.Image: Picture of Dr Elias Sithole: UFS LinkedIn / Picture of Nkosazana Dlamini Zuma: Flickr/GovZA / compilation OUTA

Record shows state of disaster was declared without evidence

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. The records do not explain why a state of disaster was declared.

OUTA is challenging the state of disaster in court. In terms of a court order on 28 February in this case, OUTA was provided with the record and reasons for the decisions taken.

“The reasons reflect that the parties and stakeholders consulted were against a declaration of a national state of disaster. Nevertheless, government proceeded to declare this as a national state of disaster,” says Brendan Slade, OUTA Legal Project Manager.

On 8 February, the head of the Disaster Management Centre (NDMC), Dr Elias Sithole, classified the electricity supply crisis as a national disaster and the then Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini Zuma, on that basis declared the national state of disaster. OUTA’s case, filed in the Pretoria High Court on 16 February 2023, calls on the court to review and overturn those decisions.

OUTA’s case cites eight respondents but is focused on the head of the NDMC and the Minister as they made the decisions. They are opposing the action.

OUTA’s supplementary affidavit

After receiving the record, OUTA filed a supplementary affidavit, using information from the record of the decisions.

“The record confirms the arbitrary manner in which the second and third respondents [the head of the NDMC and the Minister] took the impugned decision, despite the fact that the stakeholders (including the third respondent herself) had pointed out that there was sufficient legislation in place to deal with the electricity crisis and that the definition of a national disaster under the DMA [Disaster Management Act] was not met,” says Advocate Stefanie Fick, OUTA Executive Director, in her affidavit.

Fick says that “the record also illustrates that both the second and the third respondents acted unlawfully and outside the power conferred on them by the DMA”.

The discussions covered in the record, about whether a disaster should be declared, seem to have been sparked by a letter on 17 January from Western Cape Premier Alan Winde to the President and others, including Dlamini Zuma and Sithole, raising concern about the electricity supply situation and support a declaration of a national state of disaster. Winde wrote that the real GDP lost to the Western Cape in 2022 due to loadshedding was estimated at R8.2 billion, and agriculture and service delivery were under severe threat.

When the Presidency circulated the Winde letter for comment, Dlamini Zuma wrote on 23 January that there was sufficient national legislation to empower the executive to address the energy crisis, and that the classification and declaration of a national disaster “may not be the appropriate mechanisms” to address the crisis “particularly as the Department of Public Enterprises and Eskom have assured us that there is sufficient legislative and other mechanisms to deal with the energy crisis”. Minister of Public Enterprises Pravin Gordhan responded but did not call for a state of disaster.

On 1 February, Sithole met Eskom, the Department of Public Enterprises and the National Electricity Crisis Committee, which confirmed that there is sufficient existing legislation to deal with the crisis. The CEO of Agri SA also told Sithole that Agri SA did not support classify it as a disaster.

On 6 February, the NDMC decided that there was sufficient national legislation and thus the situation could not be classified as a disaster.

On 7 February, Eskom presented an energy plan to Parliament which made no mention of any need to declare a state of disaster.

On 8 February, Sithole told Dlamini Zuma he had changed his mind, and she subsequently also changed her mind.

“The record shows that nothing further happened between 6 February 2023 and 8 February 2023. No new facts came to light during this period. No new consultations or meetings with any stakeholders are recorded. Yet, on 8 February 2023 the second respondent, with the same information at his disposal as two days prior, embarked on what seems to be a frolic of his own and advised the third respondent ‘that the NDMC had changed its position and had decided to classify the impact of the severe electricity supply constraint as a national disaster’. The decision appears to rest on a hunch developed by the second respondent overnight that the electricity crisis ‘may’ suddenly be a disaster,” says Fick. There is no indication of how this decision was reached.

In his letter to the Minister, Sithole noted that a declaration could lead to legal action against the government due to various academic opinions that the disaster law was not intended to address matters that could be regarded as government failures. “The declaration of a state of disaster for something that can be perceived as service delivery failure may set a precedent for declaring states of disaster for other service delivery failures, especially in the local government sphere,” wrote Sithole.

Dlamini Zuma declared the disaster the following day.

Fick says there is no reasoning or information in the record to explain the sudden change in position by both Sithole and Dlamini Zuma, and no explanation of why the existing legislation would not be sufficient.

“Looking at the recommendations of all the relevant stakeholders (and the advice given by the third respondent herself to the President on 23 January 2023), there is simply no rational basis on which such a change of position could be achieved within such a short period of time,” says Fick.

Fick says the decisions were based on errors of fact or law, that Sithole and Dlamini Zuma failed to apply their minds, their decisions were unconstitutional and unlawful so should be set aside.

Fick says there is no evidence that a state of disaster is required to enable the ending of loadshedding. Before the state of disaster was declared government exempted 76 hospitals from loadshedding, showing that a state of disaster is not required to exempt emergency and essential services.

It took Dlamini Zuma nearly three weeks to issue regulations on the disaster, and there is no indication that these would lead to different outcomes from those achievable under existing legislation.

“It is submitted that this matter can be differentiated from other national disasters (Covid-19, floods etc) in that a disaster is normally unforeseen and unpredictable. This means Parliament is not able to legislate the requisite and unpredictable emergency measures that may be needed in advance. The electricity crisis is different. In addition to the fact that there is already sufficient existing legislation in place, the nature of the crisis is entirely predictable (and has been for years). There is no reason to forego parliamentary oversight and leave the dealing of the disaster almost exclusively in the hands of the executive to allow for virtually unfettered procurement processes and deal-making as was seen during the Covid-19 disaster,” says Fick.

More information

The supplementary affidavit by Advocate Stefanie Fick is here

A soundclip with comment by Advocate Fick is here.

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

A video clip with comment by OUTA Legal Project Manager Brendan Slade is here.