United Democratic Movement and Others v Eskom Holdings SOC Ltd and Others; Democratic Alliance v National Energy Regulator of South Africa and Others; South African Local Government Association v National Energy Regulator of South Africa and Others (Consolidated)

Three consolidated applications were brought challenging loadshedding and NERSA tariff determinations. The UDM and 18 other applicants (including political parties, trade unions and civil society organisations) challenged the electricity crisis and sought humanitarian relief. The DA challenged loadshedding as unconstitutional and sought review of NERSA's tariff determination of 12 January 2023. SALGA also sought review of the same tariff determination. The applications centered on two themes: (1) declarations that government failures leading to loadshedding breached constitutional rights, and (2) review of NERSA's tariff methodology and decision. An interim order had been granted on 5 May 2023 requiring the Minister to ensure no loadshedding at hospitals, schools and police stations by 31 January 2024. The UDM subsequently withdrew Part B of its application, leaving only the DA and SALGA applications on loadshedding and tariff reviews. Evidence showed systematic governmental failures since the late 1990s including: failure to open the energy sector to competition, delays in building Medupi and Kusile power stations, running plants without maintenance, insufficient tariffs, and failure to protect Eskom from corruption and state capture. The Minister of Electricity was appointed in March 2023 with powers over generation capacity.

• Whether the failure to provide consistent electricity supply constitutes breaches of constitutional rights in the Bill of Rights
• What constitutional rights are infringed by loadshedding and the energy crisis
• Whether declaratory orders regarding constitutional breaches should be granted
• What just and equitable remedies should follow declarations of constitutional invalidity
• Whether a Special Master should be appointed to oversee implementation of the Electricity Action Plan
• Whether NERSA's tariff determination of 12 January 2023 should be reviewed and set aside
• Whether NERSA failed to consider corruption, fraud and wasteful expenditure at Eskom in determining tariffs
• Whether NERSA should have considered cross-subsidisation at the MYPD stage rather than the ERTSA stage
• Whether the court should exercise judicial restraint given separation of powers concerns

1. Declared that governmental failures regarding electricity constituted breaches of constitutional obligations to protect Bill of Rights. 2. Declared specific infringements of rights in sections 10, 11, 12, 24(a), 27(1)(a), 27(1)(b) and 29(1)(a). 3. Ordered Minister of Electricity to ensure no loadshedding at public health establishments, public schools, and police stations by 31 January 2024. 4. Dismissed review applications against NERSA's tariff determination of 12 January 2023. 5. Each party to pay own costs.

1. Section 7(2) of the Constitution imposes a duty on the State and organs of state to respect, protect, promote and fulfil the rights in the Bill of Rights. 2. Systemic failures by organs of state that result in loadshedding and inability to provide consistent electricity supply can constitute breaches of constitutional obligations where they unjustifiably infringe Bill of Rights guarantees. 3. While the Constitution does not expressly provide for a right to electricity, loadshedding can infringe other guaranteed rights including dignity, life, security, environment, healthcare, water, food and education. 4. Once unconstitutional conduct is found, a court must make a declaration of invalidity pursuant to Section 172(1)(a), though the granting of further remedial relief involves discretion guided by what is just and equitable. 5. Courts must balance the need for effective constitutional remedies against separation of powers and should not unduly intrude into the executive sphere, particularly on matters implicating national budgets and economic policy. 6. Just and equitable relief may include supervisory orders directed at specific organs of state to ensure constitutional compliance, particularly regarding vulnerable institutions. 7. NERSA's two-stage tariff determination methodology is lawful and rational: allowable revenue is determined at the MYPD stage based on efficient forward-looking costs; actual tariffs per customer category including cross-subsidisation are determined at the ERTSA stage. 8. Section 15(1)(e) of the Electricity Regulation Act permits but does not mandate consideration of cross-subsidisation at any particular stage; NERSA may rationally determine cross-subsidies at the ERTSA stage after determining allowable revenue. 9. NERSA need not budget prospectively for corruption, fraud and wasteful expenditure at the revenue determination stage; such matters can be addressed retrospectively through the Regulatory Clearing Account mechanism.

The court observed that 'if courts could end loadshedding, they would but they cannot and it is not their function.' The court noted the respondent organs of state appeared engaged in a 'blame game' with each blaming others for the crisis. The court commented on the socio-economic devastation caused by loadshedding as detailed in the secret Cabinet memorandum, including GDP losses of R1.3 billion per day in 2023, R61-77 billion in lost tax revenues, severe impact on manufacturing, and threats to the social fabric of the nation. The court observed that learners from poor and previously disadvantaged communities remain 'as prejudiced and disenfranchised as there had been in a pre-constitutional era' when schools must close due to loadshedding. The court noted that the Minister of Electricity's affidavit 'somewhat underplays the seriousness of the situation' and that his statements about hospital exemptions were 'nothing new' from earlier affidavits. The court observed that despite all the Electricity Action Plan interventions being put in place, 'they all envisage some relief at some future date (only).' The court recognised the 'vexing question' of what just and equitable relief should follow declarations of unconstitutionality in circumstances where practical implementation is complex. The court invoked Harms JA's injunction in Modderklip that 'Courts should not be overawed by practical problems' and have 'a duty to mould an order that will provide effective relief to those affected by a Constitutional breach.'

This case represents a landmark constitutional challenge to loadshedding in South Africa, with the court declaring that the electricity crisis constitutes ongoing breaches of multiple constitutional rights. The judgment carefully navigates separation of powers concerns, granting declaratory relief and limited remedial orders for vulnerable institutions (hospitals, schools, police stations) while declining to appoint a Special Master or make broader structural interventions. The court recognised that while the Constitution does not expressly provide for a right to electricity, it guarantees other rights that cannot function without electricity. The judgment confirms that courts must grant just and equitable relief following declarations of unconstitutionality, but must exercise restraint in not trampling on the executive sphere. On the tariff review aspect, the judgment provides important clarification on NERSA's two-stage tariff determination methodology and confirms the rationality of considering cross-subsidisation at the ERTSA rather than MYPD stage. The judgment illustrates the limits of judicial power in addressing complex socio-economic crises while affirming the constitutional accountability of organs of state.