The Pretoria High Court this week dismissed applications by AfriForum and other businesses to have Eskom’s scheduled electricity interruptions to defaulting municipalities declared unconstitutional, confirming the parastatal’s right to do so.
“Astral, Bridgestone, AfriForum and Mediclinic had sought to prevent Eskom from using its constitutional right of scheduled interruptions in [the] Madibeng, Lekwa and Kamiesberg [municipalities] to recover overdue debt,” Eskom legal head Suzanne Daniels said in a statement.
The applicants’ contention, heard on May 2 and 3, was that Eskom’s conduct, in all the cases, is unconstitutional, unlawful and unreasonable and should accordingly be reviewed and set aside.
The applicants sought different relief against Eskom through declaratory orders stating that Eskom was not permitted to interrupt the supply of electricity to any local authority as a means to collect acknowledged debts owed to it. They also sought to interdict Eskom from exercising the power to interrupt electricity as a debt collection measures in respect of any local authority.
Further, the parties sought interdicts restraining Eskom from exercising such power without, in each instance, first obtaining an order of court authorising it to do so and orders reviewing and setting aside Eskom’s decision to interrupt electricity to the municipalities on constitutional and administrative law grounds.
The parties challenged the constitutionality of Section 21(5) of the Electricity Regulation Act and invited the court to read into the section a requirement of judicial pre-authorisation for the termination or reduction of the supply of electricity when employed as a means of debt collection.
Astral had, meanwhile, sought an order allowing it to make direct payments to Eskom. On the second day of the hearing, Eskom and Astral reached a settlement agreement in respect of the direct payment relief.
Eskom opposed all the relief sought on the other issues raised by the remaining applicants, arguing the mootness of all the cases and the legislative rights of Eskom to interrupt or terminate the electricity supply.
“This victory is a critical step in the sustainability of Eskom given the levels of indebtedness within the municipal sphere. As a key enabler of the economy, Eskom’s sustainability is vital for the development of our nation,” Daniels stated.