Interim interdicts and their effect on the governance of electricity supply : the role of section 30 of the South African Electricity Regulation Act in dispute resolution

Abstract

The South African Constitution, over and above providing for rights and obligations, makes provision for the relevant organs of state against which these rights and obligations may be enforced (the constitutional scheme). There have been instances where the duties of the spheres of government are conflated because of the proximity of their functions. However, organs of state are still obligated to give effect to the constitutional scheme in the exercise of their duties. The aim of this study is to investigate investigates whether interim interdicts instituted by the residents of municipalities (residents) against Eskom Holdings SOC Ltd (Eskom) for the supply of electricity, have ¬ as a result of the interim relief granted by the courts ¬ resulted in the Judiciary subverting the constitutional scheme and regulatory framework. To achieve this aim, the study examines the constitutional and regulatory scheme governing the supply of electricity. The study then investigates how interim interdicts, instituted against Eskom for the supply of electricity to the residents of municipalities, are decided by the courts. This is followed by an assessment to determine whether the Regulator can play a role in resolving electricity supply disputes between municipalities, the residents of municipalities and Eskom. Finally, the study examines whether section 30 of the Electricity Regulation Act (ERA) provides an alternative mechanism for dispute resolution where a temporary (interim) resolution is required, while upholding the constitutional and regulatory scheme. The research was conducted because there isn’t currently a comprehensive analysis investigating whether such interim interdicts potentially subvert the relevant regulatory framework. Additionally, the dispute resolution mechanism provided in section 30 of the ERA does not seem to be fully utilised by the residents of defaulting municipalities. Using a qualitative method in the form of pure desktop study, the research revealed that any “right to electricity” arises out of a municipal constitutional obligation to provide municipal services. The research further revealed that, even at the interim relief stage in applications for an interim interdict, there is no prima facie right to electricity that is directly enforceable against Eskom. Thus the courts deciding that there is in fact such a right, results in an interpretation of a prima facie right outside the bounds of legality. The research further revealed that section 30 of the ERA provides a dispute resolution mechanism that allows the Energy Regulator to provide relief to parties requiring a temporary dispute resolution in electricity supply disputes. The research also revealed that it is compulsory for aggrieved parties to first refer a dispute to NERSA in terms of this provision for them to meet the last requirement for an interim interdict, namely there must be no other remedy.