This submission is being made by Eskom after its participation in the conference hosted by the Human Rights Commission during July 1999, and is based on the suggestions and recommendations that emerged from the said conference.
  2. Certain key issues emerged during the said conference and the purpose of this submission is also to highlight some of those issues which are of most concern to Eskom.

    It is respectfully submitted that the drafters of the legislation can to a large extent accept that almost all stakeholders involved in the process, and in particular, participants at the Human Rights Commission conference support the principles that underpin both the Bill as well as the Open Democracy Bill, and furthermore, support the objectives sought to be achieved. However, it was indeed recognised at the conference that the objectives to be achieved needed to be balanced with the reality of practical considerations so that the implementation of the Bill is possible, and can be done in an efficient manner.

    The comments set out herein are divided into two parts:

    The first deals with certain general comments and the second sets out specific comments relating to particular provisions of the Bill.

    A general concern expressed at the conference, which is supported by Eskom, was that the all encompassing nature of the Bill has resulted in a lack of focus by the drafters on the purpose of the Bill - that is, to benefit those disadvantaged communities that should be the main beneficiaries of the Bill.

This point was made in various ways. The issue that Eskom would like to emphasize and develop this point herein, in the context of the drafters failing to recognise the evolving different role that Public Enterprises may need to fulfil in future in order to deliver to the previously disadvantaged.

It is arguable whether a Public Enterprise is regarded as an organ of state in terms of the constitution and therefore falls within the jurisdiction of this legislation. However, for the purposes of this submission, it is assumed that Public Enterprises are organs of state and will therefore be subject to the Bill one it is enacted.

What constitutes administrative action by the State has always been a difficult legal question to answer. It has always been recognised that all Government action may not necessarily be regarded as an administrative act and that certain acts could be regarded as falling outside a strict definition of administrative action. However, because of the difficulty inherent in trying to clarify this definition, and also because of a fear of abuse of such an exemption if one were created, our jurisprudence has leaned towards a definition of administrative act as is set out in the Bill, i.e.: any act by an organ of state or Government.

This issue may have to be evaluated insofar as Government's various roles are concerned. In particular, the issue of Government's role as employer has led to suggestions that all matters governing that relationship should be dealt with in terms of the Labour Relations Act, which is adequate to ensure all the safeguards envisaged in the Bill. The apparent difficulty however is to a large degree resolved when one turns to the role of Public Enterprises.

Now more than ever before, there is a realisation that the role of Government may be different than the traditional role we are all accustomed to. Evolving world trends show a significant paradigm shift in terms of which there is a different view on Government's role. Government's ability to deliver on basic services can in some instances be enhanced by splitting off what is a national policy function, which rests with Government; and a delivery and service capability which could be structured differently.

If we take the electricity sector as an example, we see that in terms of the Energy Policy for South Africa it is envisaged that in the long term competition will be introduced into the electricity sector. Furthermore, in terms of the protocol on Corporate Governance in the public sector, it is clearly contemplated that all Public Enterprises operate as efficient businesses which are ultimately able to compete with the private sector. It is through these initiatives that it is believed that the economy can grow and delivery to the advantaged people of our country can be accelerated.

There are also moves to remove national policy issues from Public Enterprises and have these decisions rest with Government. Again, in the electricity sector we see the creation of the National Electricity Regulator to monitor the implementation of Government policy, and in terms of the Energy Policy, a number of key policy issues are to be determined by Government.

We therefore see Government, through the Ministry of Public Enterprises and Mineral and Energy, creating a regime that will contribute to Eskom operating as an efficient and effective business. However, the Bill does not seem to accommodate this fact, and could possibly hinder Eskom operating along business lines. If the business decisions made by Eskom fall within the ambit of the Bill, the consequence is that all business decisions taken are clearly subject to judicial review. It is certainly not possible to run an effective business on this basis.

It is therefore strongly recommended that the role of Public Enterprises who are required to operate on a commercial basis be reconsidered, and that they be exempt from the provisions of the Bill. Such an exemption will not in any way prejudice the intended beneficiaries of the Bill as access to information and just administrative action can still be secured by virtue of the exercise of these rights directly against Government or the National Electricity Regulator.

Two examples illustrate this point clearly in the electricity sector. Firstly, if we take the issue of electrification, it may be important to allow access and review of decisions which determine how the country is to be electrified. In terms of the Energy Policy, the planning of electrification will now rest with Government and not with Eskom, and these rights of access and just administrative action can be exercised through Government and are therefore preserved.

The second example relates to the issue of Nuclear power. Even if a decision by an organisation such as Eskom to build a nuclear power station may not be subject to judicial review (if Eskom is exempt), it still is indirectly subject to such a process. This is by virtue of the fact that no such decision can be taken or implemented without Eskom being granted a licence by the National Electricity Regulator. As soon as the process of licensing commences, the public will have access to the decision-making process and the process will be subject to review as contemplated in the Bill.

Consequently, treating Public Enterprises that operate on a commercial basis differently does not prejudice the rights sought to be enhanced by the Bill. On the other hand, if the Bill were to apply to Public Enterprises, it does not give the public any greater rights than they would otherwise enjoy, but there is also a prejudicial effect in that the business operations of the Public Enterprises could be severely prejudiced.

3.1Definition of Administrative Action
For the reason set out above, it is submitted that the definition of administrative action is too wide and should be more narrowly construed.

3.2 Grounds of Review
Eskom is satisfied that the grounds of review should be an open-ended list and believes that it would be unconstitutional to try and create a closed list.

3.3 Reasons
With regard to furnishing reasons, it is respectfully submitted that the capacity and resources of Government institutions need to be taken into account. It is therefore recommended that the existing time periods be retained but that provision be made for the Minister to be able to amend the time periods by regulation.