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Eskom not constitutionally obliged to provide power - judge

Jan 04 2017 11:34
Lameez Omarjee and Mpho Raborife

Pretoria – South Africa's constitution does not oblige Eskom to provide electricity to ratepayers, the North Gauteng High Court heard on Wednesday.

Judge Hans Fabricius has heard an urgent application submitted by civil rights organisation AfriForum in a bid to prevent the power utility from cutting power to the municipalities this week. He is yet to make a ruling.

These municipalities are Thembelihle (Northern Cape), Moqhaka (Free State), Mailonyana (Free State), Nkentoana (Free State), Mantsopa (Free State), Tokologo (Free State), Nala (Free State) and Dihlabeng (Free State).

READ: Judge to determine urgency of bid to stop Eskom cutting power

There is no “constitutional obligation” that the consumer is entitled to electricity from Eskom, said Fabricius. “[You are ] entitled to electricity from the municipality, if you pay your rates. Nowhere does it say you are entitled to electricity from Eskom.”

In his introductory statement, Fabricius noted that there was a “misapprehension” among the public about the intention of Eskom, which is “aimed at the innocent consumers who will suffer unnecessarily”. “It may not be so,” said Fabricius.

He said the idea that the general public will be “punished” is not correct, and that Eskom was simply fulfilling its obligations to collect debt in terms of the Public Finance Act. This was in response to AfriForum’s  application, which argued that law-abiding ratepayers should not be punished for their municipalities’ failures to pay Eskom its outstanding funds.

He highlighted that Eskom is crucial to the greater South African economy and neighbouring states. The power utility therefore has a duty to consider economic consequences.

Municipalities have a statutory duty to deliver electricity to consumers, according to the constitution, added Fabricius. According to the agreement between Eskom and municipalities, Eskom is obliged to supply electricity to municipalities which pay for it. In turn, municipalities sell electricity to consumers at an increased rate and use the revenue to provide other services.

Eskom does not have an immediate obligation to ratepayers; however, municipalities do. Fabricius asked AfriForum’s legal team why municipalities can’t bring the application to the court directly.

Fabricius added that ratepayers who are not satisfied with service can respond through democratic municipal elections, such as those held last year. Alternatively, they can approach the local board and declare that rates have been paid but electricity has been illegally or unfairly cut off.

AfriForum also argued that Eskom should hold off on cutting power supply as there is still another outstanding matter to be settled. The organisation is challenging Eskom’s authority to cut power supply to municipalities, with this case scheduled to be heard in March.

Eskom argued that AfriForum's application is not urgent as it published a notice of its intent to cut supply to the eight municipalities on November 17. AfriForum only submitted its interdict on December 29, giving Eskom a “very restricted timeline” to respond.

ALSO READ: Municipal debt continues to pull Eskom down

Fin24 previously reported that municipalities owe Eskom R5.6bn, as at September 30. The top 20 defaulting municipalities owed R4.3bn or 76% of the total arrear municipal debt. Eskom signed payment agreements with 50 defaulting municipalities. Of the top 20 municipalities, 15 are included.

Fabricius noted that Eskom’s notice to cut power supply did not simply “come out of the blue”. In turn, Eskom has been trying to settle “billions” in debt from municipalities since 2011. “A few billion is involved - not a million, a billion,” said Fabricius.

AfriForum added that Eskom could turn to alternative mechanisms to settle debt such as National Treasury. Fabricius said that Eskom has already done that and received “billions”, as have other organs of state such as South African Airways. 

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