People Power: Eskom gets High Court hiding – must remove pylons, pay legal costs after home owner fights back
Sometimes I just don't get South African State Owned Enterprises. Having experienced Eskom's efficiency first hand as a direct client while we were farming (please, Joburg Metro, outsource to the professionals), I had a good feeling about the way the place is run. Then comes this appalling story which smacks of SOE arrogance almost beyond belief. A private citizen in Midrand was forced to spend over R2m taking Eskom to the High Court after the utility's management, including CEO Brian Dames, refused to listen to reason. The way we understand it, Eskom illegally erected pylons with heavy electro magnetic cables on property they don't own. Without consultation. Without discussion. So after a 17 month court case the SOE has finally been forced to retract. When we asked Eskom for comment, the response was – no comment because we're studying the judgement. What's to study? The Judge slammed the utility's heavy handed behaviour, ordering it to take down its pylons and pay the legal costs of the plaintiffs. Unless Messrs Dames and Co are going to appeal on some technicality. Yuck. – AH
ALEC HOGG: Residents of a Midrand country estate are turning to the High Court in Pretoria in a bid to force Eskom to dismantle electricity infrastructure that has been erected over their properties. Anthony Norton, who is with Norton Rose, joins us in the studio. You aren't the Norton in Norton Rose. You predated them, didn't you?
ANTHONY NORTON: I did. That's true.
ALEC HOGG: So Deneys Reitz, a South African firm, became Norton Rose, which is a global firm.
ANTHONY NORTON: Correct.
ALEC HOGG: You still have a great name though, to be in that business.
ANTHONY NORTON: Yes, thank you.
ALEC HOGG: It's not a nice story that we're hearing. We did try to get hold of Eskom to give us their side of the story (Nothing was forthcoming). Maybe you can unpack it all for us, because the way we read it – the information we have – is that there's been a judgment against Eskom after it put up power lines without permission on people's ground.
ANTHONY NORTON: Correct. The story goes back 17 months and really; what happened was that Eskom has a servitude over certain residents' properties in this particular area. They gave notice saying, "Look, we intend putting up some power lines, but the letter that they gave didn't invite any form of consultation. It was simply, "we're going to put up something new", but the impression that they created was that they were simply going to replace what was there before, which was very small little poles with two or three strands attached to them. What they in fact did, was replace this entire line with these monstrous structures with much more significant capacity than had previously been the case. To add insult to injury, these structures were outside the ambit of the servitude. In other words, they were outside the space that permitted Eskom to erect these particular structures. The residents have been waging a battle for 17 months to get Eskom to remove these structures, which, on Eskom's own version now – they admit – were outside the ambit of the particular servitude.
ALEC HOGG: Why did they do it then, if they admit it?
ANTHONY NORTON: Well, I think Eskom's view is that if I have a servitude I can literally do what I like. Why this case is so important is not only the issue about 'did they comply with the terms of the relevant servitude?' This case implicates constitutional issues about the right to live in a safe environment. I think what many of your viewers may not know, is that electricity pylons have many inherent dangers, which come with them. It's not only the obvious ones that you normally think about like electrocution risk etcetera, but power lines are very dangerous from a fire perspective. In typical conditions in South Africa, you have a storm, bits of brush are knocked into the power line in high winds, and that is very, very dangerous from a fire perspective. Now you'll appreciate that when you have power lines within several meters of people's homes, if you have a fire and you have small children and people in the home, that is a huge, risk. Now in countries like Australia and the United States there is a deliberate policy not to erect power lines close to residential homes or schools for the very risks inherent in fire. There are also risks though that many people don't appreciate from electromagnetic fields that are generated from power lines, and this is particularly a risk for small children for childhood leukaemia.
ALEC HOGG: Why is it only small children?
ANTHONY NORTON: Well, the scientific studies have demonstrated that small children are particularly vulnerable to electromagnetic fields, so children – typically between the ages of nought and five are particularly susceptible. What many of the scientific studies have shown is that the risk of childhood leukaemia to those types of children is particularly acute. What the residents have really said to Eskom is, "Look. There are these very, very significant health and safety risks. There is a Constitutional right to live in a safe environment and our Constitution also recognises that children's rights are paramount". Given those Constitutional imperatives, the residents have said to Eskom, "Look. Your conduct is unconscionable. You can't erect power lines in close proximity to people's homes. You either put them underground or find somewhere else to put the power line where it's not erected within a few meters of people's homes".
ALEC HOGG: I don't understand this though, Anthony. Eskom's been on a charm offensive to tell us to work with them, to switch off our lights and switch of our geysers. Really, we're a country that has a shortage of electricity. They're the sole provider in most respects. Let's work together. Then they do something like this. There must be something more to this story. Surely, someone at head office maybe signed the wrong memo or somebody exceeded their authority
ANTHONY NORTON: Alec, your point is a very good one and I think we had always hoped that sanity and reason would prevail in this matter. This litigation has been ongoing for over a year and a half. Eskom has lost the most recent battle and been ordered to take these power lines down over a particular resident's property, but we're not that confident that they're going to comply with the order. Their conduct throughout this matter has been delay, dilatory tactics, to try to run legal technicalities, which have failed spectacularly. However, engagement with individual citizens, where Constitutional rights and children's rights are very importantly implicated… You would have thought that somebody – the CEO, the Board – would have said, "Let's stop this madness. Let's engage on a proper and sensible basis and try to find a reasonable solution".
ALEC HOGG: How far/high up does it go?
ANTHONY NORTON: Well, some of these towers are up to 32 meters high.
ALEC HOGG: No, I mean how high up in Eskom itself does it go. Does (CEO) Brian Dames know that this is happening?
ANTHONY NORTON: Brian Dames is perfectly aware of this. In fact, when these power lines were first erected, our firm sent a letter to him personally saying, "This is the issue that has arisen". This was before the litigation arose saying, "Please intervene, and please ensure that we have a sensible solution here".
ALEC HOGG: And he said, "No"?
ANTHONY NORTON: He chose to run this on a litigious basis and it's very disappointing that an organ of State, a governmental body, which should really have citizens' and individuals interests at heart, should behave in this fashion.
ALEC HOGG: How much does it cost?
ANTHONY NORTON: Well, a bunch of eight individuals is funding this litigation. You will appreciate it when senior counsel and lawyers have become involved and a matter that runs for months and months, it becomes a very difficult exercise for individual people to sustain.
ALEC HOGG: How much does it cost?
ANTHONY NORTON: It is a very significant amount.
ALEC HOGG: Is it millions?
ANTHONY NORTON: It is in excess of R2 million so far, to date.
ALEC HOGG: There we go, Gugu. If you want to use the legal system, just know you have to have deep pockets.
GUGULETHU MFUPHI: But that's not applicable to many South Africans. We live in an economy where there are vast differences regarding economic growth between different citizens. Look at Sandton and Alex.
ANTHONY NORTON: Well, another of the sad realities that you raise in this case, is that frankly, if it wasn't for the fact that people could afford to bring this type of action they would just simply have to accept the situation as it was and say, 'Well, there's nothing we can do" and Eskom will simply prevail here. Frankly, it's an unacceptable situation and we'd really hoped from a corporate governance point of view that somebody on the Eskom board, somebody in senior management at Eskom would say, "Look. We need to intervene here and we need to ensure that citizen's rights and individual rights are protected". Unfortunately, that hasn't been the case.
ALEC HOGG: Just one final point. As far as Eskom is concerned, we've had very little feedback. They've said they wanted to study the judgment, but surely, in their finding affidavits – in their arguments to the court they must have had some cogent argument against what you're telling us.
ANTHONY NORTON: Well, we've frankly been very disappointed at their response. May I tell you why I say this in particular? You would expect that an organ of State would be fairly transparent, open, and candid with the court. One of the things that we think they should have done, for example, is said to the court, "These are out statistics about the number of claims we've had about fires from power lines". Give the court a fair indication. Is this fire a real risk? How many claims do they have per year? How many claims are submitted about fires caused by power lines? Do they have internal guidelines/exposure guidelines for their own employees who work on power lines? My understanding is that they do, so that people who work in fixed power lines on a regular basis are told, "You can only work so many hours" because there are health and safety risks from cancers and tumours etcetera. If that is the case, surely these guidelines, these risks must be made public and people should be aware of them. Otherwise, average members of the public like you and I are just non-cited on these issues and there could be very serious health and safety issues. I can only call up on Eskom to say, "Make these figures public. Bring your statistics into the open. Put them in the court papers so people can actually see what the true situation is.