Honourable Minister: Public Enterprises 1st Floor

Minister Pravin Jamnadas Gordhan 83 Central Street

80 Hamilton Street Houghton
2198
Arcadia PO Box 55045
Pretoria Northlands 2116
Tel: +27 11 483-2387/483-0476
0007 Fax: +27 11 728 - 0145
Direct e-mail: eric@mabuzas.co.za
Email: ministry@dpe.gov.za
georgina.sylvester@dpe.gov.za

The Chief Executive Officer (“CEO”)

Eskom
Mr Andre De Ruyter
Megawatt Park
Maxwell Drive
Sunninghill
Sandton
PO Box 1091
Johannesburg 2001

Email: andre.deruyter@eskom.co.za
MediaDesk@eskmo.co.za
customerservices@eskom.co.za
Your Ref:
Our Ref: Mr ET Mabuza/Mr GM Yeko/Ms IF Mndebele
Date: Monday, January 16, 2023

Dear Honourable Minister and CEO,

Breach of obligation to provide electricity

1. The above matter and persistent interruption of the nation’s electricity supply bear
reference.

2. This letter is being addressed by the following law firms:

2.1. Mabuza Attorneys;

2.2. Buthelezi Vilakazi Inc;

Eric T Mabuza B.Proc (Unin) LLB (Wits) Senior Associates: Zondiwe Longwe LLB (Wits) Thomas Sibuyi LLB (UNISA) LLM (UNISA)

Mzuphela GM Yeko B.Proc (UNITRA) Associate: Itumeleng F Mndebele LLB (UNISA)

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2.3. Makangela Mtungani Inc;

2.4. Mketsu & Associates Inc;

2.5. Mphahlele & Masipa Inc;

2.6. Madlanga & Partners Inc; and

2.7. Ntanga Nkuhlu Inc. Attorneys.

3. As the above-named law firms, we are instructed to demand that the supply of
electricity is stabilised forthwith and in so doing act for the following clients:

3.1. General Bantu Holomisa who is the president of the United Democratic
Movement (the “UDM”), and a member of Parliament. The UDM is a political
party in terms of section 19(1)(a) of the Constitution, and registered with the
Independent Electoral Commission in terms of the relevant provisions of the
Electoral Commission Act, 51 of 1996. The UDM will be represented in any
contemplated litigation by its President, General Bantu Holomisa.

3.2. Mr Mmusi Maimane who is the founder of the Build One South Africa
(“BOSA”). BOSA is a registered political party. Its purpose is to unite the
nation through advocacy and other mechanisms to ensure state
accountability, the enforcement of democratic governance principles and the
achievement of service delivery goals. It will be represented in any
contemplated litigation proceedings by Mr Mmusi Maimane, its leader.

3.3. Inkatha Freedom Party. The IFP is a political party in terms of section
19(1)(a) of the Constitution, and registered with the Independent Electoral
Commission in terms of the relevant provisions of the Electoral Commission
Act, 51 of 1996. The IFP will be represented in any contemplated litigation
by its Secretary General, Mr Siphosethu Ngcobo.

3.4. National Union of Metalworkers of South Africa. NUMSA is the biggest single
trade union in South Africa with more than 338,000 members. It will be
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represented in any contemplated litigation by its General Secretary, Mr Irvin

Jim. NUMSA organises specifically at Eskom.

3.5. Mr Lukhona Mnguni, an adult male policy analyst.

3.6. Mr Phiwe Mehlo, who is the owner of Ikasi Farming. Ikasi Farming is a small-
scale broiler business farm and a supplier to hawkers in East London. Ikasi
Farming will be represented in any contemplated litigation by its owner Mr
Mehlo.

3.7. Ntsikie Mgayiya Real Estate (Pty) Ltd, a real estate agency, who will be
represented in any contemplated litigation by its owner and founder, Ms
Mgayiya.

3.8. The Circle, which is a voluntary active citizenship organisation with members
in Cape Town, Eastern Cape, Gauteng and KwaZulu Natal. The livelihoods
of the members of the Circle and the profitability and sustainability of their
businesses have been affected by the rolling blackouts. The Circle will be
represented in contemplated litigation by its CEO, Ms Zibuyisile Sibiya.

3.9. Mastered Seed Foundation, a Christian family foundation registered as a

Non-profit organization. Mastered Seed Foundation will be represented in
any contemplated litigation by its Chairperson, Ms Ndivhuwo Rambanduli.

3.10. Ms Zintle Ncalo, the director of Fula Property Investment, a printing and
branding company operating its business at Cumberland Street, Mthatha, in
the Eastern Cape Province. Fula Property Investment will be represented in
any contemplated litigation by its director, Ms Ncalo.

4. Persistent, rolling blackouts have dogged the nation’s electricity supply since
approximately the second half of 2007. It continues to the present, with many
reasons being furnished for the continuous, protracted shutdowns in supply. The
impact has been, among others, an economic noose around South Africa’s growth
prospects.
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5. Notwithstanding the debilitating impact of load shedding, apparent to the state since
2007, energy sector reforms have been slow, if not non-existent. All the while the
energy crisis tears through the South African economy and, as reported by
Moneyweb SA, pushes unemployment through the roof, crashes tax generation,
shrinks the money supply and destroys collateral in the banking system.

6. As a result, the South African economy is predicted to show a radical decline, with
the real prospect that load shedding may increase to as high as Stage 8, interrupting
the electricity supply for up to 12 hours per day. At present Stage 6 blackouts have
been implemented nationally, with Eskom shedding 6000 megawatts (MW) of
electricity, leaving hospitals, schools, businesses, and households without a stable
electricity supply for 8 to 12 hours per day. And as load shedding continues to
contribute significantly to the failing economy, it is the most vulnerable among us
who are most affected, including school children, patients in public hospitals, small
business enterprises in the tourism and other sectors, and the farming sector to
mention but a few.

7. Continuous blackouts have become so commonplace and their damaging impact so

ubiquitous that, electricity, once a reasonably accessible commodity, is now the
preserve of the rich. It cannot be disputed that the state, as represented by the
Ministry of Public Enterprises and Eskom, has not taken any reasonable measures
to provide vulnerable South Africans with adequate and reliable energy, whether
electricity or any other alternative forms of energy. In so doing the state has
contravened its duty to provide energy as imposed by the Constitution, national
legislation, and contract.

8. Moreover, since energy drives the modern world and underpins every geopolitical
and socio-economic issue, South Africans have a legitimate expectation to demand
that power is available, affordable, reliable and where appropriate, clean. It is of
course trite that the biggest challenge in meeting these demands is scale and that
the only way to counter the problems associated with the amount of energy the
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nation demands is for the state – Eskom and the Ministry – to efficiently manage the
electrical grid.

9. The state has a constitutional obligation to ensure that power generation,

transmission and delivery accords with the reasonable consumption demands of the
general public. It has failed to responsibly manage the grid, resulting in material
breaches of the constitutional rights set out hereunder.

The Right of Freedom of Trade, Occupation and Profession

10. Section 22 of the Constitution guarantees to every citizen the right to choose their
trade, occupation, or profession freely subject only to regulation by law. Our clients
report that many small businesses have buckled under the strain of load shedding.
They report that these entities, often miss deadlines; put up with inappropriate
conditions such as stock decline and wastage, and have to deal with the
disappointment of their customers when they have to turn them away as they have
no power to accommodate them.

11. Some of the biggest problems occasioned by load shedding and leading to the
closure of SMMEs include:

11.1. Lacking WiFi - WiFi is a basic need in businesses, schools, and homes.
When businesses cannot use the internet, they are not able to log onto their
networks, stopping them from accessing emails or other digital items, as well
as online banking and basic communications. Mobile networks are also
affected by load shedding, so there is no escaping time offline.

11.2. Staff morale - Staff morale and productivity are prejudicially affected by load
shedding. This effects staff retention and inter-office communication, where
a SMME has more than one outlet.

11.3. ATMs - Retail and restaurants are impacted greatly, since most ATMs are
out of order during load shedding, particularly those in malls and shopping
centres. This is an inconvenience for customers, which prevents them from
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shopping. Some customers report avoiding certain malls or shopping centres

when they believe load shedding may occur.

11.4. Loss of planning - Whilst load shedding generally operates on a schedule,

legitimate concerns on the impact of emergency and unplanned outages
remains. Businesses report losing their ability to forecast and plan accurately
for the months and years ahead, which make staff and client acquisition and
retention that much more difficult.

11.5. Inability to trade - Restaurants and stores are reliant on electricity,

particularly if they are placed in malls that do not have the best natural
lighting. Power outages force many stores to shut their doors during load
shedding leading to a loss in sales and turnover.

11.6. Damaged equipment - Power surges are common, and usually, an

increased flow of current leads to a short socket or damage to electrical
appliances and gear.

11.7. Traffic - In any city, traffic is already bad, but when there is load shedding
and the robots stop working, it becomes worse. This leads to missed
meetings, time loss, delayed deliveries, and more potential for road
accidents.

11.8. Security - Security concerns are pervasive and include, shoplifting, theft,
compromised digital security systems, and the shutdown of firewalls.

These are some of the consequences for security systems. As security systems turn
off when the power does, it leaves businesses vulnerable to all sorts of attacks, and
has even caused businesses to get more insurance coverage.

12. Small business report that load shedding is tough on their operations and can be
mitigated only by long-term solutions such as the installation of solar panels, and
generators, devices which they can ill afford. In the face of these constraints many
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SMMEs are left with little option but to close their doors with others facing the same
looming prospect.

13. We are instructed that the prejudice is due to only to the unreliable electricity supply
and the protracted power outages occasioned by the ever increasing number of
hours per day that they are left without power.

The Right to Education

14. The right to education is entrenched in section 29 of the Constitution, with section
29(1)(a) guaranteeing to everyone “the right to a basic education, including adult
basic education”.

15. Load shedding is disruptive to teaching and learning. It has been reported that some
schools have not been constructed in a manner that permits the flow of natural light
into the classroom. Moreover, many schools do not have alternative electricity
generation and learners are left in darkness for the duration of their schooling day.

16. On 2 October 2022, the spokesperson for the Department of Basic Education, Elijah
Mhlanga is reported as having acknowledged that regular load shedding is
negatively impacting the basic education sector. He stated that electricity is needed
for teaching and learning, and this was particularly the case with schools of
specialisation where equipment is needed during class time. He went on that
electricity was needed just for lighting in any event because as he related to eNCA,
“you need learners to be able to learn with lights on”.

17. The further challenges he identified included the inability to finalise administration
work, such data capturing in the school system. He went on that “computers at
schools are also used for a system which manages the schooling system as a whole
and allows the department to capture information from schools. This system reports
on all the information coming from around 25 000 schools across the country.” On
this score, it is telling that in 2023, for the first time since the dawn of our democracy,
learners have returned to school without matric results having been released. There
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is no question that this untenable situation is due in large part to problems plaguing
the administrative process occasioned by the absence of power.

18. What is of serious concern too, as reported by Mr Mhlanga, is that the power cuts
are also causing delays in finishing the school curriculum and “the topics which are
not covered in the classroom learners have to catch up with at home but they are
also impacted by the load shedding at home, this results in schools falling behind
on the school curriculum.”

19. Mr Mhlanga advised that many schools and provincial education departments are
having to redirect their budgets in order to find alternative sources of power so that
schooling is not disrupted, and that “the department is concerned that matric
learners who are not well prepared for their final examinations due to power cuts
may be involved in irregularities such as copying or bringing notes with them into
the exam venue because they are afraid that they might not have covered all the
content.”

20. He noted that while matric learners were being provided with venues to study with
generators, the department is trying its level best to keep learning and teaching
going through its learner support programmes “but it is unusual and not sustainable.
We need power.”

21. In recognition of the fact that recurring power cuts have the potential to deprive
learners of an education, Mr Mhlanga said that the department has approached
Eskom with the proposal to keep the power on at schools during power cuts, but
stated that because schools are spread all over communities, Eskom said that it
would not be possible to do so.

22. Finally, learning that is reliant on technology is massively affected. As schools move
towards the digital era, some schools have started using smart boards which are
also disrupted as soon as load shedding starts. The daily power cuts also make
studying for learners at home difficult, and the commute to school is also an issue
as the traffic lights cause students to arrive late to school.
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The Right to Life and Healthcare

23. Load shedding also has a big effect on hospitals and healthcare workers. When load
shedding happens, many public hospitals lose the ability to provide proper health
care services. Even though many do have generators to provide backup power, it is
still not a sustainable option.

24. Frequent blackouts also affect medical equipment; as health equipment has been
upgraded and requires an uninterrupted power source, they get damaged as
continuous power cuts occur. Consumables such as pharmaceuticals, medications,
and vaccines that require cold storage are also a concern as they are unable to be
kept at the appropriate temperature during load shedding.

25. The safety of health care workers also gets compromised. Those who finish work
late or start very early in the morning are the most vulnerable to criminal acts during
load shedding.

26. Load shedding also contributes to the backlog of some surgical procedures.
Thousands of patients have had to wait to undergo surgery. The Ministry of Health
has acknowledged these problems, with the Health Minister, Honourable Joe
Phaahla reporting to Parliament on 30 September 2022 that:

Load shedding is a risk to the efforts to deliver on our constitutional mandate

of protecting, promoting and maintaining the health, safety and well-being of
patients and the public by ensuring quality pharmaceutical service for all South
Africans. However, as the department we will do whatever it takes to save
lives, just like the American politician James Richard Perry who said, the most
important thing for us is to save lives.

Although, majority of our public health facilities have back-up power supply
system which includes generators and Uninterrupted Power Supply (UPS),
especially hospitals, Community Health Centres which provide 24 hours
service and some clinics, but these alternative sources of energy were not
designed to provide back-up electricity for a longer period of time. Some of
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these generators are old, while others have no necessary capacity to power
the entire facility.

Thus, generators have been proven not to adequately meet the increasing
demands during load-shedding in health facilities, hence some hospitals are
left without choice, but forced to switch off some critical areas, which now
compromise patient care. That is why provinces like Limpopo have resorted to
put elective surgeries on hold until further notice.

These persistent power outages are significantly contributing to reduced

lifespan of some of the critical medical machinery and equipment, including
the same back-up generators. Again, these unpredictable prolonged power
outages and which are at higher stages of load shedding pose a threat to the
safety and efficacy of various medications and vaccines which need to be
stored within specific temperature.

The security in the health facilities is also compromised during the blackout
times, especially in the evening. Though, there are no reported cases or
incidents of criminal activities, healthcare workers feel vulnerable and don’t
feel safe to move between their residences and other sections of the health
facilities during the blackouts.

27. We are instructed to record, as we hereby do that power failures and the lack of a
robust, contingency plan is catastrophic to South Africa’s healthcare environment.
South Africa already has a strained healthcare system, and in a 2017 survey of 19
developing countries, was ranked last on efficiency in healthcare-related
expenditure. More than 80% of the nation is reliant on public healthcare services
and according to available data there are approximately 420 state-run hospitals and
more than 3 000 state-run clinics across the Republic.

28. While secondary and tertiary-level public hospitals have generators, the Minister of
Health has acknowledged that this is not sufficient given the long, and often
protracted outages being experienced. Smaller healthcare facilities including
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primary healthcare clinics are worse off and often left in the dark, with the cost of
alternative sources of power being substantial.

29. Infection control also becomes difficult to manage. The maintenance of sewage and
running water systems is vital for healthcare facilities to ensure adequate infection
prevention. South Africa’s strained sewage and water systems are poorly
maintained and already struggle to meet the demands of public sanitation and water
requirements. In addition, during load shedding staff may not be able to sterilise
surgical instruments and other essential items, thereby potentially delaying
emergency interventions and increasing the risk of complications.

30. These problems are multiplied when load shedding occurs, because of further
dysfunctionality. In the case of prolonged power failures, reservoirs may, as recently
reported, run dry. This is the main reason why several popular beaches in Kwa-
Zulu Natal and the Western Cape had to close down over the December period, with
a monumental impact on tourism.

31. The contravention is self-evident, with treatment being denied in extreme cases. It
is clear that load shedding has not only depleted the state’s ability provide
healthcare within the framework of its available resources, but has resulted in the
state contravening its constitutional obligation to progressively realise this
fundamental right. Finally, there have also been numerous reports that those who
are reliant on oxygen face mortal danger when load shedding takes effect.

The Right to Water and Basic Sanitation

32. It goes without saying that the impact of load shedding on our sewage and water
systems also contravenes the constitutionally entrenched rights of access to water,
accompanied by the concomitant entitlement to basic sanitation. In a statement
released on 7 July 2022, SALGA provincial chairperson, Thamsanqa Ntuli, reported
that:

“Load shedding-related electricity disruptions has severe consequences for

the continuous treatment and supply of water services. The consequences of
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electricity outages for potable water are so severe that in extreme cases
disrupting water supply completely, and compromising water quality.”

33. As a result of load shedding communities are not being furnished with the standard
of potable water suitable for consumption as entrenched in section 27, and given
effect to in the Water Services Act, 108 of 1997.

The Right to Food

34. Similarly, the pervasive power cuts are severely undermining the nation’s food
security in contravention of the entrenched rights of access to sufficient food and
water, with AgriSA reporting on 23 September 2022 that “[t]he greatest threat of load
shedding is to the country's food security, as crops fail for lack of irrigation or farmers
plant less for fear of losses …”

35. In a well reported meeting with the Minister of Agriculture on Friday, 13 January
2023, agricultural role-players spoke out over the extra challenges they face
because of load shedding. They reported that if the situation did not change, the
country would lose its food security and that job creation in the sector would also be
curtailed. They recorded that farmers using irrigation systems struggle every day to
get water to their crops and that livestock and wine farmers complain about the fact
that they need generators to ensure temperature regulation in warehouses or
chicken coops.

36. In response to the legitimate concerns raised, the spokesperson for the Department
of Agriculture, Mr Reggie Ngcobo, reported that a task team would be set up to
monitor the impact of load shedding on food security on the sector and “its ability to
provide safe and nutritious food to South Africans”.

The Right to a Safe Environment

37. Section 24 of the Constitution guarantees to all the right to an environment that “is
not harmful to their health or well-being”. The right to a safe environment
contemplates also the social context in which the populace finds itself at any given
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point in time. It cannot be disputed that the social environmental effect of non-stop
load shedding at high stages has damaged infrastructure; proven to be catastrophic
on healthcare, food security, access to water and sanitation and has led to a
dwindling economy and also an increase in the already high level of unemployment.
Combined with climate change, and shortages in potable water the state’s failure to
manage the impact of load shedding is nothing other than a dereliction of duty.

Access to Courts

38. Section 34 of the Constitution guarantees to everyone the right of access to courts.
We place on record that the vast majority of marginalised litigants seeks to vindicate
their rights in the lower courts. In many cases power cuts at Magistrates’ Courts
means that the proceedings come to a halt. In some cases the litigating public must
wait hours to be attended to, and where matters are postponed litigants and
witnesses must incur the cost of travelling to court again and again to finalise their
grievances. NADEL Chairperson, Advocate Sakhi Poswa, is reported as having
stated that this “puts everything in disarray”. In truth, it undermines the
administration of justice. Not all courts have back-up generators, with the result that
proceedings cannot continue in the face of load shedding.

39. Whilst the Department of Justice has indicated that it plans to ensure that all courts
have generators so that justice is not delayed, this simply has not transpired with
one of the busiest High Courts in the nation, the South Gauteng High Court in
Johannesburg, having to close its doors because of load shedding coupled with the
fact that it does not have a generator. The Deputy Judge President, in a statement
to the media bemoaned and apologised for the “grossly inadequate service being
made available to the public”, and announced that the default mode for hearing all
matters would be through video link.

Freedom and Security of the Person

40. Section 12(1)(c) of the Constitution guarantees to everyone the right to be free from
all forms of violence from either public or private sources. It has been widely
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reported that during load shedding housebreaking and theft of transformers and
cables, among others increases. Community Policing Forums report an increase in
crime incidents per week that would not have transpired if the lights were on. The
result has been an increase in night patrols, underpinned however by prevailing
uncertainty on how to keep the community safe during load shedding.

Breach of Constitutional Duties

41. Eskom is an organ of state. The Constitutional Court has affirmed its role to supply
electricity to ensure the economic and social; well-being of the people. It affirmed
further that Eskom cannot unilaterally reduce the bulk electricity it supplies. This
ruling does not only apply to the supply of electricity to municipalities, but equally to
Eskom’s general obligation to transmit and deliver electricity to the nation as a
whole.

42. Ordinary South Africans have a right to power or an alternative source of power.
Eskom was created to give effect to that right. The impact of the unilateral reduction
in load capacity has been to withhold electricity from municipalities, who in turn
cannot distribute powers to ratepayers falling in their district, undermining the
plethora of constitutional rights set out above.

43. Whilst it is for the state to determine how the use of electricity achieves these rights,
what is clear is that the state is not taking the reasonable measures required of it to
ensure that the energy crisis does not undermine constitutional rights. As a result
of these contraventions, the state is obligated to provide electricity.

44. Moreover electricity cannot be unilaterally withheld without procedural fairness.

Under the Promotion of Administrative Justice Act there is a right to procedural
fairness before the lights are switched off as it were, and to a reasonable opportunity
to make alternative arrangements. Further, when making alternative arrangements
the state is obliged to assist those who cannot afford an alternative power source.

45. As a result of the above to we are instructed to demand as we hereby do

acknowledgement from the Ministry of Public Enterprises and Eskom that:
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45.1. Its failure to provide reliable energy and the constant blackouts are a violation
of the range of constitutional rights set out herein;

45.2. The state is obligated to provide electricity and has failed to do so; and

45.3. The 18.65% increase in tariff, in circumstances where no service is being

provided, is irrational.

The demand

46. It has been reported that the President of the United States of America, Mr Joe
Biden had announced that his country, the United States of America had provided
an $8bn worth of loans to South Africa to assist the country to “shift from coal”. Our
clients do not understand the nature of the commitment that the country has entered
into with the United States of America. This is particularly so because it has also
been reported that South Africa’s coal exports have increased by 700%.

47. Our clients demand to know the precise nature of the agreement which has been
reached with the United States of America. If the agreement is in writing, our clients
demand a copy of the agreement.

48. The public announcement implies that there is a specific decision to abandon coal
as a source of energy. Our clients do not know whether this is the case of not. If this
is the case, our clients submit that the state has been extremely opaque and
inconsistent in relation to its actual plans and policy. The Minister of Minerals and
Energy has also publicly stated that any energy policy for South Africa must include
coal. Our clients demand to know whether or not there is a decision taken by the
government or anyone to “shift from coal”.

49. NUMSA is particularly concerned about the impact of closures of power stations on
employment. In the absence of an alternative plan, which is rational, reasonable and
implementable, the government cannot close down power stations, leaving the
country without electricity and reducing the energy availability ratio, and at the same
time contributing to unemployment and deepening levels of poverty. The annual
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financial statements of Eskom in 2021 already show that the power stations are
performing far below the expectation to produce sustainable electricity supply for
the country. If the government’s decision is to close down power stations, this must
be accompanied by a plan to address the consequences of such closure on jobs
and energy availability. In the absence of such an alternative plan, the government
is obliged to ensure that the power stations return to functionality to produce the
required levels of energy availability.

50. We are instructed to demand further that the state should provide the following
undertakings:

50.1. That there will be no load shedding without procedural fairness and a fair
opportunity to make alternative arrangements to affected persons and
businesses;

50.2. That load shedding will stop with immediate effect, and if not, a full
explanation about why the government is unable to stop load shedding with
immediate effect;

50.3. In the alternative, we are instructed to demand a specific timetable the as to

when load shedding will end, and the reasons for the said time table;

50.4. That the state will develop and make publicly available a clear plan to end
load shedding, which plan must include the resources available to ensure that
it is realised;

50.5. That the 18.65% increase granted by NERSA will not be implemented
pending the determination of the court challenge which our clients intend to
institute;

50.6. That the state will, through any lawfully created mechanism, make
reasonable disclosure to the public on the challenges driving the energy crisis
and the solutions implemented to solve it; and
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50.7. That the state will commit to compensate everyone who has suffered
quantifiable financial losses because of load shedding.

51. In the event that the undertakings sought are not provided by 20 January 2023 we
are instructed to inform you, as we hereby do, that application will be made to a
court of competent jurisdiction to secure appropriate relief. If we are compelled to
bring proceedings which we hope to avoid, papers shall be lodged on 23 January
2023 for urgent relief.

52. We await your urgent response.

Yours faithfully

MABUZA ATTORNEYS