Wednesday, 1 March 2023 marked the centenary of South Africa’s state-owned electricity utility, Eskom. There was little cause for celebration. Instead, the day was marked by a set of disaster management regulations freshly published by the same cabinet minister who oversaw the South African Government’s response to the Covid-19 pandemic. If the consequences were not so devastating, Eskom’s descent into a state where it battles to ‘keep the lights on’ would bear all the hallmarks of a comedy of errors. A so-called state-owned company, with the Government as sole shareholder, and until recently burdened with a monopoly over power generation and transmission and partially over distribution, Eskom fell victim over the last 25 years to short-sighted and ill-directed decision-making, effectively disempowering the utility.

With ‘load shedding’ – the term for planned, rotational blackouts across the country to reduce power consumption to the level of Eskom’s heavily reduced generating capacity – increasing at times to 10 hours a day or more, and a populace growing ever more restive, the South African Government decided to use its powers under a law called the Disaster Management Act of 2002 (‘the Act’) to declare the electricity crisis a ‘national state of disaster’. The announcement, widely expected after it was called for by the ruling ANC at its five-yearly conference in December 2002, was made on 9 February 2023 by the President, Mr Ramaphosa, during his annual ‘State of the Nation’ address.

Predictably, the publication of the electricity regulations was met with a flurry of comments, ranging from fears of sweeping powers for ministers and others to scepticism about the need for more powers and thus for a national state of disaster as such. Careful reading of the Act in its entirety already raises doubts about its applicability to the ongoing electricity crisis in South Africa. But even if the Act could be invoked, a superficial analysis of the regulations issued under the Act raises serious questions about their validity, as the following overview with some interspersed comments may show. The key principle to keep in mind is that the regulations may not stray beyond the boundaries of the Act.

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