Introduction

On 1 March 2023, South Africa’s state-owned power utility Eskom reached the 100-year mark. Instead of celebrations, the day passed under the dark cloud of measures published a few days earlier following the Government’s sudden awareness that the people of South Africa were fed-up with its complacency about electricity shortages and rolling blackouts, quaintly termed ‘load shedding’, and their devastating reach into every nook and cranny of society.

The national state of disaster regulations of 27 February 2023 were the latest link in a chain of events that started in July 2022 when President Cyril Ramaphosa addressed the nation, acknowledged the calamitous extent of the electricity crisis, announced an Energy Action Plan (EAP) and established a National Energy Crisis Committee (NECOM) to oversee the implementation of the EAP.

Towards the end of January 2023, six months after its establishment, the NECOM published a seven-page Energy Action Plan – six month update. In this easy-to-read booklet the NECOM reported progress on the five critical interventions forming the core of the EAP. The update included a time-lined ‘road map to end load shedding’. Convincingly, it created the impression of coordinated and effective action.

While the NECOM was doing its work, but with continuing and at times worsening ‘load shedding’, calls for more drastic action grew louder. At its five-yearly elective conference in mid-December 2022, the ruling African National Congress joined in and decided that a state of disaster should be declared. As was expected, during his annual State of the Nation address on 9 February 2023, President Ramaphosa announced that the electricity crisis had been classified as a disaster and that a national state of disaster was about to be declared in terms of the Disaster Management Act (‘the Act’). Eighteen days later the set of disaster regulations was published.

President Ramaphosa went a step further than declaring the state of disaster. He appointed a Minister of Electricity in his office to oversee the Government’s response to the electricity crisis. In interviews shortly after his appointment as the Minister, Dr Kgosientso Ramakgopa indicated that he would resort to the disaster management regulations only when existing measures fall short. (There was speculation that the position of Minister of Electricity was created by the President to cut the knot of contestation between the Minister of Energy – outspokenly in favour of maintaining coal as the preferred source of electricity – and the Minister of Public Enterprises, who supports Eskom’s plans for a just energy transition from fossil fuels to ‘green’ energy. How this dynamic will play out the future will tell.)

Meanwhile, several political parties, labour unions and civil society organisations have started legal proceedings or showed an intention to challenge the Government and Eskom’s handling of the electricity crisis and the declaration of the state of disaster, including the regulations.^[1]

Reaction to the regulations ranged from fears of sweeping powers for ministers and others to scepticism about the need for more powers and thus for a ‘declared’ state of disaster. While lawyers and ultimately the courts will decide on the validity of the declaration, opinions will differ on whether the declared state of disaster was necessary. A full reading of the Act raises doubts about its applicability to South Africa’s electricity crisis. Independent of this, a question mark hangs over the validity of the regulations issued in terms of the Act. The key principle is that the regulations may not stray beyond the boundaries of the Act.

The regulations

For context, section 26 of the Act requires the ‘national executive’ (the Cabinet, in other words), to co-ordinate and manage national disasters ‘irrespective of whether a national state of disaster has been declared in terms of section 27’. The implication is clear: the Government does not need a declared state of disaster to co-ordinate and manage disasters. It is a normal part of its job. It is only when existing measures at its disposal are inadequate that a state of disaster may be declared. Even then, any regulations or ‘directions’ only ‘augment’ existing legislation and ‘contingency arrangements.’ This is an important qualifier of the regulations and ‘directions’ that may be issued: they do not replace or supersede existing legislation and arrangements.

The regulations were issued under section 27(2) of the Act and include ‘definitions’ (regulation 1); ‘objects’ (regulation 2); ‘cooperation between spheres of government’ (regulation 3); ‘general measures to address the effects of the disaster and prevent escalation of severe electricity supply constraint’ (regulation 4); ‘authority to issue directions’ (regulation 5); ‘emergency procurement procedures’ (regulation 6); and ‘commencement’ (regulation 7 – in this case 27 February 2023 when the regulations were published in the Government Gazette).

A detailed analysis of the regulations is beyond the scope of this piece. What can be said, is that more than one of them may not withstand legal scrutiny. Some of the definitions in regulation 1 are inappropriately formulated, carelessly copied from other legislation or simply unnecessary (especially if the word or expression does not appear elsewhere in the regulations). Regulation 2 uses words in abundance to capture one simple object: to arm the Government with ‘augmenting’ powers should existing ones fall short to address the rolling blackouts. Arguably, the problem with Eskom and electricity generation is not a lack of legislative powers or contingency measures, but overbearing political interference and a host of ‘systemic issues’ that must be addressed, otherwise ‘we are not going to be able to get out of the challenge we are facing’, in the words of an Eskom board member.’^[2]

The brief regulation 3 requires no more than the observation that if the three ‘spheres’ of government (national, provincial and local) had paid more than lip service over the years to the ‘cooperative government’ injunction in section 41 of the South African Constitution and the Intergovernmental Relations Framework Act of 2005, the electricity calamity may well have been averted.

Regulation 4 demands of ‘all institutions within national, provincial and local spheres of government’ for the duration of the state of disaster and ‘within their available resources’ to take energy saving measures; keep health facilities and other ‘essential infrastructure’ going; release and mobilise a list of available resources (the inclusion here of ‘ships’ predictably gave rise to the suspicion that the controversial Karpowerships – gas-burning electricity-generating vessels – were contemplated); making personnel available for emergency services; and provide funds (presumably for the aforementioned purposes).

Regulation 5(1) authorises cabinet ministers to issue ‘directions’ on a long list of matters. At a glance, the list creates the impression of wide-ranging powers: expressions such as ‘granting of exemptions’, ‘remove impediments’, ‘streamlining and expediting application and decision-making procedures’ for regulatory and environmental processes, and excluding certain operations from environmental and other legislation, will raise eyebrows. However, some of the provisions have ‘internal limitations’ and caveats. Moreover, no direction can suspend or circumvent existing legislation or allow blanket authorisations. In practical terms this means that an application in terms of regulation 5(1)(i) to exempt repairs to the much-publicised flue-gas desulphurisation duct that collapsed under suspicious circumstances at Eskom’s ill-fated Kusile power station in October 2022 must still comply with, for example, the National Environment Management: Air Quality Act of 2004. Ministers will be well-advised to think very carefully about their ‘directions’. Regulation 5 have the makings of a legal minefield.

The large-scale fraud under the cover of emergency procurement during the Covid-19 pandemic is still a very fresh memory in South Africa. This explains regulation 6 that makes all emergency procurement for the electricity state of disaster subject to the Public Finance Management Act of 1999 and the Municipal Finance Management Act of 2003 and their emergency procurement regulations. The intention is clear: no minister may issue ‘directions’ under the regulations for emergency procurement. The regulation also requires the Auditor General to perform ‘real time’ audits of emergency procurement during the state of disaster. Accounting officers must take steps to counter corruption during emergency procurement. Finally, all emergency procurement must be published and reported to Parliament within a month, with an explanation for the deviation from normal procurement procedures. Time will tell whether these measures will be effective in preventing a recurrence of the unspeakable plundering of public funds during the Covid-19 pandemic.

Conclusion

A careful reading of the Disaster Management Act suggests that the kind of disaster it aims to address is a natural or ‘physical’ calamity, something unexpected that should be dealt with immediately. For this reason the declaration of a state of disaster lapses after three months, after which it may be extend for only one month at a time (section 27(5)). In the present case the disaster was visibly a long time in the making and it was known all along that it would take more than a year to mitigate. The impressive array of actions, initiatives, interventions and developments by the public and private sector to address the shortage of electricity also pours cold water on the need for a declared state of disaster. (One of the latest private sector initiatives is the Resource Mobilisation Fund that was launched on 9 March 2023 in support of the implementation of the EAP.^[3] The Fund managed to raise its first R100 million in four months.)

As things stand, there are too many initiatives aimed at generating more electricity and too little indication that Eskom is headed for a total blackout – a grid collapse – to be persuaded that the Government’s forcing of the electricity crisis to fit the differently-purposed Disaster Management Act is a useful answer to the ‘disaster’.

---

^[1] One application was set down for hearing by a full bench of the Gauteng High Court on 20 March 2023: Phakamile Hlubi-Majola ‘UDM, NUMSA and others head to court to stop loadshedding’ (13 February 2023) https://www.politicsweb.co.za/politics/udm-and-others-head-to-court-to-stop-loadshedding

^[2] Terence Creamer ‘NECOM outlines plan for adding and recovering 8 800 MW in 2023’ Engineering News (31 January 2023) https://www.engineeringnews.co.za/article/necom-outlines-plan-for-adding-and-recovering-8-800-mw-in-2023-2023-01-31/rep_id:4136

^[3] ‘Presidency welcomes launch of Resource Mobilisation Fund to support Energy Action Plan’ (9 March 2023) https://www.gov.za/speeches/presidency-welcomes-launch-resource-mobilisation-fund-support-energy-action-plan-9-mar