FOR IMMEDIATE RELEASE – Title: ESKOM vs. CLIENT – Constitutional Concerns Raised in Disconnection Dispute Expose Conflict Between Statute and Bill of Rights

Date: August 25, 2023

Location: LUSAKA, ZAMBIA

In a landmark case that underscores the delicate balance between statutory authority and constitutional rights, a dispute has arisen between Arnoldino Media (Pty) Ltd (Arnoldino), a member of the Africa Heritage Society’s (AHS) JUSTICE UNDER ROLE OF LAW (JUROL), JUROL LEADERSHIP INSTITUTE (JLI), a platform to provoke, promote, ignite and inspire active citizenship to protect and promote the rule of law and the inherent accountability that must underpin and inform laws, practices, custom, and conduct of every person to live up to the promise of s. 7(1) of the Constitution of South Africa that provides as follows:

“This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality, and freedom.”

At the core of the dispute was created when it unilaterally, arbitrarily, and capriciously determined that its client, Arnoldino’s, account was in arrears in July 2022 leading it to communicate the arrears amount that needed to be settled and, if not settled, Eskom was to proceed without further notice to exercise its rights in terms of a contract it had concluded with Arnoldino of July 2020.

What is striking in this dispute is that although Eskom relied on an alleged amount in arrears that would appear to have triggered the disconnection decision and action on July 26, 2023, in subsequent court matters challenging the validity and legality of the exercise of statutory power vested in the contract of electricity supplies pursuant to the Electricity Supply Act (ESA), Eskom has demanded the payment of an arrears amount that was never mentioned in the pre-disconnection correspondence.

Instead, Eskom has used a post-disconnection amount as the condition for reconnecting supply. This is notwithstanding the fact that prior to any court proceedings in relation to the validity and legality of the disconnection of electricity on July 26, 2022, on July 27, 2022, or a day after disconnecting services to Arnoldino, Eskom confirmed the amount in arrears that was communicated to Arnoldino via an email of July 19, 2022.

Eskom, South Africa’s state-owned electricity provider, is a creature of statute and as such, in terms of s. 2 of the Constitution of South Africa that provides that any law including the ESA, or conduct by Eskom staff that is inconsistent with the constitution is invalid to the extent of the constitution. In practice, however, the officials of Eskom behave in a manner that is inimical to the rule of law, as the facts of this matter show.

As stated above, the dispute centers on the disconnection of electricity services to Arnoldino and the subsequent notice to remove equipment issued by Eskom.

Conflict Between Statute and the Bill of Rights

The heart of the matter lies in the conflict between the statutory authority exercised by Eskom and the fundamental rights enshrined in the Constitution of South Africa. Eskom’s decision to disconnect electricity services and its subsequent notice to remove equipment have ignited concerns about the potential violation of constitutional principles. The dispute raises crucial questions regarding the supremacy of the Constitution over statutory provisions and the rule of law. Arnoldino’s contention is that the decision to disconnect electricity was made based on an arrear’s amount whose validity and legality have yet to be independently scrutinized. Furthermore, the notice to remove equipment introduces a self-help approach that raises significant constitutional concerns.

Insight from JUROL Leadership Institute (JLI)

Mr. Benson Bwalya, a member of the JUROL LUSAKA LEADERSHIP INSTITUTE (JLLI), who used to live and work in South Africa and is familiar with Eskom-related matters, highlighted, “Eskom is a bully, and this kind of conduct is pervasive. Eskom does not care because the officials believe that the supremacy of the constitution is a mere slogan, as Eskom is bound by the ESA and nothing else. It is deeply concerning and troubling that Eskom is weaponized to deny the Bill of Rights in violation of s. 7(1), s7(2), s. 8(2), s. 9(1), s. 25(1), s. 33(1), and s. 83(b). The implications of this case on the rule of law and the supremacy of the Constitution are direct, and the facts are disturbing, to say the least. The dispute raises fundamental questions about whether statutory authority can be exercised without regard to the constitutional rights of individuals and entities.”

Potential Precedent and Call for Independent Tribunal

The dispute exposes a critical precedent, raising concerns of potential impunity for state entities in their exercise of statutory power. This precedent calls into question whether statutory decisions can be made without thorough consideration of the constitutional implications they carry. It also underscores the need for an independent and impartial tribunal to determine the constitutionality of such decisions.

The Balance Between Statute and the Bill of Rights

The conflict between statute and the Bill of Rights is at the forefront of this dispute, with Advocate Pillay asserting that “the Constitution, as the supreme law of the land, holds sway over all actions, including those taken by state entities. Our aim is not only to seek redress for Arnoldino but also to address the broader constitutional implications of this case.”

Significant Attention and Broader Implications

The case has attracted significant attention from legal experts, human rights organizations, and observers of the South African legal landscape. The outcome of this dispute could set a crucial precedent in the balance between statutory authority and constitutional rights, influencing the future interactions between state entities and the individuals and entities they serve.

Upholding Justice, Fairness, and Constitutional Supremacy

As the case unfolds, the fundamental principles of justice, fairness, and constitutional supremacy remain at the forefront. This dispute serves as a reminder that even in the exercise of statutory authority, the principles enshrined in the Constitution must be upheld and respected.

For media inquiries, please contact:

Peter Smith, Director of Public Policy, JLLI And Editor of www.Iniafrica.com [email protected] +260974156347