advise on the rights of homeowners who wish to install generators or solar panels where their presiding body corporates or home-owners associations refuse to grant the requisite approvals; the responsibilities of landlords to provide their tenants with alternative energy sources in terms of long-standing commercial leases and the potential consequences of both doing so and not doing so. These are some of the aspects that our commercial litigation team have recently advised our clients on as we remain committed to ensuring our clients obtain the best possible outcome in the sudden scramble for power.