Reducing electricity supply: Majority judgment

Note: Footnotes omitted, and emphasis added

MADLANGA J (Mathopo J, Mhlantla J, Theron J and Tshiqi J concurring):

Introduction

[189] It is deeply disturbing that – through no fault of their own – the residents of the Lekwa and Ngwathe Municipalities (residents) are subjected to a situation that violates several of their fundamental rights protected in the Bill of Rights. A situation that infringes their right to dignity, their right of access to healthcare services, their right of access to sufficient water, their right to an environment that is not harmful to health or well-being and the right to basic education. The residents add that there is even a threat or real risk of infringement of the right to life. All this, as a direct consequence of Eskom’s conduct. I say all this is happening through no fault on the part of the residents because they say that the two municipalities have a prepaid electricity system and that they (the residents) do pay their dues. That notwithstanding, they find themselves caught up in the dispute between Eskom and the errant municipalities. A dispute at the centre of which is the woeful and reprehensible failure by the municipalities to pay Eskom for the electricity it supplies, and which I do not condone in the least. A classic, practical and painful manifestation of the saying, “When two elephants fight, it is the grass that gets trampled.”

[190] At the outset, let me clarify that I make no holding on whether the residents have a constitutional right to the supply of electricity by Eskom. I do not find it necessary to make that holding because, even though the residents did assert that right, they rely on several other constitutional rights and those other rights are dispositive of the matter. I will focus only on those other rights.

[191] At issue is whether – pending the finalisation of review proceedings that the residents intend instituting – this Court must allow the effects of Eskom’s conduct to persist. Must this Court – at an interim stage – allow the residents to be subjected to such abject misery and horrendous violation of fundamental rights? My colleague Unterhalter AJ, whose judgment (first judgment) I have had the pleasure of reading, says yes. I say no.

[192] Upfront let me highlight a fundamental flaw in my colleague’s reasoning. I do so because that fundamental flaw permeates the first judgment and is central to the conclusion my colleague reaches on the merits. That flaw is the idea in the first judgment that the residents should have asserted and proved the existence of a specific constitutional right to be supplied with electricity by Eskom.

As I demonstrate more fully later that idea is mistaken. The residents do not have to rely on any such constitutional right. They assert several other rights protected by the Bill of Rights, which I highlight above. Without question, the residents do enjoy constitutional protection of those rights. Not even the first judgment can suggest otherwise. My judgment does explain the relevance of these rights in the context of these proceedings and the proposed PAJA review.

[193] Secondly, I must underscore a related proposition. On my reading, the first judgment says there must be a direct correlation between what is sought to be restored through an interim interdict and the right alleged to have been breached. Putting it differently and relating it to the present matter, the first judgment suggests that if the interim interdict seeks the restoration of electricity supply, the right alleged to have been breached must be a right to the supply of electricity.

And continues the first judgment, there must first be a duty resting on Eskom to supply the residents with electricity and a breach of that duty before Eskom can be ordered to restore the supply of electricity. To illustrate its point, the first judgment embarks on an extensive, but basic, discussion on rights and duties and how they interface.

[194] The first judgment’s proposition fails to take into account the fact that multiple rights protected in the Bill of Rights can be violated by a single action. And those rights are not always squarely or perfectly correlative or corresponding. What informs the need for their vindication is the fact of their violation. In the present matter it is the sudden substantial reduction of electricity that resulted in the rights violations. The logical corrective measure to address the rights violations is the reversal of the causative act. That is, the restoration of the usual electricity supply. How else do you halt the rights violations? Do you do nothing and throw up your hands in complete despair whilst the violations continue unabated? If that were the case, the law would really be the proverbial ass.

[195] This is less about the residents’ right to the supply of electricity by Eskom (which they need not assert) and more about correcting Eskom’s legally impermissible action. Why is Eskom’s conduct legally impermissible? In this matter the rights at issue are rights that the residents enjoy in terms of the Bill of Rights. How these rights feature is that Eskom’s conduct of substantially reducing electricity supply has resulted in their infringement. Each infringement constitutes an “adverse” and “material and adverse” effect envisaged in sections 1 and 4(1) of PAJA respectively.

So, in accordance with administrative law 101, we have here a decision by Eskom, an organ of state, made in the exercise of a public power in terms of the ERA, which adversely affects the residents’ rights. And exactly because of the deplorable conditions to which the residents have been subjected as a result of Eskom’s decision, a fact which is accepted by the first judgment, the decision does have a direct, external legal effect.

It defies logic how the causative act – the substantial reduction of electricity supply – should suddenly be taken out of the equation and be completely irrelevant in redressing the rights violations.

[196] With all this in mind, one will immediately see that the exposition in the first judgment on rights, duties, rights holders, duty bearers and one or more other basic concepts on rights is totally irrelevant.

[197] Thirdly, I wish to highlight that the first judgment erroneously concludes that section 7(2) of the Constitution finds no application here.

Before I go any further, let me make the observation that I am able to reach the outcome I propose even without reliance on section 7(2) of the Constitution. The residents aver that the administrative action of the substantial reduction of electricity supply adversely affected several of their fundamental rights protected in the Bill of Rights. They also say that the administrative action was taken without following a fair procedure.

That is sufficient for purposes of a prima facie case founded on section 6(2)(c) of PAJA. As I say later, it would be the height of illogicality if those same fundamental rights cannot ground the interim interdict sought pending finalisation of the intended PAJA review. I explain later that the nature of a “right” that may be asserted for purposes of a PAJA review is quite expansive in its reach. It encompasses rights protected in the Bill of Rights. It is exactly those rights that have been asserted by the residents.

[198] Adverting to section 7(2) of the Constitution – which I deal with purely because of the first judgment’s insistence that Eskom owed no duty whatsoever to the residents – the section decrees that “[t]he state must respect, protect, promote and fulfil the rights in the Bill of Rights”. The basis of the erroneous insistence is that – as the residents enjoy no constitutional right to the supply of electricity by Eskom – there is no right to be respected, protected, promoted and fulfilled by Eskom in terms of section 7(2).

[199] What is particularly relevant in section 7(2) is the obligation resting on the state (which includes Eskom as an organ of state) to respect the rights in the Bill of Rights. Of the four section 7(2) obligations (respect, protect, promote and fulfil), I single out “respect” because I am not dealing with the matter on the basis that Eskom bears a direct, positive duty to supply electricity to the residents. The section 7(2) obligation to respect the rights in the Bill of Rights entails that the state must refrain from unreasonable conduct that results in the infringement of rights in the Bill of Rights. I use the reasonableness standard based on the majority judgment in Glenister.

There Moseneke DCJ and Cameron J held that

“[s]ection 7(2) implicitly demands that the steps the state takes must be reasonable”.

[200] The sudden and substantial reduction of the electricity supply which – according to the residents was made without notice – was the trigger that resulted in the catastrophic infringements of the residents’ rights. Therein lies the basis of the residents’ case that Eskom failed to respect several of their rights protected by the Bill of Rights. In terms of section 7(2) of the Constitution the state (including Eskom) bears an obligation to respect the rights in the Bill of Rights. If the conduct – howsoever arising – has the effect of infringing the residents’ rights, that is the focal point.

The question is: is there a rights violation arising from Eskom’s conduct? I say there is. The first judgment says there is not. Of course, it says so because its focus is on the wrong right. When I return to this section 7(2) point later, I rely on Juma Musjid by way of analogy.

[201] The first judgment misses all this because it fixates on the idea of constricting the right the residents ought to assert and prove as being a specific constitutional right to a direct supply of electricity by Eskom. That misconceived point of departure naturally leads to a wrong outcome.

[202] I emphasise the substantial nature of the reduction of electricity supply because of its catastrophic effect on the lives of the residents. So, this judgment is not about any reduction. It is about a reduction, the effect of which is of the catastrophic nature I describe shortly. The first judgment’s approach is quite absolutist on the idea that the only relevant right is the residents’ right to a supply of electricity by Eskom. On that approach, even if Eskom were suddenly and without notice to effect a total blackout, for example, for a month or more, affected end users would not be in a position to assert rights protected in the Bill of Rights as a basis for a PAJA review of the decision in terms of which the blackout was effected. To say that even under those circumstances end users would have no right protected by the Bill of Rights to assert revolts against my sense of constitutionalism. And it is not an answer to this rights question to say that the residents may or might well have some other basis to challenge the decision.

[203] Fourthly and relatedly, as I said, the interim interdict at issue was granted pending a PAJA review. What triggers an entitlement to a PAJA review is a decision that adversely affects the rights of any person. Quinot and Maree point out that this definition may not give all the necessary guidance to an administrator who is yet to take a decision. That is so because “an administrator must know whether [their] decision will impact adversely on the rights before that decision is taken in order to know whether it is administrative action and would thus require the prescripts of PAJA”.

An elucidation by Nugent JA in Grey’s Marine provides an answer.

He said, correctly, “decision” was “probably intended rather to convey that administrative action is action that has the capacity to affect legal rights”. This has been accepted by this Court. This, of course, does not serve to exclude a decision that does affect the rights of persons.

[204] Axiomatically, Eskom’s decision to reduce electricity supply has adversely affected the residents’ right to dignity, their right of access to healthcare services, their right to an environment that is not harmful to health or well-being, the right to basic education and the right to life. So, these rights bear relevance to the intended PAJA review. As I show later, “rights” – as envisaged in the definition of “administrative action” in section 1 of PAJA – has a wide meaning. That meaning encompasses the rights asserted by the residents. These rights and the adverse effect on them are also of significance towards proving the first and second requirements for an interim interdict.

[205] That is the context in which the rights must be viewed. The first judgment disregards this context when it says “the residents cannot claim something as of right which forms no part of the contents of the rights they invoke. And no invocation of deplorable social and economic effects can cure this juridical lacuna”. There is no lacuna. In fact, it would be perverse to have a situation where a litigant establishes a right adversely affected by a decision for purposes of a PAJA review, but is unable to seek protection of that right by way of an interim interdict pending the PAJA review. So, it manifestly makes sense that the unrestricted right protected by the Bill of Rights can also be the same unrestricted right protectable in terms of an interim interdict. I do not understand why the first judgment insists on restricting the nature of the right.

[206] Fifthly and crucially, my judgment does not hold that the residents are entitled to a continued supply of electricity in quantities that guarantee that the rights they assert are not infringed even in circumstances where Eskom is entitled to terminate or reduce supply in terms of section 21(5) of the ERA.

This judgment says no more than that, in this instance, pending the determination of the proposed PAJA review of Eskom’s exercise of the section 21(5) power, the residents must be afforded interim relief that directs Eskom to restore electricity supply to what it was before the reduction. This observation is crucial, because it cuts across what the first judgment perceives as an ominous threat of a total collapse if Eskom is not allowed to reduce or terminate supply where that is warranted.

That is but a bogeyman and we must see it for what it is. The residents’ case does not stand in the way of warranted section 25(1) reductions or terminations of supply. Reductions or terminations must take place in a manner not susceptible to a PAJA review; that is all that my judgment says.

No bar at all to warranted section 21(5) reductions or terminations. Is the first judgment suggesting that Eskom is entitled to ride roughshod over the residents’ right to just administrative action? Eskom as an organ of state bears a higher duty “to respect the law, to fulfil procedural requirements and to tread respectfully when dealing with rights. . . . It must do right, and it must do it properly”. Although said in a different context, these words are apposite here as well.

[207] All that my judgment does is to say Eskom is perfectly entitled to avert any ominous grid collapse that it perceives. But because ours is a constitutional state, Eskom must do so in accordance with the Constitution and the law. It is neither above the law, nor a law unto itself.

From where the residents are sitting, alleging as they do that Eskom did not give them notice, the substantial reduction came out of nowhere like a bolt of lightning. On their version of the facts, which I do not understand to be contradicted by Eskom, they were denied even the very basic opportunity to brace themselves for the substantial reduction in electricity supply.

More importantly, they were not afforded an opportunity to make representations to Eskom. The importance of notice and an opportunity to make representations cannot be overemphasised. The opportunity is so important that authority says it must not be denied, even where it is thought the affected person cannot possibly have anything to say or that whatever they may say is not likely to influence the decision.

In John v Rees, Megarry J colourfully and aptly put it thus:

“It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they say, ‘why force everybody to go through the tiresome waste of time in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”

[208] This has been quoted with approval a few times by our courts.

Hoexter and Penfold say:

“Procedural fairness . . . is concerned with giving people an opportunity to participate in the decisions that will affect them, and – crucially – a chance of influencing the outcome of those decisions. Such participation is a safeguard that not only signals respect for the dignity and worth of the participants but is also likely to improve the quality and rationality of administrative decision-making and to enhance its legitimacy.”

[209] I do not engage in the debate about the interface between sections 3 and 4 of PAJA. That is not necessary for the resolution of this matter.

It is enough to say that section 4(1) of PAJA proceeds from the premise that a fair procedure is necessary. Section 4(1) provides for options open to an administrator “in order to give effect to the right to procedurally fair administrative action” where the administrative action materially and adversely affects the rights of the public. The reduction decision, affecting as it does two entire municipal areas, affected the public. And the residents aver that Eskom took the decision without following a fair procedure. Administrative action that is procedurally unfair is liable to be reviewed in terms of section 6(2)(c) of PAJA. That is what the residents want to hold Eskom to. That much is clear, and it matters not that they have pleaded more than just that.

[210] There is always something that informs administrative action. At times, just like Eskom says is the case here, the administrative action may be meant to avert grave consequences. But however grave the consequences, the functionary must follow the fair process applicable to administrative action affecting the rights of the public set out in section 4 of PAJA.

The graveness of the consequences sought to be averted alone can never be a licence for the functionary to act as if our law does not impose rights to just administrative action. Of course, the form and extent of the fair process depends on the nature and circumstances of what is at issue.

[211] At this stage of the proceedings, I say no more than that the residents appear to have made out a strong case for the review that is yet to be pursued in the High Court.

The review stage will likely, in the main, be about process, something that was protected even by the common law under apartheid. How much more under our constitutional system that guarantees the right to just administrative action in section 33 of the Constitution?

The first judgment is an unfortunate retrograde step. It says there need be no notice nor hearing in circumstances where the administrative action of a state functionary or entity is sure to result in the most horrendous violations of rights protected in the Bill of Rights. And few, very few, rights violations surpass what the residents of the two municipalities have been subjected to. And courts must sit idly by and not heed the call of the affected residents for appropriate redress.

[212] The first judgment mischaracterises what I say when it suggests that I do little more than engage in the “invocation of deplorable social and economic effects”.

It says this in the context of its central thesis that the residents have no right to assert against Eskom. I identify rights that have been adversely affected by the decision to reduce the supply of electricity or rights that have been materially or adversely affected by that decision.

[213] I do not hold that the intended review will succeed.

I merely say that pending its determination, the residents are entitled to interim relief. My judgment does not and cannot question Eskom’s substantive entitlement, indeed power, to terminate or reduce electricity under section 21(5) of the ERA.

[214] I deal with four of these issues more fully later. I highlight them upfront because the eloquence in the first judgment may easily seduce one not to see the wood for the trees. I will say very little on the point about the correlation between what is sought to be restored through an interim interdict and the right alleged to have been breached.

Section 7(2)(a) and (c) of PAJA

[215] I next deal with what I consider to be a preliminary point. The first judgment non suits the residents on, amongst others, the basis that they approached the High Court without first complying with the provisions of section 7(2)(a) of PAJA nor showing that they are in a position to convince the reviewing Court to grant them exemption in terms of section 7(2)(c) of PAJA from compliance with section 7(2)(a). Section 7(2)(a) provides that “no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted”. And section 7(2)(c) provides that “[a] court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedies if the court or tribunal deems it in the interest of justice”.

[216] The substance of the first judgment’s point is that the residents ought not to have approached the High Court for the relief sought without first exhausting what the first judgment suggests are internal remedies under the ERA. The first judgment is mistaken in this regard. The operative word in section 7(2)(a) is “review”. What was before the High Court, the Supreme Court of Appeal and now this Court is not a review. It is interim relief for an interdict sought by way of urgency pending a review. So, in the proceedings for interim relief, section 7(2)(a) cannot feature because these proceedings are not a PAJA review. It will feature in the review proceedings which, at the time the urgent application for interim relief was launched, were yet to be instituted. This reasoning applies equally to section 7(2)(c) as it concerns exemption from the need to exhaust internal remedies in a review. As to what impact, if any, section 7(2)(a) and (c) should have on the outcome of the application for an interim interdict is a different matter. My response is directed at the fact that the first judgment suggests that even in the present proceedings this section should non-suit the residents in the same manner as it would in a PAJA review.

[217] The first judgment says my response is not an answer to its section 7(2) point.

That is so, claims the first judgment, because as part of showing – at the stage of interim interdict proceedings – that they “have prospects of prevailing at the [intended] review”, the residents must demonstrate what their case is on compliance with section 7(2)(a).

That means they must show either that they have exhausted internal remedies, or that they have a basis on which they will seek, before the reviewing court, section 7(2)(c) exemption from the obligation to exhaust internal remedies. The effect of what the first judgment says is to require the application of two similar but different preliminary requirements in interim interdicts sought in the context of PAJA reviews that are either pending or still to be instituted.

[218] The second preliminary requirement, which – for purposes of the brief discussion that follows – I refer to as the common law requirement, is one of the four requirements for the grant of interim interdictory relief. It is that an applicant for an interim interdict must show that there is no other satisfactory remedy.

This being one of the requirements for the grant of an interim interdict, whether it has been satisfied is axiomatically a question for decision by the court determining the request for an interim interdict. I say the two requirements are different because the common law requirement is about all interim interdicts, not only those sought in the context of pending PAJA reviews or PAJA reviews that are yet to be instituted. Also, the common law requirement is expansive in its reach in the sense that it brings within its sweep any other satisfactory remedy.

The limit is whether the remedy is satisfactory; a question the answer to which depends on the circumstances of each case. And this remedy, may, but need not, be an internal remedy. On the other hand, what need be exhausted before a court may entertain a PAJA review are internal remedies.

Hoexter and Penfold say “internal” and “any other law” in the phrase “any internal remedy provided for in any other law” must be “read restrictively to include only remedies specifically provided for in the legislation with which the case is concerned and to exclude optional extras”.

Lastly, section 7(2)(a) of PAJA, in terms, applies to PAJA reviews, not interim interdicts. That said, the two requirements are similar because both are about the need to exhaust other remedies before relief can be granted.

[219] The first judgment insists that, in the case of an application for an interim interdict pending a PAJA review, in addition to the requirement of showing that there is no other satisfactory remedy, an applicant must show that, at the later PAJA review proceedings, section 7(2)(a) will not be an impediment.

To my mind, this question is not as simple as the first judgment makes it out to be.

Without making any decision in this regard, I will point out possible difficulties that lie in the path of the first judgment’s approach. And I put it no higher than possible difficulties.

[220] First, the first judgment’s approach is unduly restrictive. On its own, the common law requirement is already burdensome to the right of access to court. With the first judgment’s insistence on the additional requirement, this burden is doubled. Put differently, the result of the first judgment’s approach, implicitly insisting as it does on these two preliminary requirements, is that the attainment of interim interdicts pending PAJA reviews is a tall order. A tall order that has a negative impact on the fundamental right of access to courts guaranteed in section 34 of the Constitution. This, in circumstances where section 7(2)(a) says nothing about interim interdicts sought pending PAJA reviews.

[221] An interpretation that says section 7(2)(a) of PAJA does not apply to applications for interim interdicts pending PAJA review applications better conduces to the enjoyment of the right of access to courts. And there is precedent – albeit in the context of section 7(2)(c) of PAJA – that upheld a preference for an interpretation that better protects the right of access to courts.

That is the case of Earthlife Africa where Griesel J held that—

“in case of doubt in relation to either of the two criteria laid down by section 7(2)(c) of PAJA, the Court should, in my view, incline to an interpretation of the facts and the law that promotes, rather than hampers, access to the courts.”

[222] The Court adopted this permissive approach in the context of section 7(2)(c) which already seeks to ameliorate the restrictive effect of section 7(2)(a). One would have thought that this permissive approach must apply with more force in the context of section 7(2)(a), which is more restrictive.

[223] Second, in Gavric Theron J effectively held that in exceptional circumstances an applicant’s failure to apply for an exemption in terms of section 7(2)(c) may be excused.

I am not unmindful of the fact that – on the Court’s holding – the Gavric facts were highly exceptional.

But the point of substance is that there may be any number of exceptional circumstances. That being the case, non suiting an applicant at the stage of the application for an interim interdict for failure to show that there is enough that will convince the reviewing court to grant a section 7(2)(c) exemption denies the applicant the possibility of an exemption even where there is no application.

[224] Third, the purpose of the section 7(2)(a) requirement is relevant to the interpretative exercise.

That purpose, which is to ensure that the administrative process is not undermined, was elucidated thus by Mokgoro J in Koyabe:

“[A]pproaching a court before the higher administrative body is given the opportunity to exhaust its own existing mechanisms undermines the autonomy of the administrative process. It renders the judicial process premature, effectively usurping the executive role and function. The scope of administrative action extends over a wide range of circumstances, and the crafting of specialist administrative procedures suited to the particular administrative action in question enhances procedural fairness as enshrined in our Constitution.”

[225] This purpose will not in the least be undermined if section 7(2)(a) of PAJA plays no role in the determination of applications for interim relief pending PAJA reviews. At the stage of review, an applicant may be non-suited in terms of section 7(2)(a) for failure to exhaust internal remedies before seeking review.

Or the reviewing court may refuse a section 7(2)(c) application for the exemption of non-compliance with section 7(2)(a). And when all this is done at the review stage, the purpose of section 7(2)(a) will have been served.

On the contrary, the additional requirement insisted upon by the first judgment serves no purpose other than to make the attainment of an interim interdict pending a PAJA review more difficult. I say so because, as I highlight shortly, the facts of this case cry out for the grant of the interim mandatory interdict sought by the residents. And – for reasons proffered later – I see no legal impediment either.

But the first judgment says the residents cannot get the interdict. On the facts that I say cry out for the interdict, the residents accurately describe what has happened as a “human catastrophe”. And it is.

What stands in the way of the grant of the otherwise well-deserved interim interdict are only the first judgment’s impermissibly restrictive approach to the nature of the constitutional right to which the application is pegged and technical hurdles, including the additional section 7(2) requirement, imposed by the first judgment.

[226] Fourth, in Bato Star O’Regan J accepted the possibility that review proceedings and the exhaustion of internal remedies may run concurrently.

In her own words:

“[A] court minded to grant permission to a litigant to pursue the review of a decision before exhausting internal remedies should consider whether the litigant should be permitted simultaneously to pursue those internal remedies. In considering this question, a court needs to ensure that the possibility of duplicate or contradictory relief is avoided.”

[227] All that said, I leave open the question of what role, if any, section 7(2)(a) and (c) must play in proceedings for an interim interdict pending a PAJA review.

I do so because there is an easy way of dealing with the issue raised by the first judgment. The residents have pleaded that there was simply no satisfactory remedy other than an urgent approach to court for an interim interdict. The High Court’s judgment call on that was obviously that, indeed, there was no other satisfactory remedy. Put differently, the High Court was satisfied that the requirement that an applicant for an interim interdict must demonstrate the absence of any other satisfactory remedy had been met.

Plainly then, it would be incongruous to suggest that, despite there being no satisfactory remedy other than the grant of an interim interdict, following the ERA internal remedial processes would somehow be an exception and require exhaustion as a satisfactory remedy.

[228] When the proceedings for an interim interdict were instituted, the ERA processes were a possible remedy. But, on the basis of the residents’ averment that there was no other satisfactory remedy, that must obviously mean that the residents are saying the ERA processes were not options that they could invoke. Legal remedies exist as a matter of substantive law. But whether – in a given case – it is practical to call in aid any of those remedies is a factual question. Eskom does not appeal against the finding that there was no other satisfactory remedy.

It is appealing only the legal question whether, before the High Court, the residents – as a matter of law – ought to have addressed the section 7(2)(a) and (c) issue. Thus, it is not open to this Court to consider the factual question whether it was practical for the residents to pursue other remedies, including the ERA processes. That is a factual question that has been determined by the High Court, and it is not on appeal before us. The first judgment does grapple with this factual question and concludes that there was no evidence on it. That is an idle exercise as it is not open to the first judgment to do so.

[229] In sum, even if the ERA processes could have constituted a type of satisfactory remedy, they cannot now stand alone and somehow ground Eskom’s appeal under section 7(2)(a) and (c) of PAJA.

Subsidiarity

[230] The first judgment also invokes the principle of subsidiarity. It says that the ERA comprehensively regulates the generation, transmission and distribution of electricity and the relationships of supply. These relationships include the attendant rights and obligations, insofar as they relate to municipalities and Eskom which supplies bulk electricity to municipalities and to municipalities (as Eskom’s customers) and residents of municipalities (as end users). The first judgment then makes the observation that, based on this Court’s jurisprudence, the principle of subsidiarity has a number of applications.

And—

“[o]ne application of the principle is that a litigant cannot directly invoke a constitutional right when legislation has been enacted to give effect to that right. The litigant must either challenge the constitutionality of the legislation so enacted or rely upon the legislation to make its case.”

[231] The first judgment concludes that where Parliament has legislated as comprehensively as it has done in the ERA, the residents cannot look outside the ERA to assert rights against Eskom. In accordance with the principle of subsidiarity, the residents must assert their rights in terms of the ERA or challenge its constitutionality, which they have not done.

Finally, the first judgment non suits the residents on the basis that

“[t]he principle of subsidiarity excludes the relief that the residents have sought in their review, and hence precludes the grant of the interim relief that they have obtained”.

[232] The first judgment is wrong in non-suiting the residents on this basis.

In the minority judgment in My Vote Counts I, Cameron J has this to say:

“Subsidiarity denotes a hierarchical ordering of institutions, of norms, of principles, or of remedies, and signifies that the central institution, or higher norm, should be invoked only where the more local institution, or concrete norm, or detailed principle or remedy, does not avail. The word has been given a range of meanings in our constitutional law. It is useful in considering the scope of subsidiarity, and Parliament’s reliance on it – to have them all in mind.”

[233] The My Vote Counts I minority judgment proceeds to instance how the principle of subsidiarity has been applied by this Court. It first refers to the now discarded Mhlungu principle that if a case can be decided without reliance on a constitutional issue, it should be so decided.

Cameron J explains that this principle was crafted at the time when “the Appellate Division [now the Supreme Court of Appeal] had no constitutional jurisdiction, and this Court had constitutional jurisdiction only”.

It makes the point that the abandonment of the Mhlungu principle has had the effect of promoting “the primacy of constitutional approaches to rights determination”.

But it cautions that this does not mean—

“resort to constitutional rights and values may be freewheeling or haphazard. The Constitution is primary, but its influence is mostly indirect. It is perceived through its effects on the legislation and the common law – to which one must look first.”

[234] The minority judgment next renders the most common articulation of the principle of subsidiarity, which is about what Klare calls an “effect giving statute”, a tag I adopt for convenience.

So called because it concerns statutes that give effect to constitutional rights. The articulation is that—

“a litigant cannot directly invoke the Constitution to extract a right he or she seeks to enforce without first relying on, or attacking the constitutionality of, legislation enacted to give effect to that right. . . . Once legislation to fulfil a constitutional right exists, the Constitution’s embodiment of that right is no longer the prime mechanism for its enforcement. The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role.”

[235] What was at issue in My Vote Counts I was an effect giving statute.

[236] I quote extensively from the minority judgment because the majority did not take issue with any of these holdings.

In Masuku, Khampepe J held, quoting the minority in My Vote Counts I:

“Broadly, the principle of subsidiarity is the judicial theory whereby the adjudication of substantive issues is determined with reference to more particular, rather than more general, constitutional norms. The principle is based on the understanding that, although the Constitution enjoys superiority over other legal sources, its existence does not threaten or displace ordinary legal principles and its superiority cannot oust legislative provisions enacted to give life and content to rights introduced by the Constitution. In simple terms, the principle can be summarised thus:

‘Once legislation to fulfil a constitutional right exists, the Constitution’s embodiment of that right is no longer the prime mechanism for its enforcement. The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role.’

Ultimately, the effect of the principle is that it operates to ensure that disputes are determined using the specific, often more comprehensive, legislation enacted to give effect to a constitutional right, preventing them from being determined by invoking the Constitution and relying on the right directly, to the exclusion of that legislation.”

[237] Without claiming to be exhaustive, in addition to My Vote Counts I and Masuku, I have gone through other judgments of this Court that deal with the principle of subsidiarity.

In New Clicks, SANDU, Pillay, Mazibuko, PFE International, De Lange, Thubakgale and Residents of Industry House the mention of, or pronouncement on, the principle of subsidiarity was about effect giving statutes.

Although Bato Star did not mention the principle by name,

“[i]t was the first decision to give explicit recognition to the doctrine of subsidiarity”.

In that case this Court held that section 6 of PAJA has codified the grounds of review of administrative action and that, therefore, one could no longer rely on the common law as a basis for review. Of importance, the context was section 33(3) of the Constitution, which provides that national legislation must be enacted to give effect to the rights contained in section 33(1) and (2) and that such legislation must, inter alia, “provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal”. In this sense, Bato Star was also about effect giving legislation.

[238] Even the minority judgment of Jafta J in Sali dealt with the principle of subsidiarity in the context of legislation giving effect to a right in the Bill of Rights.

[239] Recently in Women’s Legal Centre Trust this Court applied the principle of subsidiarity in a context that was unrelated to an effect giving statute.

It held that, despite its holding that the Marriage Act and Divorce Act were defective, under inclusive and had given rise to a number of rights violations, these Acts were legislation nonetheless. It was inappropriate to hold that the state was obliged by section 7(2) to legislate only in respect of Muslim marriages. The appropriate course was to challenge the constitutionality of the legislation and not merely to allege that the state had failed to fulfil a duty to legislate.

Tlaletsi AJ completed the picture thus:

“If, in the face of legislation alleged to violate constitutional rights, litigants could seek to compel the state to legislate on the basis of section 7(2) directly, without challenging the legislation itself, this would permit litigants to by-pass the relevant legislation, and rely directly on the Constitution. Such a course is exactly what the principle of subsidiarity cautions against. Accordingly, given that the state has, albeit deficiently, enacted legislation with regards to matters of marriage and divorce, the litigants are not permitted to compel the legislature to pass legislation purely by virtue of section 7(2).”

[240] Lastly, this Court invoked the principle of subsidiarity in the context of inter country adoptions. This was in the case of AD.

Sachs J held that the principle of subsidiarity was a core factor that governed inter-country adoptions and had to be adhered to. The judgment explains that the principle is sourced from article 17 of the United Nations Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally.

Article 17 provides:

“If a child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the country of origin, intercountry adoption may be considered as an alternative means of providing the child with a family.”

[241] With the exception of Women’s Legal Centre Trust and AD, mention of, or pronouncements on, the principle of subsidiarity are about effect giving statutes.

It is unsurprising, therefore, that the first judgment also places reliance on the “[o]ne application of the principle [that says] a litigant cannot directly invoke a constitutional right when legislation has been enacted to give effect to that right”.

The legislation that the first judgment mentions is the ERA.

A difficulty that I have is that no explanation is given as to the constitutional right the ERA supposedly gives effect to. Without that explanation, the point made by the first judgment is incomplete.

[242] The lack of explanation aside, the long title of the ERA and section 2, which sets out the objects of the ERA, suggest that this Act has nothing to do with giving effect to a constitutional right. I could not pick up any part of the ERA that suggests the contrary.

[243] I am well aware that, in addition to this Court’s jurisprudence, there is a lot of learning on the principle of subsidiarity. I do not deal with what all this learning says on the principle.

Suffice it to say Murcott and Van der Westhuizen make the point that the principle must apply even in instances involving legislation that does not give effect to a constitutional right or is not in any other way the result of a constitutional injunction.

I am paraphrasing. How the principle must apply is that where there is legislation of the nature I have just described that covers the field on a given subject, a legal remedy must be sought from that legislation and not from other “non-specific” legislation or the common law. The effect of this would be that in the instant matter the residents would be precluded from seeking a review of the reduction decision under PAJA and that, instead, they would have to seek redress under the ERA.

[244] I do not express a view one way or the other on what the authors say. What I say instead is that thus far this Court has not pronounced on this point. If this point is to have any impact at all on the case of the residents, at worst for them it would do no more than cast some doubt on their prima facie right. A definitive holding must be left for the reviewing court and, if there be appeals, appellate courts thereafter.

It would be mistaken for this Court, at this stage, to make a final decision on the issue. And, because there has not been a definitive holding one way or the other on the point, section 34 of the Constitution entitles the residents to seek appropriate relief in terms of section 38 of the Constitution. Although, as the first judgment says, the ERA is quite expansive in its reach, it is unlike PAJA, which displaced common law grounds of review and codified them under section 6.

[245] These are not proceedings for a final interdict, which requires a showing of: a clear right; an injury that has occurred, is occurring or is reasonably apprehended; and absence of any other satisfactory remedy.

The first judgment’s categorical and definitive approach pitches the standard too high. It does not recognise that all that need be proven at this stage is a prima facie right that may be open to some doubt. It seems to me the first judgment requires the showing of a clear right. That cannot be. This is uncharted territory. And whether subsidiarity should finally bar a PAJA review must be decided by the reviewing court.

[246] For completeness, in case it may not altogether be clear why the requirement of a prima facie right is relevant to a discussion on subsidiarity, let me offer an explanation. The point is that if subsidiarity were to non-suit the residents, that would mean as a matter of substantive law, the rights they assert could not be vindicated by way of a review under PAJA. At the stage of proceedings for an interim interdict, subsidiarity would serve to show that the proposed review would be a non starter. That is, the residents would have no right or entitlement to it. They would lack a prima facie right. As I say, here we cannot reach that final conclusion.

[247] The first judgment says that it is not open to me to decline to decide the question whether the principle of subsidiarity precludes the residents from seeking a review of the reduction decision under PAJA and requires, instead, that they must seek redress under the ERA.

It reasons that this is a legal question and that the legal rule that a prima facie right may be open to some doubt relates to evidentiary matter, not legal questions. I disagree.

It is so that in Webster v Mitchell, the leading and oft cited case on interim interdicts, what was at issue was factual matter. Right from the start the case deals with Molteno Bros where – according to Webster v Mitchell – the respondent in Molteno Bros

“had put before the Court on the issue concerned merely a bare denial, so that the learned judge was concerned not with the probabilities between two contradictory versions, but with whether the inherent probabilities of the appellant’s case were such that the right was prima facie established”.

Yes, that is plainly about facts.

[248] In Webster v Mitchell itself Clayden J also invoked the idea of a right’s openness to some doubt in the context of factual matter. What was at issue was whether the applicant had placed before the court enough evidentiary material to establish prima facie ownership of the horse that was the subject of the application. This says nothing about whether the openness of a right to some doubt can be applied to legal questions.

Contrary to the first judgment’s categorical statement that this applies only to factual issues, this question has been the subject of intense judicial debate, with views being expressed for and against either position. An example of a judgment that expressed disagreement with the idea of a judge at an interim stage approaching a legal question “half-heartedly” is Fourie. Amongst others, Viljoen J said the later decision of a legal question half heartedly decided earlier by another judge would be at odds with the rule on res judicata, would unnecessarily increase costs, and would cause embarrassment to the judge considering the matter later, if they want to differ from the earlier judge’s view.

Goldstein J differed in Tony Rahme Marketing Agencies, saying:

“Whilst there may be situations where a Court having to decide on an interim interdict has sufficient time and assistance to arrive at a final view on a disputed legal point – in which event it probably ought to express a firm view in order to save costs – situations of urgency arise when decisions on legal issues have to be made without the judicial officer concerned having had the time to arrive at a final considered view. In such a situation [they are] surely forced to express only a prima facie view. I cannot see how the expression of such a view and the grant of interim relief only would conflict with the principles of res judicata. I also see no embarrassment in an urgent Court judge being overridden by a trial judge . . . . The interlocutory decisions of colleagues, and indeed those of our own, are not binding at later stages of the proceedings and should, and I trust, do yield easily to persuasive arguments indicating error or oversight.”

[249] In Geyser Van Oosten J held that

“a legal issue should only be decided at the interlocutory stage of the proceedings if it would result in the final disposal of either the matter as a whole or a particular aspect thereof”.

[250] I take the view that it does not help to be categorical one way or the other on this. The approach to be adopted must be dictated by the circumstances of each case. Sight should not be lost of the fact that a substantial number of applications for interim relief are brought by way of urgency. There is much to be said for the view that a judge sitting in a busy urgent court does not have as much time as does a judge who hears trials or decides non-urgent opposed matters.

Although each judge must strive for the attainment of the best possible outcome in the circumstances, this reality cannot be ignored. Of course, this is not an invitation to judges considering urgent interim interdicts to avoid deciding legal questions which – with the necessary diligence – are capable of definitive decision.

[251] There are legal questions that are capable of easy resolution to any judge worth their salt. Those must be decided definitively. If, as a matter of law, the right asserted by the applicant for interim relief is held not to exist at all, that will be the end of the matter. And that will result in a saving in costs as there will be no subsequent litigation.

On the other hand, the legal right may definitively be held to exist as a matter of law and all that may remain for determination at the later proceedings may be whether, on the facts, the applicant has made out a case. There may also be those circumstances where – either because of a combination of factors that include the complexity of the legal question, its novelty, little or no assistance from the litigants’ argument, the speed with which the outcome is required and lack of sufficient time for the judge to consider the matter as best they can – the judge may not be in a position to reach a definitive decision on a legal question.

In Johannesburg Municipal Pension Fund Malan J held:

“Impressive and erudite arguments were addressed to me on all these grounds. I cannot do justice to all the considerations referred to. All the issues referred to involve ‘difficult questions of law’ and none of them can be described as ‘ordinary’. Nor is it desirable to rule at this interim stage that there is no prospect of success on any of these bases of review. The issues are simply too involved (‘a serious question to be tried’) and of such gravity that they cannot be, and should not be, disposed of in these interim proceedings. The city has disavowed reliance on the notices purporting to amend Notice 6766 and I do not intend dealing with their validity, but accept for the purposes of this judgment the applicants’ contentions.”

I see no legal impediment to a judge in such circumstances reaching a conclusion that says prima facie there is enough pointing to the determination of the legal question in the applicant’s favour in the envisaged later proceedings.

[252] Coming to the present question, if what I conclude above was open to the Court determining the application for interim relief, it is open to this Court too. After all, this matter is before us on appeal against what that Court decided. In addition, as my discussion of the question shows, it is complex, novel and, although all counsel presented good arguments on the case in general, arguments on this question were not sufficiently extensive.

In any event, it would not be prudent for this Court to decide the question. Of course, this Court employs the interests of justice criterion in deciding certain questions. This is a fitting question for the employment of that criterion. I do not consider it to be in the interests of justice to reach a definitive holding on this question. It is best left for decision by the Court that will hear the PAJA review.

Requisites for an interim interdict

[253] A litigant seeking an interim interdict must show: a prima facie right even if it is open to some doubt; a reasonable apprehension of irreparable and imminent harm to the right if an interdict is not granted; that the balance of convenience favours the grant of an interim interdict; and that the applicant has no other satisfactory remedy.

A prima facie right

[254] As I indicated in the introduction, the first judgment says that the residents have not asserted any right in the Bill of Rights as a basis for their entitlement to the supply of electricity. I think the first judgment’s focus on the lack of a right to be supplied with electricity which is sourced from the Bill of Rights looks at the matter too narrowly. This narrow focus is magnified by the analogy that the first judgment draws. Let me demonstrate – by first focusing on the analogy – the existence of rights enjoyed by the residents which bear relevance to this matter and their infringement by Eskom’s conduct.

In the analogy the first judgment says:

“The right to life or to dignity may be enhanced for particular classes of persons by claims upon state resources. Every poor person would lead a more dignified life if the state gave them a minimum income every month. That may be a good policy for the state to adopt. It is a matter of considerable public debate. Such a policy may or may not be affordable. But these are not measures that may be claimed as an incident of the right to life or the right to dignity. They should not be decided by the courts. They are matters to be decided by other institutions of a democratic state: the Legislature and the Executive.”

[255] Yes, poverty – especially extreme poverty in which a disturbingly large number in our country languish – is an unwelcome phenomenon. But I think the analogy is inapt. The residents’ case is not just about poverty. There has been the interposition of something additional; something out of the ordinary. In this regard and only for purposes of illustration, I pay particular attention to the averments of the Ngwathe residents.

[256] In addition to extreme poverty, the sudden and substantial reduction in the electricity supply to within NMD levels has, overnight, subjected residents of the affected areas to the reality of having to contend with what they accurately describe as a “human catastrophe”. I state the facts based on what the situation was when the residents approached the High Court. That is, based on the situation before the grant of the interim interdict.

[257] The substantial reduction in the electricity supply has had an adverse effect on the treatment of sewage. As a result, raw faecal matter flows into the Vaal River, with dire consequences for the environment and health of the residents. The health hazard arises from the fact that the existing infrastructure for the extraction of water from the river is located such that it draws what is supposed to be potable water from the very area of the river into which the faeces flows.

[258] Relatedly, the inadequate supply of electricity has caused the water purification system to malfunction, further affecting the provision of potable water negatively. That means even if there was no faeces in the water, there would still be an inadequate supply of potable water as a result of the malfunction of the water purification system which, in turn, results directly from the reduction in the electricity supply.

There is the spectre of loss of human life and general adverse consequences in the provision of proper healthcare services at hospitals and old age nursing homes. This is as a result of the fact that the hospitals and old age nursing homes in the affected areas have not been spared the effects of the reduction of electricity supply. Economic activity has been affected to such an extent that there is a risk of closure of some businesses and loss of jobs. Children of school going age are also victims as all schools from high schools to nursery schools are negatively affected due to lack of electricity for many hours per day.

[259] On the facts and thus on the rights asserted, there are some commonalities with the case presented by the Lekwa residents.

[260] It is worth noting that Eskom has not cogently denied the facts asserted by the residents. If these facts do not demonstrate an infringement of several rights guaranteed in the Bill of Rights, nothing will.

Of course, the implicated rights are the right to dignity, the right to life, the right of access to healthcare services, the right of access to sufficient water (I would add this must surely mean potable and generally usable water, not water contaminated with faecal matter and generally not cleaned properly), the right to an environment that is not harmful to health or well-being and the right to basic education. The rights violations arise directly from Eskom’s conduct. Thus, there is simply no comparison with what the first judgment – in concluding its analogy – says may not be claimed as an incident of the right to life or the right to dignity.

[261] The first judgment suggests that the rights relied upon by the residents were not pleaded clearly for Eskom to know the case it had to meet. I disagree. The articulation of the rights relied upon and the facts pleaded in support of the rights violations is clear enough. The first judgment’s difficulty stems from its refusal to accept that the relief sought could be obtained on the basis of the rights violations graphically pleaded by the residents. There is simply no way Eskom would have been at sea as to what case it had to meet.

To suggest that Eskom would not have known what case it had to meet would be a classic example of ukuzimela ngesicithi (a siXhosa saying that means to hide behind a small, short tuft of grass).

[262] At the risk of being repetitive, I need to quote something else the first judgment says.

It says:

“I have identified the rights relied upon by the residents as the basis upon which the Associations contend that the reduction decision is unlawful, and hence reviewable. The more expansive account of the rights of the residents that are said to have been compromised by the reduction decision, taken up in the reasoning of the High Court, and by way of submission before this Court, is not borne out by the pleaded case. This is of no small significance. Eskom was entitled to know the case it had to meet, and, in particular, the rights claimed by the residents that are claimed to give rise to a duty owed by Eskom to supply them with electricity.”

[263] This misses the point. The residents make a simple case.

Eskom’s decision of substantially reducing electricity supply has resulted in a breach of several rights protected by the Bill of Rights. That decision was taken without first giving notice or following a fair procedure. That is borne out by the pleaded case.

[264] The first judgment proceeds to make the point that in the absence of a right claimed by the residents to give rise to a duty owed by Eskom to supply them with electricity, Eskom’s duty in terms of section 7(2) of the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights is not triggered.

[265] Without deciding the question whether the residents have a constitutional right to a direct supply of electricity by Eskom, it is so that there is contractual privity between Eskom and the municipalities, and not between the residents and Eskom. That matters not.

The lack of contractual privity does not stand in the way of the residents asserting other rights protected by the Bill of Rights, which have been infringed by the decision to reduce electricity supply substantially. That is, rights other than the contentious right that the first judgment says they do not enjoy.

[266] The first judgment says the municipalities, and not Eskom, should be that component of the state that must make good the state’s obligations under section 7(2). The residents were enjoying all the fundamental rights I have identified. What dramatically and suddenly changed all that was Eskom’s implementation of its decision to reduce supply.

In terms of section 7(2) of the Constitution which, amongst others, provides that the state must respect the rights in the Bill of Rights, Eskom (an organ of state) had a duty not to conduct itself in a manner that would result in an infringement of those rights. It had a duty to respect those rights through refraining from acting in a manner that would cause their infringement. That, of course, is subject to the lawful exercise of the power Eskom enjoys in terms of section 21(5) of the ERA to reduce or terminate the supply of electricity.

[267] The duty resting on the state to respect the rights in the Bill of Rights is uncontroversial. That is especially so as this Court held in Juma Musjid that even a private person or entity bears a negative obligation in terms of section 8(2) of the Constitution not to act in a manner that “interfere[s] with or diminish[es] the enjoyment of a right”. The state’s duties under section 7(2) can be breached “directly” or “indirectly”, for instance, when there is a “failure to respect the existing protection [or enjoyment] of the right by taking measures that diminish that protection [or enjoyment]”.

And, more specifically in the context of what was at issue in that case, the Court held that a private person or entity bears a negative duty “not to impair the learners’ right to basic education”.

[268] Also, the relationship between Eskom, the municipalities and residents, on the one hand, and the relationship, in Joseph, between the municipality, the lessor and lessee, on the other, is analogous.

In Joseph the applicants were tenants in a residential property. The lessor owed a substantial amount of money to City Power, the City of Johannesburg’s electricity service provider, in respect of the supply of electricity to the property. As a result, the electricity supply was terminated. This Court noted that the “difficulties” that arose in the case were: the fact that the applicants were tenants who had no contractual right to receive electricity from City Power; and the fact that the applicants, instead, paid their electricity bills to the lessor whose company had a contract with City Power for the supply of electricity.

The Court then had to answer the question whether “any legal relationship exists between the applicants and City Power outside the bounds of contractual privity that entitles the applicants to procedural fairness before their household electricity supply is terminated”. The termination of supply had taken place without City Power giving notice. The applicants contended that the termination of supply without notice was procedurally unfair. The rights that they claimed had been infringed as a result of the termination and which founded the PAJA cause of action were: the right of access to housing in terms of section 26 of the Constitution; the right to human dignity in terms of section 10 of the Constitution; and the contractual right to electricity supply in terms of the contract of lease.

[269] What is of importance is that Joseph had to grapple with what constituted “rights” for purposes of PAJA’s conception of that term.

Before giving an answer on this, Skweyiya J said that the lessor—

“concluded a contract as a ‘customer’ with City Power for the sole purpose of facilitating the supply of electricity to tenants in his building. He was a conduit. In supplying electricity to [the residential property], City Power knew that it was providing electricity to tenants living in the building. It is therefore, in my view, artificial to think of the contractual relationship between [the lessor] and City Power as being unrelated to the benefits that accrued to the applicants under this contract.”

[270] Proceeding to deal with rights, he held:

“The focus of the enquiry therefore is the relationship, if any, between City Power as a public service provider and users of the service with whom it has no formal contractual relationship. This is similar to the approach adopted by Sachs J in Residents of Joe Slovo, in which the lawfulness of the occupation of municipal council land by homeless families was considered. Sachs J observed that this question—
‘must be located not in the framework of the common law rights of landowners, but in the context of the special cluster of legal relationships between the council and the occupants established by the Constitution and the Housing Act . . . . The very manner in which these relationships are established and extinguished will be different from the manner in which these relationships might be created by the common law . . . . They flow instead from an articulation of public responsibilities . . . and possess an ongoing, organic and dynamic character that evolves over time.’

I am of the view that this case is similarly about the ‘special cluster of relationships’ that exist between a municipality and citizens, which is fundamentally cemented by the public responsibilities that a municipality bears in terms of the Constitution and legislation in respect of the persons living in its jurisdiction. At this level, administrative law principles operate to govern these relations beyond the law of contract.”

[271] In the present case, Eskom is well aware that the municipalities receive electricity from it for onward supply to the residents. It is certainly also aware of the adverse impact a sudden, substantial reduction in electricity supply would have on the residents’ fundamental rights. Those facts cry out for conduct on the part of Eskom that recognises this reality. Conduct that respects the residents’ constitutional rights that may be infringed by the termination or substantial reduction of electricity supply. Initially, it is for this simple point that I place reliance on Joseph.

[272] If, in the interim interdict proceedings, it were to appear unlikely that the intended review would succeed, that would detract from the requirement of a prima facie right. The residents complain that the substantial reduction in electricity supply was effected without any notice. Amongst others, this will be the basis of the PAJA review. So, the question is whether the residents can show – for purposes of the proposed review – that they were entitled to procedural fairness under PAJA.

[273] Let me immediately get rid of any possible issue around the fact that there is in existence a contract for the supply of electricity between Eskom and the municipalities. The interposition of the contract cannot alter what is essentially a statutory relationship governed by the ERA between these organs of state. It matters not that the contract makes provision for the reduction or termination of supply.

Of importance is the fact that section 21(5) of the ERA provides for the reduction and termination of supply. It would be sophistry to suggest that a reduction or termination of electricity supply was effected in terms of the contract of supply, and not in terms of section 21(5) of the ERA. Indeed, contracts interposed to serve purposes that are concurrently served by statutory fiat would be the simplest stratagem to avoid consequences of the improper exercise of public power. Therefore, the termination of supply is unquestionably the exercise of a statutory power.

I then move on to the question of the residents’ entitlement to procedural fairness.

[274] On that, Joseph provides an answer yet again. There, this Court first dealt with whether the termination of supply constituted administrative action. To that end, it had to answer the question whether the termination had a “direct, external legal effect” on the residents.

In answering the question affirmatively, it held:

“I need do no more on the facts of this case than endorse the broad interpretation accorded to [the phrase ‘direct, external legal effect’] by the Supreme Court of Appeal in Grey’s Marine, where it stated that the phrase ‘serv[es] to emphasise that administrative action impacts directly and immediately on individuals’. Indeed, a finding that the rights of the applicants were materially and adversely affected for the purposes of section 3 of PAJA would necessarily imply that the decision had a ‘direct, external legal effect’ on the applicants. Conversely, a finding that the rights of the applicants were not materially and adversely affected would have the result that section 3 of PAJA would not apply – barring, of course, a claim based on a legitimate expectation which was not raised in this case.”

[275] Joseph found it unnecessary to decide the case on the basis of the alleged infringement of the rights of access to housing and of dignity. It decided it on the basis that the tenants enjoyed the right to receive electricity as a basic municipal service. For the reasons I have stated already, in the instant matter, the several rights asserted by the residents are of relevance for purposes of the intended PAJA review. Let me set out the residents’ case on the intended PAJA review more fully.

[276] The Lekwa residents aver that Eskom reduced electricity to within NMD levels without any notice to them and, therefore, without any hearing. They also contend that actual electricity usage is 38% more than the NMD levels and that looking to historic NMD levels for justification for the reduction in electricity supply is irrational, unreasonable and divorced from reality.

The Ngwathe residents aver that Eskom’s conduct is not genuinely about wanting to keep within NMD levels for the reasons Eskom has given. Rather, Eskom is seeking to force the affected municipalities to settle their outstanding debts. Even though not pleaded explicitly, this implicates section 6(2)(e)(ii) of PAJA. This section renders administrative action that was taken for an ulterior purpose or motive susceptible to review.

[277] It matters not even if the Ngwathe residents have not specifically alleged that one of the grounds of review will be that Eskom took its decision for an ulterior purpose. Although ordinarily parties must be held to their pleadings, courts must not be dogmatic about this. Just under a century ago Innes CJ held in Robinson held:

“The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But within those limits the Court has a wide discretion. For pleadings are made for the Court, not the Court for pleadings. And where a party has had every facility to place all the facts before the trial Court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.”

[278] The Lekwa residents characterise this as a rationality issue. They plead that it is irrational of Eskom to reduce the electricity supply in an attempt to force Lekwa Municipality to pay its debt. Based on this, they then say the means chosen by Eskom are not rationally connected to the purpose sought to be achieved. That is plainly a case founded on section 6(2)(f)(ii) of PAJA.

[279] I am satisfied that the residents have not only demonstrated their entitlement to the pleaded fundamental rights, but have also set out grounds of review which are sufficient for this stage of the proceedings. Whether they will satisfy the reviewing court is for that court to determine.

[280] The first judgment adopts a restrictive approach to the nature of the rights that may be asserted. It claims in this regard, apparently for purposes of both the interim interdict and the intended PAJA review, that the residents can assert only the right to the supply of electricity by Eskom. I repeat that this is mistaken.

On first principles, the nature of the right envisaged by the definition of “administrative action” in section 1, read with section 4(1), of PAJA is not restricted. All that it need be is a right. It may take whatever form based on what we know of that concept in common law, statutory law or in respect of constitutionally protected rights.

The only question is whether the decision in issue has adversely (section 1) or has materially and adversely (section 4(1)) affected (or has the capacity so to affect (Greys Marine )) that right, whatever its nature.

It is unsurprising that Quinot and Maree say that—

“the impact element of the definition of administrative action should not be narrowly interpreted to refer only to private-law or common-law rights or to fundamental rights in the Bill of Rights, but also includes so-called ‘public-law rights’, which emerge from broad constitutional and statutory obligations placed on organs of state.”

[281] According to them, the envisaged right is so expansive as to include what are “obviously much broader than a traditional understanding of legal rights”. By this they are referring to what they call “public-law rights”. Generally when – outside of the Bill of Rights – the Constitution imposes obligations, it simultaneously creates a corresponding entitlement in respect of each such obligation.

Those are the public law rights the authors are referring to. De Ville says “[t]here is no natural limit to what can be understood as falling within the concept of ‘rights’”.

Likewise, I understand Hoexter and Penfold – who quote, amongst others, De Ville – not to place any restriction on the nature of the right that may be asserted for purposes of a PAJA review.

Again, let me emphasise that I am here not concerned with the question of “interest” or “legitimate expectations”. My focus is on rights. That is what is at issue.

[282] To summarise, and leaving out some of the pleaded bases of the intended PAJA review, the residents say that the decision that substantially reduced the electricity supply was taken without giving them notice. More specifically and in answer to the first judgment’s suggestion of the holding of a meeting that involved some of the residents, let me point out that the Ngwathe residents aver that a meeting was held between, amongst others, themselves and Eskom after the reduction decision had been taken. That does not assist Eskom. According to the Lekwa residents, no meeting was held.

[283] I am satisfied that the residents put up enough for purposes of showing a decision that has had an adverse impact on their rights. I do not understand the difficulty the first judgment has with that, especially since it accepts that the residents have pleaded an infringement of the right to life, the right to human dignity, the right of access to water, the right to basic education and the right to an environment that is not harmful to health or well-being.

[284] Let us strip all this to its bare essentials. A decision substantially reducing the supply of electricity was taken. That decision resulted in a “human catastrophe” characterised by gross violations of the residents’ fundamental rights. The residents were not given notice before the decision was taken. No fair process of whatever nature preceded the decision.

On first principles, the residents have shown that they have a viable case in the intended PAJA review; a case founded on section 6(2)(c) read with section 4(1) of PAJA. Why the first judgment does not see that escapes me. This is a far cry from the first judgment’s suggestion that my judgment relies on nothing more than “deplorable social and economic effects” that leave a judicial lacuna.

[285] It is so, as the first judgment points out, that Bato Star held that

“it is desirable for litigants who seek to review administrative action to identify clearly both the facts upon which they base their cause of action, and the legal basis of their cause of action”.

What I summarise above cannot possibly leave any doubt in Eskom’s collective mind as to the nature of the pleaded case. I am quite alive to the fact that more has been pleaded. But what I have highlighted is enough to show the existence of a viable PAJA review. So, what shortcomings, if any, there may be about whatever else has been pleaded by the residents cannot detract from this reality.

[286] And as I said, it would be perverse to suggest that the residents cannot rely on the same fundamental rights for purposes of the interim interdict. It is in respect of those same rights that – at the time they sought the interim interdict – the residents were suffering harm, which would be irreparable if the interim interdict were not granted. There is absolutely no reason to restrict the residents to the one right that the first judgment insists upon.

[287] The first judgment engages in a lengthy discourse about the content of the rights relied upon by the residents and whether that entails a claim by the residents to a given quantity of electricity. So as not to do an injustice to what the first judgment says, here it is:

“None of [the approaches by the High Court and me] commences with the correct starting point: what is the content of the right invoked, and, in particular, does the content of the right include a right enjoyed by the residents to be supplied with a given quantity of electricity by Eskom?”

This is an introduction to a much longer discourse on the content of the rights, including the impact of the rights on the state’s budget.

[288] I am at a loss as to why I must start with the content of the rights. I would understand the first judgment’s point if there was an issue about the nature of each of the rights that I highlight. Does it not infringe one’s dignity to cause them to drink water that is contaminated with faecal matter? Of course, it does. Does the real threat of loss of human life at hospitals and old age nursing homes occasioned by the reduction of electricity supply not constitute a threatened infringement of the right to life? It certainly does. If the flow of raw faeces into the Vaal River is not violative of the right to an environment that is not harmful to health or well-being, I do not know what is. Does the negative impact on schooling caused by the reduced supply of electricity not infringe the right to basic education? Surely, it does. The asserted rights have been established.

[289] Crucially, the residents’ case is not a claim to a specific quantity of electricity. Rather, read holistically, the residents’ fight concerns the process by which the substantial reduction in electricity supply, which has undeniably had catastrophic effects, came about. That is a far cry from the claim made by the first judgment, which is that the residents are claiming a specific quantity of electricity. Thus, it does not assist the first judgment to straitjacket my approach into having to “demonstrate that the content of the rights [my judgment] references includes the right of the residents to a particular level of supply of electricity”.

I make no such point. And I do not have to. For the reasons I have given, the following is enough to establish a viable case for a PAJA review. The residents enjoy constitutionally protected rights. Those rights have been materially and adversely affected by Eskom’s reduction decision. That decision was taken without following a fair procedure. The same fundamental rights and their infringement satisfy some of the requirements for the interim interdict. It is for this reason that I earlier said I do not need to rely on section 7(2) of the Constitution, but that I do so because of the first judgment’s insistence that Eskom had no obligation whatsoever towards the residents. So, from what I have said, the lengthy discourse in the first judgment about the content of rights at issue, the interpretation of the rights and the impact on the state’s budget does not arise from what I hold.

[290] In OUTA Moseneke DCJ had this to say about the nature of the right that must be proved in an application for an interim interdict:

“[T]he prima facie right a claimant must establish is not merely the right to approach a court in order to review an administrative decision. It is a right to which, if not protected by an interdict, irreparable harm would ensue. An interdict is meant to prevent future conduct and not decisions already made. Quite apart from the right to review and to set aside impugned decisions, the applicants should have demonstrated a prima facie right that is threatened by an impending or imminent irreparable harm.” (Emphasis added.)

[291] Irreparable harm would definitely ensue if the fundamental rights pleaded by the residents were not protected by an interim interdict. If there is no interdict, there can be no question that you cannot repair the continued indignity of denying people their usual supply of potable water and availing to them, instead, water full of faecal matter. I need make no illustration about the other rights that have also been, and continue to be, violated. It follows as a matter of course that the rights can only be protected through a reversal of the trigger event that resulted in their infringement. That trigger event is the reduction decision and the resultant actual reduction.

[292] In some cases the very question whether the right in issue does exist in law may be contested. In OUTA this Court held that “[i]f the right asserted in a claim for an interim interdict is sourced from the Constitution it would be redundant to enquire whether that right exists”. The rights invoked by the residents are sourced from the Constitution. So, their existence cannot be contested.

[293] The threshold for an interim interdict in terms of a breached right or in terms of a threat of breach is not showing the certain existence of the right. You need only show a right, though at the level of interim relief it may be “open to some doubt”.

In my view, the residents, who also demonstrate bases for seeking a review, have done more than this test requires. The first judgment takes the view that the residents have not proved the existence of a right to which the interim interdict application is pegged. It reasons that the provision of electricity is a means by which the rights to dignity, life, housing, food, healthcare, water and social security may be secured. It then says that “[a] particular means by which a right may be secured does not make that means the subject matter of the right”.

Yet again, this misses the point. The point is about Eskom’s conduct, which is the direct cause of the breach of the residents’ rights.

[294] The first judgment continues immediately after what I have quoted in the preceding paragraph:

“In the case of the right to housing (section 26) or rights to health care, food, water and social security (section 27), it is for the state to take reasonable measures within its available resources to achieve the progressive realisation of these rights. The state must determine the means by which these rights are progressively realised. But the means to realise the rights do not define the contents of the rights, not least because there may be entirely different, but equally permissible, means used to realise the same right. These rights must be progressively realised. How that is to be done is for the state to determine, provided the measures taken are reasonable. Thus, how the state may use the supply of electricity, through what agency and under what conditions to realise the rights in sections 26 and 27 of the Constitution, is for the state to determine.”

[295] This is a curious approach. Unlike socio-economic rights, the right to dignity, the right to life, the right to an environment that is not harmful to health or well-being and the right to basic education are not subject to progressive realisation in accordance with reasonable measures, which are taken within the state’s available resources. The residents aver that the infringements are as a result of Eskom’s conduct. And there is a basis for review; this, I dealt with above.

[296] I do not shy away from meeting the first judgment’s point frontally. Insofar as socio economic rights are concerned, the residents are asserting rights they were already enjoying. By way of one example, the residents are saying as a result of Eskom’s conduct, water that is supposed to be potable has faeces. Now they cannot drink water which – immediately before Eskom’s conduct – they could drink.

This has nothing to do with the point about the progressive realisation of socio-economic rights made by the first judgment. This reasoning applies equally to the adverse effect that Eskom’s conduct has had on healthcare services.

A reasonable apprehension of irreparable harm

[297] Coming to the second requirement, is there a reasonable apprehension of irreparable and imminent harm to the right if an interdict is not granted? In this regard, we must look at the impact Eskom’s conduct has had on the asserted constitutional rights. As I have said, the substantial reduction of electricity supply has had the effect of violating several of the residents’ rights guaranteed in the Bill of Rights.

At the time the interim interdict was sought and obtained, the violation was continuing. But for the interim interdict, the breach would have been ongoing and the harm suffered would certainly be irreparable. In fact, I believe that much of the suffering the residents say they have been subjected to may not be repaired merely by the restoration of electricity. For example, how do you repair the deeply offensive indignity suffered as a result of being forced to choose between drinking or using water contaminated with faecal matter, on the one hand, and not drinking or using that water at all, on the other? Bear in mind that a significant many in our country live in conditions of extreme poverty. Bottled water is not an option for them.

[298] An interim interdict serves the purpose of halting the continuation of the offending conduct which – for as long as it continues – exacerbates the rights violations. But, and I emphasise for those who might fixate on the bogeyman and think that my approach will cause Eskom to collapse, an interim interdict serves this purpose pending the final determination of the review. It can never be that just because there is a fear of collapse Eskom must be given a licence to ride roughshod over the rights of individuals. If a review of its decisions to reduce or terminate electricity supply is warranted, courts must not shy away from exercising their review power.

Balance of convenience

[299] On this subject, I must consider what this Court held in OUTA, which is that—

“[t]he balance of convenience enquiry must now carefully probe whether and to what extent the restraining order will probably intrude into the exclusive terrain of another branch of Government. The enquiry must, alongside other relevant harm, have proper regard to what may be called separation of powers harm. A court must keep in mind that a temporary restraint against the exercise of statutory power well ahead of the final adjudication of a claimant’s case may be granted only in the clearest of cases and after a careful consideration of separation of powers harm.”

[300] The Court added that

“one important consideration would be whether the harm apprehended by the claimant amounts to a breach of one or more fundamental rights warranted by the Bill of Rights”.

And it noted that OUTA was not such a case.

[301] The Court emphasised the fact that it was required to intrude into a policy laden and polycentric decision of the Executive. The decision was “about the ordering of public resources, over which the Executive Government disposes and for which it, and it alone, has the public responsibility”. And “the duty of determining how public resources are to be drawn upon and re-ordered lies in the heartland of Executive Government and domain”. All this is what informed the Court’s point on separation of powers harm.

[302] On my reading of OUTA, the fact that the harm grounding the interim interdict sought amounts to a breach of one or more fundamental rights protected by the Bill of Rights tempers the impact of what may otherwise be too stringent a test.

As Hoexter and Penfold observe, the overemphasis of “clearest cases” may have the effect of:

(a) being overly favourable to the public authority; and

(b) not paying sufficient regard to the significantly important factor of protecting fundamental rights.

Raboshakga says

“[t]he test adopted by the OUTA Court provides the space for a consideration of competing interests, in particular, the rights interpretation and enforcement”.

Indeed, OUTA does recognise – as an important consideration – the question

“whether the harm apprehended by the claimant amounts to a breach of one or more fundamental rights warranted by the Bill of Rights”.

[303] OUTA must be read in the context of the fact that what was at issue there was a highly policy laden decision by a member of the Executive arm of government and violations of fundamental rights protected in the Bill of Rights were not at issue. In the main, it is those two considerations that informed the Court’s final conclusion. I believe that the role to be played by this factor must depend on the nature of the Executive decision.

Ordinarily, this factor must apply on a sliding scale. The more policy laden or polycentric the decision, the more the role this factor must play in influencing the court’s determination. The lesser the policy-ladenness or polycentricity, the lesser the influence of this factor. But courts must never lose sight of the fact that this remains a balancing exercise.

Affected fundamental rights must always play a critical role in that balance. And in some cases the affected rights may be of such a nature and their breach so grievous that they may influence the decision in favour of the victim of the rights violation even in the face of a highly policy laden and polycentric executive decision. The ultimate question is: what is the outcome dictated by the balancing exercise?

[304] An example of this Court’s decision involving an interim interdict where rights violations took centre stage in the face of a policy laden decision of a municipality is South African Informal Traders.

There Moseneke DCJ held:

“[T]he eviction of traders involved constitutional issues of considerable significance. The ability of people to earn money and support themselves and their families is an important component of the right to human dignity. Without it they faced ‘humiliation and degradation’. Most traders, we were told, have dependants. Many of these dependants are children, who also have suffered hardship as the City denied their breadwinners’ lawful entitlement to conduct their businesses. The City has not disputed this. The City’s conduct has a direct and ongoing bearing on the rights of children, including their direct rights to basic nutrition, shelter and basic health care services.”

[305] In the present case the harm suffered, which was continuing at the time the interim interdict was sought and obtained, does amount to a breach of several fundamental rights protected by the Bill of Rights. The rights violations at issue are most atrocious and must count for quite a lot in the balancing exercise.

As I said earlier, very few rights violations surpass what the residents have been subjected to. On balance and without any hesitation, I conclude that the balance of convenience certainly favours the residents. Who would want to be subjected to this “human catastrophe” (e.g. to drink and use water contaminated with faecal matter and generally not cleaned properly even absent the faeces-related problem) whilst a review is winding its way through our court system?

In addition, it is not as though in the interim Eskom cannot provide the additional electricity. It can. It has done so well over the NMD for years; and what it has been doing is to levy penalties on the municipalities for electricity provided in excess of the NMD. Has anything changed which now makes it impossible for Eskom to continue doing so?

[306] The Ngwathe residents refer to and quote from correspondence in which Eskom – in so many words – indicated to at least one of the municipalities its preparedness not to lower supply to levels that are within the NMD if the municipality paid its outstanding debt by a stipulated deadline. Therefore, all this appears to be a well calculated debt collection strategy.

Surely, this must be a relevant factor to the balance of convenience element. It tends to show that the skies will not fall if – purely in the interim – Eskom continues to provide electricity at above NMD levels. I would sooner have the residents of the municipalities – purely on an interim basis – living lives that are as near as possible to wholesome, than subject them to the current “human catastrophe”.

[307] I am not unmindful of Eskom’s version that being required to supply electricity above NMD levels will put the dilapidated infrastructure of the municipalities and the national grid under additional strain. But what Eskom says in this regard rings hollow in the face of its attempt to extract payment on pain of effecting a reduction in the electricity supply. Put differently, indications are that – had payment been forthcoming – Eskom would have supplied electricity above NMD levels notwithstanding the concerns it now puts forth.

Other satisfactory remedy

[308] I dealt with this extensively above. The High Court’s acceptance of the fact that this requirement has been met must stand.

[309] In conclusion, leave to appeal must be granted, but the appeal must fail.

Order

[310] The following order is made:

1. Leave to appeal is granted.
2. The appeal is dismissed with costs, such costs to include the costs of two counsel.

Summary

“Interim interdicts — nature of prima facie right — rights in Bill of Rights — content of rights — whether rights established — role of final relief in interim orders

Bulk electricity supply — reduction of electricity supply — section 21(5) of the Electricity Regulation Act

Pleadings — interpretation and purpose of pleadings — sufficiency of pleaded case

Section 7(2) of the Constitution — duty to respect rights — duties of different organs of state — role and functions of local government — section 152 and 153 of the Constitution

Section 7(2) of the Promotion of Administrative Act — exhaustion of internal remedies — section 30 of the Electricity Regulation Act

Subsidiarity — direct invocation of the Constitution or not — electricity regulatory framework

Grounds of review — procedural fairness — rationality — ulterior motive

Balance of convenience — separation of powers — polycentricty — rights violations — stability of national grid”

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MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

“On Friday, 23 December 2022 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the Supreme Court of Appeal. The Supreme Court of Appeal dismissed an appeal against the judgment and order of the High Court of South Africa, Gauteng Division, Pretoria (High Court). The application concerned whether the lower courts were correct to order Eskom, the applicant, to supply electricity to defaulting municipalities pending the institution of review proceedings.

The matter originates from two applications that were joined together before the High Court. In both applications, Eskom is the applicant. In the first application, the first respondent is the Vaal River Development Association (Pty) Limited, a non-profit organisation representing the residents of Ngwathe Municipality. In the second application, the first respondent is Lekwa Ratepayers Association, a non profit organisation representing the residents of Lekwa Municipality. The first respondents in both applications are referred to as the “residents” or “Associations”. The remaining respondents did not participate in the proceedings.

In 2008, Eskom concluded a supply agreement with Ngwathe Municipality in terms of which it would supply bulk electricity to the municipality in accordance with the Notified Maximum Demand (NMD) stipulated in the supply agreement. The NMD is a contractual value of demand which binds Eskom and the customer (the municipalities). In 1981, Eskom concluded a similar supply agreement with Lekwa Municipality. In 2010, the contracted NMD for Lekwa Municipality was increased. The municipalities’ consumption of and need for electricity, however, exceeds the NMD supply levels agreed to. Eskom has been supplying electricity in excess of the contracted NMD to both municipalities for an extended period of time and charging monthly penalties to the municipalities. Despite these penalties, the municipalities have failed to pay Eskom for the electricity supplied to them and remain in serial default.

In 2020, Eskom decided to reduce the bulk electricity supply to the municipalities to the NMD levels set out in the supply agreements (reduction decisions). This meant that it would no longer supply electricity in excess of the contracted NMD levels. It informed the municipalities but did not inform the residents. This had a significant impact on essential services in the municipalities, such as water supply and the functioning of sewage works. Thus, the Associations instituted applications before the High Court on the residents’ behalf.

The High Court held that sufficient electricity supply is inextricably intertwined with the rights to healthcare, food, water and social security and therefore found that the Associations had established a prima facie right. Second, the Court found that the limited electrical supply had an adverse effect on all basic municipal services, resulting in irreparable harm. Third, the High Court determined the balance of convenience to favour the residents on account of the fact that Eskom’s prejudice was financial, compared with the irreparable harm suffered by the residents. Finally, the Court held that Eskom has a monopoly over the supply of bulk electricity leaving no other satisfactory remedy available to the residents other than approaching the Court for relief. The High Court ordered Eskom to increase, alternatively to restore the maximum electricity load supply to the level supplied prior to its decision pending final adjudication of the Associations’ application for a review of Eskom’s decision in terms of the Promotion of Justice Act 3 of 2000 (PAJA) and/or legality.

Aggrieved, Eskom sought leave to appeal to the Supreme Court of Appeal. The Court, relying on Resilient Properties (Pty) Ltd v Eskom Holdings SOC Ltd (Resilient), held that, given the nature and source of Eskom’s power, the exercise of this power amounted to administrative action for the purposes of section 33 of the Constitution and PAJA. The Court held the facts in Resilient were similar to the present case, that the principles enunciated therein were of equal application, that all the requirements for granting interim interdictory relief were established and that the High Court correctly granted the interim interdicts. The Supreme Court of Appeal also referred to section 41(3) of the Constitution and the Intergovernmental Relations Framework Act 13 of 2005 (IRFA). It held that Eskom was obligated to take reasonable measures to resolve the intergovernmental dispute it had with the municipalities before reducing the bulk electricity. The appeal was dismissed.

In the Constitutional Court, Eskom submitted that the question whether the application ought to be resolved in terms of IRFA or the Electricity Regulation Act 4 of 2006 (ERA) raises a constitutional issue. Eskom further submitted that the lower courts compelling it to supply sufficient electricity to the municipalities is at odds with the Constitutional Court’s decision in Mazibuko v City of Johannesburg where the Constitutional Court held that in terms of section 26(2) of the Constitution, the state must take reasonable legislative and other measures to progressively realise the right of access to adequate housing within available resources. Eskom contended that the lower courts failed to consider that (a) its circumstances have changed and it no longer has capacity to supply electricity exceeding the contracted NMD and; (b) the orders of the lower courts put a strain on the national grid and the electricity infrastructure. Eskom also contended that the municipalities have, as a result of the lower courts’ decisions, been absolved of their constitutional obligations. Eskom submitted that section 30 of ERA provides an internal remedy to resolve such disputes. Thus, the internal remedies provided by ERA should have been utilised before invoking IRFA and PAJA and approaching the courts.

The Associations submitted that the order of the High Court does not compel Eskom to exceed the agreed upon NMD. Rather, it is an interim decision pending a review of Eskom’s decision to decrease the electricity supplied to the municipalities. The residents submitted that they sought to enforce their public law rights because Eskom is an organ of state. Therefore, its decisions constituted administrative action and are reviewable under PAJA. As to the application of ERA, the residents contended that it was incumbent on Eskom to approach the National Energy Regulator (NERSA) and seek to resolve the dispute. The residents further contended that citizens have a public law right to electricity. Additionally, electricity supply is required to realise other fundamental rights such as the rights to water, education and a healthy environment.

The minority judgment, penned by Unterhalter AJ (Kollapen J, Majiedt J and Mlambo AJ concurring) found that the matter engaged the Constitutional Court’s constitutional jurisdiction. It found that determining Eskom’s constitutional and statutory duties and to whom these duties are owed raised a constitutional matter of importance.

The minority judgment then determined whether the lower courts were correct to grant the interim relief to the residents. The minority judgment analysed the standard required to demonstrate a prima facie right. The test is whether the applicant has furnished proof which, if uncontradicted at trial (here, in the review), would entitle the applicant to final relief. This was reiterated by the Constitutional Court in Economic Freedom Fighters v Gordhan. Thus, to secure interim relief, an applicant must establish their prospects of success of obtaining final relief to the required standard. There is thus a connection between interim relief and the likely outcome of the final proceedings.

The minority judgment disagreed with the majority judgment’s reliance on National Gambling Board v Premier, KwaZulu-Natal. The minority judgment held that National Gambling Board was only authority for the proposition that a court may grant interim relief even though it lacks jurisdiction to decide the main dispute. It is not authority for the position that the outcome of an application for interim relief entails that no final determination of the rights of the parties can occur. According to the minority judgment, if an application is premised upon an incorrect point of law, there is no reason why the court should not decide the legal question and dismiss the application. The question of law in the present case was whether the residents have a right to the supply of electricity from Eskom, and hence whether the Associations have prospects of success in the review. The minority judgment answered this question in the negative on the following bases.

First, the electricity industry is governed by ERA. ERA sets out Eskom’s duties and grants NERSA wide regulatory competences over Eskom, municipalities and the residents of municipalities as end users insofar as the electricity industry is concerned. NERSA’s powers include adjudicating disputes that may arise between these parties. Furthermore, the objects of ERA make it evident that any duty imposed on Eskom to provide electricity cannot be separated from its fiscal responsibilities so as to protect Eskom as the nation’s electricity provider. Municipalities play a central role in the distribution of electricity in the form of municipal services. This was confirmed by the Constitutional Court in Joseph v City of Johannesburg and is reaffirmed, inter alia, by the Constitution, the Local Government: Municipal Structures Act 117 of 1998 (Structures Act), the Local Government: Municipal Systems Act 32 of 2000 (Systems Act), as well as ERA. This regulatory framework gives effect to the constitutional duty of municipalities to supply electricity directly to their residents. Having set out the regulatory framework, the minority judgment asks on what basis Eskom can be held liable for providing municipal services (electricity in this case) directly to the residents. In other words, what rights do the residents claim to have that are enforceable against Eskom?

To decide this question, the minority judgment considered the “public law right to electricity” pleaded by the Associations. The minority judgment also considered the Associations’ averments that electricity is a means by which the rights in the Bill of Rights are realised. It found that the Associations had failed to show that the contents of the rights (rights to life, dignity, water, education and a healthy environment) they invoked included the right to the supply of electricity by Eskom. The minority judgment disagreed with the majority judgment’s position that it suffices for a court to examine the facts that have been pleaded as to the consequences of Eskom’s actions and derive the infringement of rights from those consequences. It found this conclusion to have missed a necessary step in its reasoning, namely, whether Eskom owes a duty to the residents to supply them with the electricity. The failure to assess the contents of the rights of the residents and Eskom’s correlative duties resulted in the unsustainable legal conclusion and reasoning of the majority judgment. As a result, the lower courts and the majority judgment erroneously ascribed municipal constitutional obligations to another organ of state, Eskom.

Second, the minority judgment considered the application of section 7(2) of the Constitution, as posited in the majority judgment. It held that indeed, as an organ of state, Eskom is bound to section 7(2). However, there is no right to electricity in the Bill of Rights. The minority judgment referred to Joseph. The Constitutional Court confirmed that the constitutional duty resting upon a municipality to provide basic services does not derive from the Bill of Rights. It finds its origins in the constitutional duties of the municipalities to provide municipal services. It found the residents’ contention that the supply of electricity is a means to realise other fundamental rights to be unsustainable. According to the minority judgment, a particular means by which a right may be secured does not make that means the content of the right. The state must determine the means by which these rights are progressively realised, not the courts. Ultimately, the minority judgment found that section 7(2) cannot be used to ascribe to a particular organ of state the duties of another state organ. This ignores an entire constitutional scheme that sets out the constitutional obligations of each organ of state. According to the minority judgment, the manner in which the majority judgment uses section 7(2) undermines this constitutional scheme. Furthermore, the majority judgment applies section 7(2) without establishing the residents’ right to be supplied electricity by Eskom. That cannot be done.

The minority judgment also considered the majority judgment’s position that the residents need not show that they have a right to claim from Eskom, the supply of electricity that it has reduced. The minority judgment found this position to be mistaken. According to the minority judgment, the right of the residents to claim electricity from Eskom is not a claim that stands apart from the rights in the Bill of Rights they relied upon. If that claim forms no part of the contents of the rights that the residents invoke, then they have no claim in law deriving from these rights. The minority judgment found the conclusion reached by the majority judgment that the right to life or to dignity not only found a claim to specific state resources but also to such resources as might be required to maintain a certain level of welfare is contrary to Constitutional Court’s decision in Government of the Republic of South Africa v Grootboom.

Third, the minority judgment considered whether the residents had made out a case for procedural fairness. In other words, were Eskom’s reduction decisions procedurally unfair? The minority judgment found that the pleaded case did not support the finding of the majority judgment. The minority judgment found that in the case advanced by the Associations in their account of the residents’ prima facie rights, they made no mention of procedurally fair administrative action. The absence of a properly pleaded case notwithstanding, the majority judgment held that the reduction decisions constitute administrative action. The minority judgment disagreed with this finding. The central question, according to the minority judgment, is this: do the residents have rights to assert against Eskom to restore the supply of electricity that the reduction decisions have reduced? The minority judgment answered this question in the negative because Joseph confirmed that municipal services, such as electricity, find their origins in municipal constitutional obligations. Eskom, which does not fall under the umbrella of local government does not have such a duty. Thus, Eskom had no duty to extend procedural fairness to the residents when taking the reduction decisions.

Fourth, the minority judgment considered the issue of subsidiarity. The minority judgment held that the residents failed to have recourse to the regulatory framework governing electricity supply, in particular ERA. The minority judgment disagreed with the majority judgment that the question of subsidiarity can do no more than cast some doubt on the residents’ prima facie rights. According to the minority judgment, the entire regulatory framework for electricity supply places constitutional obligations on municipalities as the sphere of government responsible for the supply of electricity to its residents. Eskom’s duties are designed to cohere with this scheme. ERA provides the statutory means by which residents may enforce their rights. Therefore, the residents’ recourse under ERA forms part of the regulatory and constitutional design and triggers the application of the principle of subsidiarity. The minority judgment accordingly found that the principle of subsidiarity excluded the claims of the Associations.

The minority judgment also considered the application of section 7(2) of PAJA which concerns the exhaustion of internal remedies before approaching the courts. It found that the residents had failed to make use of the internal remedy provided for in section 30 of ERA (the adjudication of disputes by NERSA). Thus, according to the minority judgment, the residents also failed to exhaust internal remedies. The minority judgment disagreed with the majority judgment’s conclusion that section 7(2) of PAJA plays no role in the determination of applications for interim relief pending a PAJA review. In this respect too, the minority judgment emphasised the relationship between an application for interim relief and the prospects of the applicants in securing final relief. It found that the majority judgment continuously failed to have regard to this. According to the minority judgment, a failure to exhaust section 30 means the court hearing the review will have no power to review the reduction decisions; save for exemption upon a showing of exceptional circumstances. This issue is not answered by saying that the application for interim relief is not the review.

Finally, the minority judgment considered the issue of the balance of convenience. The minority judgment recognised that the harm to human health and well-being suffered by the residents without interim relief may appear greater than the country’s collective interest in the integrity of the national grid. However, it found that this equation failed to take account of the true source of the problem: the municipalities. According to the minority judgment, if replicated, the majority judgment’s findings will require Eskom to discharge of the duties of municipalities all over the country that are in the same position as those in this case. This will ultimately give rise to considerable risk of the national welfare.

In the result, the minority judgment would have granted leave to appeal and upheld the appeal in both applications.

A majority judgment penned by Madlanga J, and concurred in by Mathopo J, Mhlantla J, Theron J and Tshiqi J, held that this matter is less about the residents’ right to a direct supply of electricity by Eskom (which is wrongly the focus of the minority judgment); it is about Eskom’s decision which – to the agreement of even Eskom – was taken without notice to the residents. In short, the majority judgment makes the point that the reduction decision was taken without following a fair procedure, something that is impermissible in terms of PAJA. That decision has had an adverse impact on the residents in that it has resulted in the breach of several of their rights protected by the Bill of Rights: the right to life, the right to dignity, the right of access to water, the right to basic education and the right to an environment that is not harmful to health or well-being. That renders Eskom’s decision reviewable in terms of section 6(2)(c) of PAJA. So, the residents have pleaded a viable case for purposes of the intended review. The only question that remains is whether the residents proved a case for the interim interdict that was granted.

The majority judgment disposed of the notion advanced by the minority judgment that the majority decision will imperil the national grid to the detriment of the general public. The majority judgment disclaimed that it does not hold that the residents are entitled to a continued supply of electricity in quantities that guarantee that the rights they assert are not infringed even in circumstances where Eskom is entitled to terminate or reduce supply in terms of section 21(5) of the ERA. The majority clarified that the extent of its holding is, pending the determination of the proposed PAJA review of Eskom’s exercise of the section 21(5) power, the residents must be afforded interim relief that directs Eskom to restore electricity supply to what it was before the reduction. This observation is crucial, because it cuts across what the minority judgment perceived as an ominous threat of a total collapse if Eskom is not allowed to reduce or terminate supply where that is warranted. The majority judgment declared the threat of collapse a bogeyman which should seen for what it is. It observed that the residents’ case does not stand in the way of warranted section 25(1) reductions or terminations of supply; that reductions or terminations must take place in a manner not susceptible to a PAJA review; and that the majority decision is no bar at all to warranted section 21(5) reductions or terminations. In relying on MEC for Health, Eastern Cape v Kirland Investments, the majority pronounced that Eskom, as an organ of state, bears a higher duty “to respect the law, to fulfil procedural requirements and to tread respectfully when dealing with rights. . . . It must do right, and it must do it properly”.

Madlanga J explained that all that majority judgment says is that Eskom is perfectly entitled to avert any ominous grid collapse that it perceives, but because ours is a constitutional state, Eskom must do so in accordance with the Constitution and the law. It is neither above the law, nor a law unto itself. From where the residents are situated, alleging as they do that Eskom did not give them notice, the substantial reduction came out of nowhere. On their uncontroverted version of the facts, they were denied even the very basic opportunity to make representations to Eskom. The importance of notice and an opportunity to make representations cannot be overemphasised. The opportunity is so important that authority says it must not be denied, even where it is thought the affected person cannot possibly have anything to say or that whatever they may say is not likely to influence the decision.

The majority accepted that where reductions or terminations of supply are warranted, by all means it is open to Eskom to act in terms of section 21(5) of ERA. There will thus be no threat of collapse of the national grid. Of course, Eskom must act in accordance with the law and the Constitution. And that includes compliance with PAJA. If it does not, it must be sure that affected residents will litigate.

Reverting to the question whether the residents have made out a case for the interim interdict, the majority judgment recounted that a litigant seeking an interim interdict must show: a prima facie right even if it is open to some doubt; a reasonable apprehension of irreparable and imminent harm to the right if an interdict is not granted; that the balance of convenience favours the grant of an interim interdict; and that the applicant has no other satisfactory remedy.

Here, the majority concluded that the residents have shown several constitutional rights that were infringed as a result of the reduction decision; and, but for the interim interdict, the infringements would have continued unabated. The deplorable nature of the violations amply demonstrates that the harm suffered by the residents would be irreparable. Ergo, the majority judgment determined that the balance of convenience unquestionably favours the residents; and, accordingly, would have the residents – purely on an interim basis – living lives that are as near as possible to wholesome, than subject them to the current “human catastrophe”. The majority judgment held that the residents have established a prima facie right.

On the majority’s reading of the minority judgment, the minority says there must be a direct correlation between what is sought to be restored through an interim interdict and the right alleged to have been breached; or, in other words, the right alleged to have been breached must be a right to the supply of electricity in order for a restoration of supply to be competent.

The majority judgment reasoned that the minority judgment’s proposition fails to take into account the fact that multiple rights protected in the Bill of Rights can be violated by a single action – with those rights not always being squarely or perfectly correlative or corresponding. The majority said that what informs the need for their vindication is the fact of their violation and, in the present matter, it is the sudden substantial reduction of electricity that resulted in the rights violations. The logical corrective measure to address the rights violations is the reversal of the causative act, namely the restoration of the usual electricity supply.

On the balance of convenience, the minority judgment emphasised the risk of collapse of the national grid. The majority judgment, however, characterised Eskom’s reliance on this risk as nothing but a subterfuge, with the truth being that Eskom did not fear a risk of the grid collapsing if the supply to the two municipalities was not reduced. The majority pointed out that Eskom promised one of the municipalities that it would not effect the reduction if that municipality paid the arrears owed to Eskom, rendering the reduction decision a thinly veiled debt collection mechanism. Thus, the cry about the risk of collapse of the national grid rings hollow in the face of Eskom’s attempt to extract payment on pain of effecting a reduction in the electricity supply.

The residents’ evidence was also to the effect that there was no other satisfactory remedy. The High Court accepted this, and so did the Supreme Court of Appeal. The majority concluded that there is no appeal against that holding.

Therefore, on the majority’s holding, the residents have satisfied all the requirements for an interim interdict and the appeal fails.”