OUTA legal action ends electricity state of disaster

Two big wins for civil society today: State attorney tells OUTA lawyers that government is withdrawing the declaration of the national state of disaster on electricity and will pay OUTA’s court costs, and the Minister of Finance withdrew the controversial financial exemption for Eskom

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05/04/2023 08:59:27

.Image: Flickr / GovZA / compilation OUTA

OUTA legal action ends electricity state of disaster

The state is withdrawing the national state of disaster in response to OUTA’s legal action challenging its rationality.

“This is huge win for civil society. We are delighted. Civil society showed that we have a voice, and our voices matter,” says Advocate Stefanie Fick, OUTA Executive Director. “In principle, this case is done and dusted.”

OUTA was formally notified of the withdrawal in the State Attorney’s written response on Wednesday (5 April) as part of OUTA’s legal action to review and overturn the decisions to declare the state of disaster. The State Attorney has offered to pay OUTA’s wasted court costs in the case.

The State Attorney’s letter comes while OUTA was waiting for the state’s answering affidavits, which were overdue. The matter was due for a case management meeting with the judge on 12 April, at which OUTA planned to ask for an expedited court date for the hearing.

“We are instructed that the Minister of Co-operative Governance and Traditional Affairs, in consultation with the relevant Cabinet members, has decided to terminate the state of disaster in accordance with section 27(5)(b) of the Disaster Management Act, 57 of 2002 and to repeal the State of Disaster Regulations promulgated in Government Gazette No. 48145, GNR 3089 on 27 February 2023. We are further instructed that the Head of the National Disaster Management Centre has decided to revoke the classification of the impact of the severe electricity supply constraint as a national disaster,” wrote the Pretoria State Attorney to OUTA’s lawyers.

“The Minister of CoGTA and the Head of the National Disaster Management Centre will implement these decisions today through the publication of the relevant notices in the Government Gazette.”

The State Attorney said that this would make OUTA’s application moot, asked OUTA to withdraw it and proposed a joint letter to the court to confirm this.

“We invite the applicants to withdraw their applications. The first to fifth respondents tender the costs of the two applications and will consent to an order on these terms. The state respondents do not intend filing an answering affidavit addressing the merits of either application.”

OUTA’s case challenging the state of disaster was filed in the Pretoria High Court on 16 February (see here), as an application to review and overturn the decisions. OUTA believes the electricity shortage is a crisis, but brought the case over concerns that the disaster regulations would be used to enable corruption, while existing law could be used to manage the crisis.

The respondents included the President, the head of the National Disaster Management Centre, three ministers and Eskom. OUTA’s application said the electricity supply crisis had been created by dysfunctional government over years and laws already existed to enable urgent action to address it. As part of this action, the state had to provide OUTA with the records relating to the decisions. OUTA subsequently filed court papers referencing those records and pointing out that the disaster was declared without any evidence to back it up. Government’s own records show that those consulted by government did not support the declaration of a national state of disaster on the electricity supply crisis but believed that the electricity crisis could be managed through existing national legislation, and the records do not explain why a state of disaster was declared, said OUTA in those papers (see here).

Also today, Minister of Finance Enoch Godongwana withdrew the exemption granted to Eskom from complying with part of the Public Finance Management Act, limiting transparency on irregular, wasteful and fruitless expenditure in the entity’s annual financial statements (see here and here). OUTA had been among those who criticised this exemption (see here).

OUTA CEO Wayne Duvenage says both these decisions are big wins for civil society.

“Today government has backtracked on two major decisions which had infuriated those who want transparency and good governance. This is a welcome indication of government finally acknowledging and listening to the public,” says Wayne Duvenage, OUTA CEO.

He said both the declaration of the disaster and the Eskom exemption decisions were bad decisions. “We believe that government is not applying its mind, we believe that government is shooting from the hip, and is possibly being badly advised on some of these decisions.”


More information

The State Attorney’s letter to OUTA’s lawyers is here.

A soundclip with comment by OUTA’s Advocate Stefanie Fick is here.

A soundclip with comment by OUTA CEO Wayne Duvenage is here.

The Government Gazette notice ending the state of disaster is here.

More on OUTA’s case against the national state of disaster is here.

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