Van Damme weighs in on calls to sue Eskom & government for load-shedding

Former DA MP Phumzile van Damme has weighed in on calls to sue Eskom and the government for load-shedding. 

Hundreds of angry citizens have vented their fury on social media as load-shedding seemingly gets worse with every wintry day that passes. Eskom's moves between various stages of load-shedding this week left many with the impression that it is not in control.

Eskom said stage 6 load-shedding was because it was not able to return some generators to service.

“Due to unlawful and unprotected labour action which has caused widespread disruption to Eskom’s power plants, Eskom is unable to return some generators to service. 

“This has compelled Eskom to continue taking precautionary measures to conserve emergency generation capacity and safeguard plant from damage. There remains a risk that the stage of load-shedding may have to change at any time, depending on the state of the plant,” said Eskom.

Weighing in, Van Damme said she reckons it would be possible to bring a civil suit against the government for the blackouts. 

“By failing to provide access to a basic service, it has violated rights and caused economic harm. The loss can be quantifiable for a business. Individuals could provide evidence [of] demonstrable loss,” said Van Damme.

She acknowledged that it may not be easy to do but said she believes the courts would be sympathetic to the cause. 

“It may seem like a tall task, but I do believe the courts would be sympathetic ... Access to electricity isn’t a codified constitutional right but the argument can be made that the blackouts affect access to other rights, and, therefore, there has been a violation,” she said. 

“That’s if the argument is a constitutional one. In addition, loss of income and affect on quality of life is a sound basis for a lawsuit. This has precedent in jurisprudence and is an argument that can be made in a civil suit.”

Van Damme said she hoped an organisation or individuals with an “appetite” would step in and say enough is enough. 

“It isn't unwinnable. We have talented lawyers and courts that err on the side of the protection and realisation of rights. I hope an organisation or individuals with an appetite for this will step into the fray and say 'enough' to government. It’s a gross failure of governance,” said Van Damme.

“[Take the] just administrative action angle. Are the blackouts just administrative action? Through judicial PAJA-review of every decision to load-shed the government would be forced to release all documentation related to Eskom. The amount of corruption that could be uncovered?

“If no organisation or political party is willing to take this up on behalf of SA, active citizenry, crowdsource funding, I’m sure there is counsel who would provide their service pro bono. Do it.”

Eskom in 2019 poured cold water over a planned class-action lawsuit against load-shedding.

Legal firm De Beer Attorneys announced it was planning to take legal action against Eskom in respect of the preventable losses suffered by businesses and individuals as a result of load-shedding.

In response, Eskom said the law firm had little ground to stand on.

The power utility said it relied on the National Code of Practice for Emergency Load Reduction and System Restoration Practices of 2010 as the reason the parastatal could not be sued for load-shedding.

In May, public enterprises minister Pravin Gordhan dismissed calls to declare Eskom a state of disaster, saying there was no need for the declaration because load-shedding was a tool to protect the system from total collapse.

“Eskom manages the stability of the grid with load-shedding as a key mechanism to mitigate against collapse. There is no requirement for Eskom or government to declare such an emergency,” said Gordhan.

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