More People Power: Court forces Eskom to dismantle 4.5km of power lines, but it now threatens to erect them again
A few weeks ago attorney Anthony Norton told us about a court action where Midrand homeowners took Eskom to the High Court because the State utility illegally erected power lines on private property. Norton's clients won the case and Eskom was instructed to remove the structures. As you'll read below in the transcript of today's interview, it took the deadline set by another court order to actually get Eskom to act. Now, after millions in wasted costs and with the fuill knowlege of Eskom CEO Brian Dames, the power company is proposing to replace the pylons. – AH
ALEC HOGG: Residents of a Midrand country estate turned to the High Court in a bid to force Eskom to dismantle electricity infrastructure over their properties. Eskom was ordered to, and has now removed the illegally erected electricity pylons and lines. Anthony Norton from Norton Inc. Attorneys is with us in the studio. The last time you were here, Anthony, you'd won the first round. It was your concern though, that Eskom was not removing the pylons.
ANTHONY NORTON: Correct. Fortunately, a subsequent court order has now emerged and they've taken down four and a half kilometres of power lines as a result. As you can appreciate, obviously from a resident's point of view, that's a good result. However, from an Eskom cost and efficiency point of view, you can realise that that is a huge waste of resources and money. It is also a great pity that it's taken 18 months of litigation for them to then eventually act.
ALEC HOGG: How huge?
ANTHONY NORTON: Well, I would estimate that this runs into several million rand. In terms of fruitless expenditure, this must rank right up there. If one considers that right at the outset of the litigation, before the lines were even strung, the residents said to Eskom 'you're erecting illegally. Don't proceed' and they proceeded nonetheless. They set up four and a half kilometres of electrical infrastructure, and have now effectively been forced to take it down.
GUGULETHU MFUPHI: Where was the turning point for Eskom?
ANTHONY NORTON: Well, I think it's the most recent court order from the Pretoria High Court, which gave them 30 days to take down certain infrastructure and they were then compelled to act. It has however taken 18 months of litigation and a lot of time and expense, which we think – frankly – was completely unnecessary.
ALEC HOGG: Somebody somewhere made a decision. When we last spoke to you, you said Brian Dames – the Eskom Chief Executive – was aware of this. What are the consequences of that kind of decision? We know the financial consequences, but what are consequences internally?
ANTHONY NORTON: Well, you make a very good point and I think this is all about corporate governance at Eskom. Unfortunately, we don't think this is the end of the saga because Eskom has indicated that they now want to consider putting up new infrastructure in the place of the one they've just taken down. You can imagine from a cost point of view, this is just going to result in further court action and further litigation. Frankly, it's completely unnecessary – the cost to the taxpayer and everyone else concerned.
ALEC HOGG: Just explain that. They've taken down the pylons because they were on the residents' land?
ANTHONY NORTON: They were illegally put up – correct.
ALEC HOGG: They were illegally put up. Now they're saying 'we're going to put them up legally, but right next door to where they were standing in the first place'?
ANTHONY NORTON: Correct.
ALEC HOGG: Then you go back to court?
ANTHONY NORTON: Exactly. It's entirely counterproductive. You will have known about this recent disaster in kwaZulu-Natal where several workers were killed in an underground issue affecting Eskom. One of the critical issues in this case is health and safety issues when you put very dangerous electrical infrastructure – effectively – in people's back gardens. This is one of the issues in this case. Looking at Eskom's report for 2011, there are some very interesting statistics. 43 members of the public were killed in 2011 as a result of electrical contact facilities and Eskom infrastructure, and that is a very high number.
ALEC HOGG: What did they do – those 43? They weren't people trying to steal power lines?
ANTHONY NORTON: No, these are not criminal acts. These are not people trying to steal.
ALEC HOGG: Just walking down the road and a pylon falls on you…
ANTHONY NORTON: A pylon falls on you or you are shocked/electrocuted etcetera.
ALEC HOGG: 43?
ANTHONY NORTON: 43. These are very high statistics. Now in our mining industry, CEOs would lose their jobs if you had that sort of number of fatalities on an annual basis. However, from an Eskom point of view, notwithstanding the fact that they're now saying they have a zero policy on fatalities: they are going ahead and putting 132-kilo volt electrical infrastructure in people's bank gardens. It's wholly irrational and I'm afraid it's just going to engender further litigation, further cost, and no doubt Eskom having to take down more electrical infrastructure in due course.
GUGULETHU MFUPHI: So does this case not have the potential to be precedent setting?
ANTHONY NORTON: Absolutely, I think there are critical precedent setting issues, not least of which are constitutional issues about the right to live in a safe environment and children's rights are given paramount recognition in our constitution.
ALEC HOGG: You said there was a leukaemia threat.
ANTHONY NORTON: Absolutely – one of the issues that the public is not often aware of is that when living in very close proximity to power lines, there's a high risk of childhood leukaemia, notwithstanding electrocution and fire risks. You may be aware of those big fires that they've had in Australia very recently near Sydney and Melbourne: those were caused – predominantly – by power lines. Again, the public is not aware of the very serious fire risks that power lines pose.
ALEC HOGG: What should happen in all of this? 43 people being inadvertently killed by Eskom. We need power. What should be done differently?
ANTHONY NORTON: Well, I think the first thing is that Eskom shouldn't put power lines next to homes and schools. That's the first principle. If they're going to do that, however, put them underground. Underground power lines pose a far lesser risk from an electrocution point of view, from a fire point of view, and even from an electromagnetic field point of view. They're more cost, but from a health and safety point of view – much more optimal, so either put them underground or don't put them next to homes and schools. That's a very simple rule of thumb. Certainly, in countries like Sweden or any of the Scandinavian countries, the US, and even in Australia now they're moving away from putting power lines next to homes and schools. It's a very clear principal in most of those countries.
GUGULETHU MFUPHI: Are these residents in Midrand prepared to continue fighting Eskom?
ANTHONY NORTON: Absolutely, I think there is a very firm conviction to continue with this litigation and that's unfortunate in a sense, because it's just going to increase the cost on both sides. It's an unnecessary waste of resources and our courts really should be dealing with issues that are more important. However, when important health and safety issues of this kind are raised, the residents have no option. They have to carry on fighting.
ALEC HOGG: Anthony, we have tried to get Eskom to engage on this issue a couple of times. Our EP's been onto them saying 'please, will you tell us your side of the story?' They refused to engage publicly on it. What have they been telling you? What is their response in court?
ANTHONY NORTON: Well, it's very interesting that you raised that, because one of the recent issues that we did raise with them is that we said 'publish your electromagnetic field policies – your internal guidelines- so that the public can see what your internal guidelines around electromagnetic fields are. Publish your fire statistics. Show us how many power-related/fire-related claims you had. Tell us your electrocution statistics. How many claims do you have?' In fact, we submitted a pie application to Eskom over a month ago, asking for those statistics and they've refused to provide them.
ALEC HOGG: Can they refuse?
ANTHONY NORTON: Well, we don't think they can legally, but they have. The word 'transparency' is clearly not part of Eskom's dictionary and agenda and I'm not surprised that they don't want to come on your show as a consequence.