Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
The mooted National State of Disaster – ANC desperation or cynical public relations exercise?
News that the National Executive Committee (NEC) of the ANC has urged the ANC government to declare a National State of Disaster to address the energy crisis (a crisis created by the self-same ANC government) has – predictably – been met with extreme scepticism and even outrage.
While there are good reasons to be sceptical about this proposal, this is not primarily because there is any chance that the government will use its disaster management powers to ban Woolies chicken or the sale of alcohol, or to impose other restrictions of the kind imposed during the Covid-19 crisis(as some commentators have suggested), but rather because a declaration of a State of Disaster will largely be meaningless as it will not grant the government the kind of additional powers that would allow it to circumvent their existing legal obligations.
In any event, it is far from clear that a declaration of a State of Disaster to deal with the energy crisis will be lawful.
This is because such a declaration may not meet the legal requirements for the declaration of a national disaster, as set out in the Disaster Management Act. In terms of the Act, a national disaster may be declared in narrow circumstances in order to deal effectively with a disaster. The Act defines a “disaster” as a:
progressive or sudden, widespread or localised natural or human-caused occurrence which causes or threatens to cause death, injury or disease; damage to property, infrastructure or the environment; disruption of the life of a community; and is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.
While this definition is quite broad, and on a generous reading may thus apply to the Eskom crisis, reading the Act holistically, it is at best unclear whether it applies to a situation where the “disruption of the life of the community” was caused by many years of government mismanagement, corruption and incompetence and could only be fixed by addressing government mismanagement, corruption and incompetence.
This view is bolstered by the fact that section 2(1)(b) of the Act makes clear that the Act does not apply to situations where the “disaster” can be “dealt with effectively in terms of other national legislation aimed at reducing the risk, and addressing the consequences of an occurrences of that nature”.
I would argue that the Act was not meant to address the kind of systemic governance failures that caused the ongoing energy crisis and makes it close to impossible to fix it, but rather to deal with unforeseen situations that could not be dealt with effectively by relying on the existing legislation.
In the case of Eskom, the problem is not that the government lacks the legal power to fix the problem, but rather that it has for many years lacked the political will to do so, and that it has not done its job to ensure that Eskom is run competently and free of serious corruption.
Put differently, the problem is linked to systemic governance failures over many years – something that cannot be fixed by declaring a State of Disaster and taking a few legal shortcuts.
In light of the above, a declaration of a State of Disaster to deal with the energy crisis may be vulnerable to legal challenge on the basis that the Disaster Management Act does not apply to the government-created load shedding crisis.
But if we assume for the moment that I am wrong, and that the declaration of a National State of Disaster to deal with the energy crisis will withstand judicial scrutiny, it is not clear such a move will empower the government to do more than it is currently doing to help fix the problem.
In fact, the declaration of a National State of Disaster may give no, or very few, additional powers to the government to deal with the crisis.
The mistake many commentators make is to assume that a declaration of a National State of Disaster to deal with the energy crisis will allow the government to wield as much additional power as it did during the Covid state of disaster. But the two situations differ markedly.
Most notably, unlike with the Covid crisis, the generation and distribution of electricity is extensively regulated by various pieces of legislation. What must be understood is that this legislation will remain in place and will remain binding on all. It is therefore misguided to believe that the declaration of a National State of Disaster will allow the government to bypass binding legislation to speed up the resolution of the energy crisis.
It is important to note that section 26(2)(b) of the Disaster Management Act makes clear that the national executive must deal with a national disaster in terms of existing legislation and contingency arrangements.
Where a National State of Disaster is declared, this can only be “augmented by regulations or directions” made in terms of the Act. But the government is not empowered to use such regulations and directions to take shortcuts to circumvent existing legislation. (This may in some cases be permissible if the government declares a state of emergency in terms of section 37 of the Constitution, but that is a different matter altogether.)
For example, the government would not be permitted to use the declaration of a National State of Disaster to circumvent the provisions of the National Energy Regulator Act of 2004 in order to undo electricity price increases adopted by Nersa. Similarly, it would not be able to circumvent the provisions of the Electricity Regulation Act of 2006, to speed up the allocation of electricity generating licences.
It has been suggested that the declaration of the National State of Disaster is necessary to make additional funds available to deal with the crisis. This is, of course, nonsense.
Nothing prevents the Minister of Finance from allocating additional funds for the energy crisis in the annual budget to be tabled on 22 February. It is certainly not necessary to declare a State of Disaster for him to be able to do so.
Moreover, section 16(1) of the Public Finance Management Act allows the Minister of Finance to authorise additional expenditure “which cannot, without serious prejudice to the public interest, be postponed to a future parliamentary appropriation of funds”.
Last, it has been suggested that the declaration of a State of Disaster will allow for a relaxation of the procurement rules to speed up vital Eskom procurement. But, once again, it is not necessary to declare a National State of Disaster to do so, as existing legislation already bestows a wide discretion on the Treasury to amend procurement rules.
Most notably, section 3 of the Preferential Procurement Act allows the Minister of Finance to exempt an organ of state such as Eskom, from the provisions of that Act if it is in the public interest to do so.
I would argue that the proposal to declare a National State of Disaster to deal with the energy crisis could, at best, be read as an act of desperation on the part of the governing party, based on a misreading of the powers such a declaration will bestow on the government.
At worst, it is a cynical public relations exercise to try to convince voters that the government is doing something about the crisis, knowing that it is impossible to fix the problem in the next year or two.
