From whence does Soweto and Andile’s claim of the right to free electricity arise?

Eskom has confirmed that there will be no load shedding on Monday and the probability remains low for the rest of the week, good news to many. Picture: Pixabay

A week in South Africa has proven not to be sufficient for the countryʼs demagoguery politics. And since we are in the age of amendments, perhaps we should also amend our calendar in order to make enough room for all the politics of the country.

Nostalgic of the 1976 student uprising that amongst other things brought an overhaul to the Apartheid Bantu Education system (rightfully so), Sowetans took to the streets this week to demand the provision of free electricity from the state exclusively for their township. This is notwithstanding the fact that the Soweto township along owes Eskom more R18 billion in electricity bills.

Not to be outperformed, the Leader of the deregistered blacks only organization – Black First Land First (BLF), Andile Mngxitama weighed in behind the Soweto free electricity march and as always, lapooning and labeling those who did not sympathize with the march as “fools with a slave mentality”.

Andile took the demand for free electricity to its illogical conclusion, arguing as it were that: “People don’t know that there’s no manufacturer of coal, it’s a God-given product. You just go and take it out of the ground.” “God has given you coal for free. Just like if you move to clean energy, being solar and air — these things are for free.”

Prima facie, Andile’s argument appears to have some merits to it but it falls on its head once we start to consider the fact that coal needs to be mined underground by equipments which needs maintenance and labor which must be renumerated. You don’t have to be an energy expert to know that the process of electricity generation requires just more than coal as Andile would make everyone believe.

But from whence does Soweto and Andile’s claim of the right to free electricity arise?

The right to free electricity certainly does not arise from the supreme law of the republic nor any Act of Parliament. It may so well be a creation Andile’s imagination. While our Constitution expressly makes provision for among other socio-economic rights:(1) the right to have access to adequate housing (section 26), (2) the right to health care, food, water and social security (section 27) and the right to basic and further education (section 29), it does not  however, expressly make any mention to for the right to free electricity.

Accordingly, the right to free electricity certainly cannot be assumed, it must be established. Moreover, all the above mentioned socio-economic rights as enshrined in the Constitution are qualified. For example,  section 27 (2) states that: “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.”

Essentially, what this means is that is that these rights are not absolute. They have their own internal qualifiers over and above the section 36(commonly known as the limitation clause) in the Constitution.

In the case of Soobramoney v Minister of Health, KwaZulu Natal, for example, the Constitutional Court was called upon to deal with the right to health care as enshrined in section 27 (1) of the Constitution. The applicant in this case claimed the provision of kidney dialysis treatment from a provincial state hospital, based on his right to emergency medical treatment and his right to life on a substantive

reading. The Court dismissed the claim based on these two rights. In doing so, the court stated that section 27(1 )(a) was qualified by section 27(2), which inter alia, determines that the state is only required to give effect to the section 27(1 )(a) right within its available resources.

The Court then found that the respondent had shown that it had limited resources available for the provision of kidney dialysis treatment which did not allow it to provide the treatment to all who required it. The respondent had further shown that it had developed a set of reasonable and fair criteria according to which to decide who would receive the limited treatment available and who would not and that those criteria had been applied in good faith in the instant case.

However, to be fair to all the proponents of free electricity demand, let us assume that the Constitution indeed made provision for free electricity but then proceed to ask the question: does the state have the capacity or the means to realize the implementation of such a right even “progressively”? The answer is without any doubt in the negative. In his Budget Statement, the minister of Finance, Mr. Tito Mboweni paints a every colorful picture of our dire economic situation. The minister reminded us of among other things the following:

1. For 2020/21, revenue is projected to be R1.58 trillion, or 29.2 per cent of GDP. Expenditure is projected at R1.95 trillion, or 36 per cent of GDP. This means a consolidated budget deficit of R370.5 billion, or 6.8 per cent of GDP in 2020/21.

2. The total government debt burden now equals almost 66% of South Africa’s total economy – and repayments on this debt is growing by more than 12% a year.

3. Government will over the next three years allocate over R112  billions to  Eskom in order to keep the struggling state owned power supplier afloat.

Again, no one needs a degree in Economics nor Finance to understand the dark economic cloud hovering over our country. How a person in this type of economic quagmire can argue for the provision of free electricity is a matter certainly beyond me. This is populism of the highest order to say the least. As the Minister of Justice and Constitutional Development Honorable Ronald Lamola posited in his debate speech to the State of the Nation Address:

“As a matter of a historical record Mr President, we are taught that whenever reforms are introduced and decisions are made, to press the re-set button of any nation, demagogues, and opportunists will always seek to seize the opportunity to mislead the masses. They will offer instant solutions which are far from reality.”

“They do this by apportioning blame on the reformist, by making unguided and misinformed pronouncements on matters of governance in general and the economy in particular. They do so to project the reformist leadership as sell-outs to the revolution.”


Lehumo Sejaphala is a regular contributor for the, independent political analyst and final year Law student at the University of the Witwatersrand.