Nonprofit the Organisation Undoing Tax Abuse is bringing an urgent application against the government aimed at overturning the National State of Disaster over the electricity crisis. 

The application was lodged in the Pretoria High Court on February 16.

Speaking on the matter at a briefing on the day, Outa executive director Advocate Stefanie Fick said the case was brought against eight respondents.

It is directed mainly at the first five respondents, who are President Cyril Ramaphosa, the head of the National Disaster Management Centre, the Cooperative Governance and Traditional Affairs Minister, the Mineral Resources and Energy Minister and the Minister of Public Enterprises.

The other respondents are cited as they are interested parties, but no relief is sought against them unless they oppose Outa’s application, she said.

“We are asking the court to review and set aside the declaration of the National State of Disaster. We are also asking the court to immediately interdict the first four respondents from taking any further steps in terms of the state of disaster, pending Part B of our application which aims to review the decision to declare a State of Disaster,” Fick stated.

She said Outa believed the decision to declare the disaster was “irrational, arbitrary and unlawful”.

Fick said the electricity crisis was not new and that it was created by the government itself over many years, and that this mismanagement could not be used to justify the declaration of a State of Disaster.

She added that the state of disaster grants extraordinary powers to the authorities to make far-reaching decisions without parliamentary oversight, which is a concern to the organisation in light of the past extensive looting enabled by emergency procurement during the Covid-19 State of Disaster.

“Even real-time auditing by the Auditor-General of the Covid spending could not stop the looting of the Covid emergency funds. We are also concerned that if this National State of Disaster is allowed to stand, it will open the floodgates for further such disasters to be declared in other sectors that suffer from similar dysfunction, mismanagement and corruption,” Fick said.

Trade union Solidarity on February 15 also lodged a court application seeking to halt implementation of the National State of Disaster.

OPPOSITION POINTS

The founding affidavit in Outa’s applications explains why the organisation is opposed to the State of Disaster, and Fick outlined some of these reasons.

Firstly, she said, the Disaster Management Act explicitly excludes crises which can be dealt with effectively in terms of existing national legislation, and that there is already legislation available to deal effectively with emergency electricity procurement.

For example, the Electricity Regulation Act allows the Minister of Mineral Resources and Energy to enter into agreements for new generation capacity, including emergency supply of power.

Secondly, there is already an Energy Action Plan in place, as announced by Ramaphosa in July 2022, at which time he indicated that this was preferable to declaring a State of Disaster.

Fick noted that the National Energy Crisis Committee was established to oversee this plan and its report last month lists achievements and does not mention any imminent national disaster.

She expressed Outa’s support for that plan, and said implementing it was required rather than a State of Disaster.

Thirdly, the State of Disaster is explained with reference to a possible “total blackout”. However, Fick said there was no evidence that a total blackout would occur.

The Disaster Management Act does not make provision for a disaster to be declared on a speculative future event, only on an existing event, she added.

She referenced a January media statement from State-owned utility Eskom wherein it indicated that even though the stages of loadshedding had been high and over extended periods, “there is no higher risk of a blackout than normal”.

Fourthly, Fick said Eskom did not appear to have been consulted about the need for a State of Disaster.

She noted that two days prior to the announcement, Eskom told Parliament that the best short-term solution was to find funds to run the diesel-powered generators and to relax some of the procurement requirements to speed up procurement.

“These actions do not require a State of Disaster and Eskom did not indicate a need for a State of Disaster,” she emphasised.

Fifthly, Outa was concerned that the Mineral Resources and Energy Minister would use the State of Disaster as a means to justify an emergency contract with Karpowership.

Outa is currently involved in litigation to overturn the Karpowership generation licences.

“A key point of dispute in that challenge is the exorbitant cost, over a prolonged period, of these projects,” Fick stated.

Sixth, Outa is concerned that procurement will be fast-tracked and hidden, which opens the door for corruption in all departments, as seen during the pandemic State of Disaster.

Lastly, Fick said there was no evidence that a State of Disaster would help and, to date, there was no indication of what the government intended to do that required this.

“Outa is bringing this application because we strongly believe society must reject the government’s attempts to grant itself extraordinary powers with reduced oversight, when having to deal with a self-created energy crisis,” Fick averred.

She said Outa anticipated the matter would be heard by the court on February 28.

She also indicated that, while Outa did not believe government would move ahead with regulations before the matter was heard, nor push the Karpowership deal through in the interim, Outa was ready to tackle these issues should they arise.