Minister of Public Enterprises Pravin Gordhan on Tuesday applied for leave to appeal to the order issued earlier in May that all hospitals, clinics, schools and police stations should be spared from electricity disruptions.

On 5 May, Judge Norman Davis ordered the Minister to "take all reasonable steps" within 60 days to ensure that public health establishments, state schools and the South African Police Service are not affected by loadshedding.

This came after the United Democratic Movement (UDM), Inkatha Freedom Party, Action SA, the National Union of Metalworkers and other organisations launched a legal bid to spare hospitals and clinics, 23 000 public schools and police stations from loadshedding.

Gordhan is the second respondent, alongside Eskom, President Cyril Ramaphosa, the National Energy Regulator of South Africa and others.

A notice of application for leave to appeal to the SCA lists four grounds on which the minister wishes to appeal. These are that the order was vague; that it is impossible to implement; that the order "violates the rule of law"; and that it infringes on the principle of separation of powers.

Unclear, impossible

In short, Gordhan contends that the order was unclear in that it did not prescribe what steps he should take or what defines a "reasonable" step.

Moreover, the notice says, the order "wrongly assumes that the minister has the power and ability" to ensure a sufficient supply of electricity to the listed facilities.

In practical terms, Gordhan takes issue with the judgment's criticism of generators as a solution, arguing that preferred alternatives such as solar PV panels will take longer than 60 days to install.

Furthermore, the filed papers argue, there are "multiple causes of the energy crisis", which means multiple organs of state are required to work together. This means it is impossible for Gordhan – even working with other organs of state – to meet the demands of the order within 60 days.

Similarly, Gordhan contends, the order calls for him to take steps that fall outside of his area of authority.

The papers further note that the judgment would require the state to "drastically rearrange its budget", which is not possible within 60 days and moreover, would require completion of certain processes and coordination with other ministers.

At the time of the initial ruling, Vincent Magwenya, spokesperson for the Presidency, noted "significant concerns about the judgment and its impact on the stability of the grid".

The notice of leave to appeal relates to part A of the case. The UDM and others also want the court to issue an order to hold Ramaphosa legally responsible for the human cost of load shedding. Part B is set to be heard in September.