Introduction
The ongoing loadshedding due to challenges in Eskom – a state owned public company established to generate, transmit and distribute electricity[1] – have brought to public attention the importance of electricity to the everyday needs of ordinary South Africans and the impact of these outages on all aspects of the country’s economic, political and social activities and development.
Loadshedding has disrupted normal activities, led to massive traffic congestions due to failed traffic lights, and at the very least, denied millions of South Africans the ability to lead their normal lives including attending schools, work and earning a living. All these experiences and challenges have led many to question if the provision of electricity by the state is indeed a human right, and if it is, what is the response of human rights bodies like the South African Human Rights Commission to these challenges and failures by the state in this regard.
Whilst not specifically mentioned in the Bill of Rights, the provision of electricity is a human right and should be seen as such as treated as such. This is because the supply of electricity in inextricably linked to the right to dignity, life and housing.[2] This would mean that the state is obliged in terms of section 7 of the Constitution to take necessary measures to fulfil this right.
Some refer to the provision of electricity as a derivative[3] or an enabling human right; a right through which the realisation of other rights depends upon and increasingly depend upon with time. The realisation of rights pertaining to water, housing, food (its production and preparation), health and many other rights is increasingly impossible without the provision of electricity.
The provision of electricity is also crucial for economy growth through which a state can have sufficient resources to fulfil its primary responsibility if not the only responsibility, that is, the promotion, protection, and fulfilment of human rights.
The provision of electricity is crucial in advancing women’s rights and in reducing the undue and unfair burden women bear due to gender discrimination and the marginalization of women through patriarchy. Many women no longer have to take long hours looking for fire for heating and cooking purposes, when they have access to electricity – which should ideally be affordable, accessible, and coming from clean and renewable sources.
The provision of electricity can thus be seen as a prerequisite for all other human rights. Many of the Sustainable Development Goals[4] will not be adequately and effectively achieved without the provision of electricity, which should also be generated in a more sustainable manner that increasingly rely on renewable sources.
International perspective
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which South Africa ratified in 1995, provides in Article 14(2), the right for women to enjoy adequate living conditions, particularly in relation housing, sanitation, electricity, and water supply, transport, and communications.
It is in response to the benefits of electricity as a right and an enabler of other rights and impacts on sustainable development, Goal 7 of the UN Sustainable Goals, have called for a universal electrification by 2030 and to ensure that no one is indeed left behind in the enjoyment of human rights and economic and social development. Several SDGs highlight the importance of the provision and access to electricity in poverty eradication (Goal 1), enhancing education (Goal 4), empowering women (Goal 5), and economic opportunities (Goal 8).
As indicated above, the Bill of Rights of the South African Constitution does not make any specific reference to electricity as a fundamental human right. However, many if not most of the rights in the Bill of Rights, such as health, education, political rights pertaining to elections and so forth, cannot be adequately realised without electricity.
Section 39 of the Bill of Rights require the courts, tribunals when interpreting any provision of the Bill of Rights to consider international law such as CEDAW (this is obligatory), foreign law (this is optional) and should promote the values that underlie an open and democratic society based on human dignity, equality, and freedom. Furthermore, section 39 of the Bill of Rights does not deny the existence of any other recognised right to the extent that such a right is not inconsistent with the Bill of Rights.
Since CEDAW clearly provides for electricity as a right, our courts when interpreting any provision of the Bill Right relevant to the provision of electricity should factor this right in their construction of the Bill of Rights. The fact that South Africa has ratified CEDAW even makes this approach more compelling. In any case, section 233 of the Constitution requires of every court, when interpreting any legislation, to prefer a reasonable interpretation consistent with international law over any other alternative interpretation.
Section 232 of the Constitution also provides that customary international law is law in South Africa, save where such law is inconsistent with the Constitution or an Act of Parliament –one is not sure, however, if the provision of electricity has attained the status of international customary law, maybe it has and maybe it should like the right to water and fresh/clean air!
National perspective
Section 152 (1) of the Constitution provides, as some of the objects of local government, the promotion of social and economic development, the provision of services to communities in a sustainable manner and, the promotion of a safe and healthy environment. Section 152(2) of the Constitution imposes a constitutional obligation on all municipalities to “strive, within their financial and administrative capacity”, to achieve these objects. And of course, section 237 of the Constitution requires that all constitutional obligations must be performed “diligently and without delay”.
One does not have to be a rocket scientist to appreciate that it is almost impossible nowadays, to meet any of these objects without the provision and access to electricity. In any case, the Municipal Systems Act 2 of 2000 read with the Housing Act 107 of 1997 makes a statutory provision for the supply and availability of electricity. In this regard, section 9(1) (a) (iii) of the Housing Act provides that every municipality must ensure that “services in respect of water, sanitation, electricity, roads, stormwater drainage, and transport are provided in a manner which is economically efficient.”
In interpreting the above statutes in respective of the provision of electricity by the state, and municipalities in this context, the Constitutional Court in Joseph v the City of Johannesburg 2010 (4) SA 55(CC) [October 2009] at para 40 held:
“Taken together, these provisions impose constitutional and statutory obligations on local government to provide basic municipal services which include electricity. The applicants are entitled to receive these services. These rights and obligation have their basis in public law. Although in contrast to water, there is no specific provision in respect of electricity in the Constitution, electricity is an important basic municipal service which local government is ordinarily obliged to provide. The respondents are certainly subject to the duty to provide it. These rights and obligations have their basis in public law.”
In Mkontwana[5] the Constitutional Court held that ‘[m]unicipalities are obliged to provide water and electricity to the residents in their area as a matter of public duty.’[6]
In Eskom[7] the Supreme Court of Appeal had this to say about electricity: ‘[t]hat electricity is a component of the basic services that municipalities are constitutionally and statutorily obliged to provide to their residents is therefore beyond question’.[8]
The Court has noted that:
‘While there is no specific reference in Grootboom to the provision of access to and supply of electricity, it is self-evident that the supply of electricity is the cornerstone upon which all the realization of other rights is based. Homes cannot be built without electricity. Water cannot be pumped and sewerage reticulation cannot operate without electricity. Healthcare and in particular the operation of a healthcare facility which requires at a minimum running water and electricity to operate essential life-saving equipment cannot be realized without the supply of electricity…’[9]
Conclusion
The massive and rolling blackouts that the country and the people of South Africa are experiencing largely due to the incompetency and incapacity of the main supplier of electricity – Eskom. These blackouts, which have affected almost every sphere and facet of live and people in the country, have not only had a devastating impact on the economy of the country, adding to the economic woes brought about by Covid-19, but caused great inconvenience to many and affected crucial sectors like health and education.
These blackouts without any doubt, constitute a violation of fundamental human rights in many aspects and have also, to a large extent, made it difficult and impossible in many instances for municipalities to fulfil their constitutional and statutory obligations to provide electricity for the people of the country.
The question is then, what is to be done in response to these challenges and failures by relevant stakeholders?
What is clear though is that there isn’t sufficient appreciation that the provision of electricity is a human right, whether so reflected in the Bill of Rights or not, and should be seen as such and treated as such. Such an appreciation at the early stages of the South African Human Rights Commission and the Public Protector, would have certainly sparked a different intervention and a greater sense of urgency which might have help to avert or alleviate the devastating impacts of rolling blackouts – it is not too late for these bodies to enter the fray in a more decisive and impactful manner and as informed by their respective mandates.
At the end of the day, it is the ultimate role of the state to promote, respect and fulfil human rights including the right to electricity. This is why governments are elected and why the people’s representatives are elected to Parliaments to hold all those exercising public power and using public resources to exercise the same in a manner that advances the interests of the people and the country.
The failure of Eskom is also a failure of the executive, Parliament, Constitutional Bodies, and unfortunately and sadly, the failure of the people in the choice of leaders and representatives they have made and continue to make.
On the role and responsibilities of those exercising public power and using public resources, the Constitutional Court in Joseph (supra) said at para 46:
“…government [is] to act in a manner that is responsive, respectful and fair when fulfilling its constitutional and statutory obligations. This is of particular importance in the delivery of public services at the level of local government. Municipalities are after all, at the forefront of government. Municipalities are after all, at the forefront of government interaction with citizens. Compliance by local government with its procedural fairness obligations is crucial therefore, not only for the protection of citizens’ rights, but to facilitate trust in the public administration and in our participatory democracy.”
The November 2021 Local Government Elections are a good but sad indication of this declining trust in public administration and participatory democracy. And unfortunately, Eskom and the rolling blackouts are not helping at all.
Eskom is an organ of state in terms of section 239 of the Constitution and has a role to play in the progressive realisation of the fundamental rights contained in ss 24, 25, 26, 26, 27 and 29 of the Constitution.[10] It is thus important that those who are in charge of Eskom see the generation, transmission, and distribution of electricity as a human right obligation with clear human rights implications and consequences for the failure to provide electricity accordingly. The provision of electricity should not be seen mainly as an economic transaction between the producer and consumer regulated by purely market rules and nothing else.
In view of the importance of electricity to the realisation of almost all human rights, it is thus important that there should be a move towards having the right to electricity as a standard alone right in the Bill of Rights[11] and Chapter 9 bodies such as the South African Human Rights Commission, in the context of its mandate and powers, can contribute and playing an important role in this regard.
Adv. Tseliso Thipanyane
[1] See: https://www.eskom.co.za/about-eskom/company-information/. The Eskom Conversion Act 13 of 2001, converted Eskom into a public company under the Companies Act but with its entire share capital held by the state. This Act also repealed the Eskom Act 40 of 1987 in its entirety.
[2] Vaal River Development Association (Pty) Ltd v Eskom Holdings SOC Ltd and Others; Lekwa Rate Payers Association NPC v Eskom Holdings SOC Ltd and Others (31813/20) [2020] ZAGPPHC 429 (28 August 2020) (unreported).
[3] Stephen Tully, ‘The Human Right to Access Electricity’, The Electricity Journal 30 (2006), 38.
[4]See: https://sdgs.un.org/goals
[5] Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (1) SA 530 (CC).
[6] Ibid para 38.
[7] Eskom Holdings SOC Ltd v Resilient Properties (Pty) Ltd and Others 2021 (3) SA 47 (SCA)
[8] Ibid para 13.
[9] Vaal River Development Association (Pty) Ltd v Eskom Holdings SOC Ltd and Others; Lekwa Rate Payers Association NPC v Eskom Holdings SOC Ltd and Others (31813/20) [2020] ZAGPPHC 429 (28 August 2020) (unreported) para 37.
[10] Eskom Holdings SOC Ltd v Resilient Properties (Pty) Ltd and Others 2021 (3) SA 47 (SCA) para 60.; See also section 6(5)(a) and (b) of the Eskom Conversion Act 13 of 2001, which provides the developmental role played by Eskom as well as the promotional duty of promoting ‘universal access to, and the provision of, affordable electricity, taking into account the cost of electricity, financial sustainability and the competitiveness of Eskom’.
[11] See Stephen Tully “Access to Electricity as a Human Right” Netherlands Quarterly of Human Rights Vol 24/4(2006) pp557-588.