South Africa: Courts Cannot Fix Eskom and Systemic Governance Problems That Beset a Captured State


It is unclear whether the daily power cuts (which on Monday escalated to a previously unknown stage six with three power cuts a day of between two-and-a-half and four hours each), should be blamed on systemic corruption, on incompetence and lack of skill at Eskom, on economic sabotage, on as yet unknown factors, or on some combination of the above. But these cuts do raise important questions about whether South Africans have a right to receive electricity uninterrupted, whether the continuing power cuts infringe on such a right and whether courts can actually enforce such a right.

The South African Bill of Rights does not contain an explicit right for everyone to receive electricity. While the Bill of Rights guarantees for everyone the right to access housing, health care, food and water, it is silent on whether there is a duty on the state to provide everyone with uninterrupted access to electricity (or at least to progressively work towards the universal provision of uninterrupted access to electricity).

However, this is not the end of the matter. In 2009, the Constitutional Court - in the case of Joseph and Others v City of Johannesburg and Others - considered the question of...

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