Authored By: Tsakile jubilee makondo
Unisa
Introduction
By 2023, South Africa’s rolling power cuts had escalated to the point where the Gauteng High Court found that the state’s failure to protect the national grid amounted to a breach of constitutionally protected rights, ordering that hospitals, schools and police stations be shielded from further interruptions.1 “Load shedding” — the deliberate, scheduled withdrawal of electricity supply to avert a total collapse of the national grid — has become a defining feature of South African life, causing direct financial harm to households and businesses through damaged appliances, spoiled goods and lost income. Electricity supply is regulated principally through the Electricity Regulation Act 4 of 2006, administered by the National Energy Regulator of South Africa (NERSA), while the Consumer Protection Act 68 of 2008 (CPA) governs the relationship between suppliers and consumers of goods and services more broadly.
This article argues that although the CPA appears on its face to give ordinary consumers a statutory route to compensation for load-shedding-related damage, the practical and evidentiary difficulty of proving causation renders that remedy largely illusory, and that meaningful accountability for load shedding has instead been achieved through constitutional litigation rather than private consumer law. The article first outlines the regulatory framework governing electricity supply, then examines the courts’ constitutional response to load shedding, before turning to the limits of the CPA as a vehicle for individual redress. It concludes by proposing a regulatory measure that could narrow the gap between institutional and individual accountability.
The Regulatory Framework Governing Electricity Supply
The Electricity Regulation Act 4 of 2006 (“ERA”) establishes the legal architecture within which Eskom, the state-owned utility, and municipal distributors operate. Its stated objects include ensuring that the interests and needs of present and future electricity customers and end users are safeguarded, and facilitating a fair balance between the interests of customers, licensees, investors and the public.2 NERSA, established under the National Energy Regulator Act 40 of 2004, is the custodian and enforcer of this regulatory framework and is responsible for licensing distributors and approving the technical rules — such as the NRS 048-9 Code of Practice — that govern how load shedding is implemented.3
The ERA also imposes an equity obligation: a distributor may not discriminate between customers or classes of customers regarding access, tariffs or conditions of service, except for objectively justifiable differences approved by NERSA.4 This provision has assumed particular importance in disputes over “load limiting” and “load reduction” — targeted interruptions distinguishable from the rotational, area-wide practice of load shedding — where commentators note that only load shedding proper has been judicially endorsed as lawful, while load limiting remains untested.5 What the ERA conspicuously does not provide, however, is any mechanism for individual consumers to claim compensation for losses caused by scheduled interruptions; its focus is regulatory and structural, not remedial.
Judicial Recognition of Load Shedding as a Constitutional Concern
Where the ERA is silent on remedy, the courts have been active. In Afriforum NPC v Eskom Holdings SOC Ltd, the Gauteng High Court accepted that the Constitution recognises the doctrine of necessity, holding that where Eskom lacks the generation capacity to supply the entire country, it is entitled to implement load-shedding arrangements on a temporary basis to avert the collapse of the grid.6 Critically, the court qualified this entitlement: where the issue is one of convenience or expenditure, Eskom may not deliberately withhold supply.7 This distinction — between load shedding as a necessity-driven, temporary measure and disconnection as a punitive or cost-saving one — has remained central to subsequent litigation.
In United Democratic Movement v Eskom Holdings SOC Ltd, a full court of the Gauteng Division found that the state respondents bore a constitutional and statutory obligation to ensure uninterrupted electricity supply to public health facilities, schools and police stations, and that the ongoing implementation of load shedding without safeguarding these institutions violated rights protected under the Constitution.8 A further order in December 2023 directed the Electricity Minister to take reasonable steps, by 31 January 2024, to secure sufficient supply to these categories of institutional consumer, prompting an appeal by Eskom on separation-of-powers grounds.9 These judgments show that South African courts are willing to treat load shedding as a matter engaging the Bill of Rights. Yet the relief granted is deliberately confined to institutions whose interruption threatens life, health or safety; ordinary residential and commercial consumers derive no direct compensatory benefit from this constitutional line of authority, however much it may shape the broader regulatory environment in which Eskom operates.
The Consumer Protection Act and the Limits of Private Redress
For individual consumers seeking compensation, attention turns to section 61 of the CPA, situated within Chapter 2’s “Fundamental Consumer Rights”. Section 61 imposes strict liability on the producer, importer, distributor or retailer of goods for harm caused by unsafe or defective goods, or by inadequate instructions or warnings, without requiring proof of negligence.10 Commentators have argued that section 61 could found a claim against Eskom or a municipality for damage — most commonly to sensitive electronic appliances — caused by the power surges that frequently accompany the restoration of supply after an outage.11 The theoretical attraction of this route is considerable: strict liability dispenses with the need to prove fault.
In practice, however, the obstacle is causation rather than fault. Commentators have observed that the technical difficulty of proving that a specific surge caused specific damage, and that the surge is properly attributable to Eskom’s own conduct rather than some other cause, renders such claims too remote to succeed with confidence.12 Insurers, too, generally treat load-shedding-related damage as uninsurable under ordinary policies, although limited surge-protection cover is sometimes separately available.13 The result is a striking asymmetry: section 61 offers consumers a doctrinally sound cause of action, yet no reported case has succeeded against Eskom on this basis, leaving the remedy theoretically available but practically dormant.
Conclusion
South African law regulates electricity supply, but it does not straightforwardly compensate consumers for the harm that supply interruptions cause. The Electricity Regulation Act establishes the licensing and technical framework within which load shedding operates, without providing consumers a remedy. The courts, through the Afriforum and United Democratic Movement litigation, have shown a willingness to hold organs of state to their constitutional obligations, but only in respect of institutions whose interruption threatens life or health, leaving ordinary consumers outside the scope of that relief. Section 61 of the Consumer Protection Act, meanwhile, offers a strict-liability route to compensation that is doctrinally available but practically foreclosed by the evidentiary difficulty of proving causation. This article has argued that meaningful accountability for load shedding in South Africa has therefore developed asymmetrically: robust for institutional consumers through public law, and largely illusory for ordinary consumers through private law.
Closing this gap need not require new legislation. NERSA could, within its existing regulatory mandate, require distributors to maintain surge-monitoring data at substation level, and could introduce a rebuttable presumption that appliance damage occurring within a defined window of supply restoration is attributable to the distributor unless the contrary is shown. Such a measure would give practical effect to the protective purpose the CPA already proclaims, without requiring individual consumers to litigate technically complex causation disputes they are ill-equipped to win.
Footnote(S):
1 United Democratic Movement v Eskom Holdings SOC Ltd Case No 5779/2023 (GP) (order of Davis J, December 2023); see also ‘Eskom on why it cannot exempt key institutions from load shedding’ IOL (4 January 2024).
2 Electricity Regulation Act 4 of 2006, s 2(b) and (g).
3 Electricity Regulation Act 4 of 2006, s 4(1); National Energy Regulator Act 40 of 2004, s 3; ‘Changes to procedures to allow for higher stages of load shedding’ Energize (1 March 2023).
4 Electricity Regulation Act 4 of 2006 (equity provisions on non-discrimination between customers), as summarised in ‘Motion to extend loadshedding beyond stage 8’ ESI-Africa (6 March 2023).
5 HBGSchindlers Attorneys ‘Watt’s at Stake: A Legal Lens on “Load Shedding”, “Load Limiting” and “Load Reduction” in South Africa’ (26 March 2025).
6 Afriforum NPC v Eskom Holdings SOC Ltd [2017] 3 All SA 663 (GP), as quoted in HJW Attorneys ‘The Legal Lowdown on Loadshedding’ (17 January 2022).
7 ibid.
8 United Democratic Movement v Eskom Holdings SOC Ltd Case No 5779/2023 (GP) (5 May 2023); Cliffe Dekker Hofmeyr ‘High Court considers the impact of loadshedding on fundamental constitutional human rights’ (23 May 2023).
9 ‘Eskom on why it cannot exempt key institutions from load shedding’ IOL (4 January 2024); ‘Load shedding case: Eskom’s evidence not properly taken into account, court told’ The Citizen (23 May 2025).
10 Consumer Protection Act 68 of 2008, s 61.
11 Jacobs W, Stoop P and Van Niekerk R ‘Liability for Damage Caused by Loadshedding: A Consideration of Whether Collective Action for Redress by Consumers in South Africa is Possible’ (2024) 27 Potchefstroom Electronic Law Journal (Special Edition).
12 Ian Levitt, quoted in ‘You can’t sue us, it’s our right to load shed – Eskom’ The Citizen (21 October 2021); Philip Venter, quoted in ‘Can you sue Eskom for damage to your appliances due to load shedding?’ The Citizen (4 November 2023).
13 ‘Can you sue Eskom for damage to your appliances due to load shedding?’ The Citizen (4 November 2023).
References
Constitution of the Republic of South Africa, 1996.
Consumer Protection Act 68 of 2008.
Electricity Regulation Act 4 of 2006.
National Energy Regulator Act 40 of 2004.
Afriforum NPC v Eskom Holdings SOC Ltd [2017] 3 All SA 663 (GP).
United Democratic Movement v Eskom Holdings SOC Ltd Case No 5779/2023 (GP).
Cliffe Dekker Hofmeyr, ‘High Court considers the impact of loadshedding on fundamental constitutional human rights’ (23 May 2023).
Energize, ‘Changes to procedures to allow for higher stages of load shedding’ (1 March 2023).
ESI-Africa, ‘Motion to extend loadshedding beyond stage 8’ (6 March 2023).
HBGSchindlers Attorneys, ‘Watt’s at Stake: A Legal Lens on “Load Shedding”, “Load Limiting” and “Load Reduction” in South Africa’ (26 March 2025).
HJW Attorneys, ‘The Legal Lowdown on Loadshedding’ (17 January 2022).
IOL, ‘Eskom on why it cannot exempt key institutions from load shedding’ (4 January 2024).
Jacobs W, Stoop P and Van Niekerk R, ‘Liability for Damage Caused by Loadshedding: A Consideration of Whether Collective Action for Redress by Consumers in South Africa is Possible’ (2024) 27 Potchefstroom Electronic Law Journal (Special Edition).
The Citizen, ‘Can you sue Eskom for damage to your appliances due to load shedding?’ (4 November 2023).
The Citizen, ‘Load shedding case: Eskom’s evidence not properly taken into account, court told’ (23 May 2025).
The Citizen, ‘You can’t sue us, it’s our right to load shed — Eskom’ (21 October 2021).
