Trade union Solidarity on February 14, during a media conference, shared details of its litigation about the recent declaration of a State of Disaster over the electricity crisis.

The matter is due to be heard in the Pretoria High Court on March 14.

In its application, Solidarity argues that, among other things, the electricity crisis does not meet the definition of a disaster in terms of the relevant legislation; that existing legislation can adequately manage the crisis; that the declaration of a State of Disaster does not serve a clear purpose; and that there was improper political interference in declaring the disaster.

“The government itself is the cause of the electricity disaster and it cannot declare itself a disaster, thereby obtaining extraordinary powers to address the disaster. Disaster legislation is not meant for government failure.

“We do not have short memories either. We remember the abuse of power during the Covid-19 State of Disaster, and how disaster funds were looted. A State of Disaster to deal with the electricity crisis is a disaster,” Solidarity CE Dr Dirk Hermann said at the briefing.

According to Solidarity, a State of Disaster is a state of exception and a process that is in conflict with normal democracy.

Therefore, it was emphasised that extreme caution must be exercised when dealing with it.

The union said a State of Disaster is intended as a temporary intervention only and should be used only if no other instrument is available to deal with it. This means that if another legislative instrument is available to deal with this state of exception, it must be used.

The union said there are plenty of other instruments available to government in its toolbox to deal with the situation and, therefore, by-passing these with the State of Disaster is not a rational move.

Solidarity reiterates its view that there definitely is an electricity crisis, and moreover, that drastic steps are required to deal with this. However, it averred that government has lacked the political will to mitigate this, and that addressing the situation requires doing the right thing, not implementing a State of Disaster which would exacerbate the crisis.

Hermann averred that all of the measures announced in President Cyril Ramaphosa’s State of the Nation Address on February 9 could be implemented by using other statutory instruments.

“If other instruments do exist, disaster legislation does not apply,” he emphasised.

“If this State of Disaster is allowed to continue, a dangerous precedent will be set. This could mean that South Africa will face a future of being a disaster democracy.

“Government failures, such as failure to deliver water and sewerage services, failing municipalities, the implosion of infrastructure and other problems can then also be managed by bypassing normal democratic processes by declaring a state of disaster. That was never the intention of disaster management legislation,” Hermann outlined.

Solidarity posited that government had a particularly poor record when it comes to disaster management.

“During the Covid-19 pandemic the State of Disaster led to an absurd abuse of power such as fines imposed for weeding a sidewalk, the police making people jump like frogs, imposing a ban on buying flip-flops and warm food, the closing of beaches and banning cigarettes, together with so many other abuses. A total of 411 000 South Africans were arrested for breaking Covid-19 state of disaster rules,” Hermann outlined.

“In addition to these absurdities, Covid-19 emergency funds became a source for looting. Dozens of companies have been implicated in fraud related to the Covid-19 state of disaster. Unlawful deals worth billions were made to procure protective clothing. The Auditor-General issued a damning report on the abuse of funds and poor management during the KwaZulu-Natal flood disaster last year,” he added.

Solidarity contends that this precedent demonstrates that disaster funds are likely to be looted during the State of Disaster for electricity as well.