“What do we do to ensure that an economy that is already dragging on its knees, doesn’t collapse totally?”

These words, uttered by Judge Pieter Bezuidenhout during Thursday’s hearing, make it clear the decision on whether to allow Eskom to disconnect power supply to Newcastle cannot rely on a simple application of the law.

For that matter, even Cogta’s legal representative, Advocate Adrian Rall, agrees, “There is no doubt that Eskom has the right to disconnect.”

However, the effect the disconnection will have on the 97% of ratepayers, who have paid their accounts, is likely to weigh heavily on the decision Judge Pieter Bezuidenhout will hand down at the Pietermaritzburg High Court tomorrow.

“It is a very sad state of affairs we sit in. The biggest difficulty, from my side, is the consequences,” admitted Judge Bezuidenhout. “What does one do with that?”

Punishing one defaulting ratepayer by disconnecting electricity is common practice by the municipality, in order to send a message to the many that non-payment will not be tolerated.

Should the same principle apply, however, when Eskom attempts to punish the many paying residents of a town to send a message to a defaulting municipality?

Adv Sydwell Shangisa, Eskom’s legal representative, argued that simply granting the municipality a payment holiday sends the wrong message to all defaulting municipalities, including Newcastle.

“It sends a message that courts will tolerate impunity and that courts will perpetuate illegality,” said Adv Shangisa.

Pleading with the court to compel Newcastle Municipality to at least keep up with its current account, even if it defers contributions towards reducing its historical debt, Adv Shangisa asked Judge Bezuidenhout to consider the economic difficulties experienced by Eskom as a result of defaulting municipalities.

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“They (the Newcastle Municipality) should not come to court under the guise that they are acting in the best interest of the ratepayers when they are the very cause of the calamity they say will befall ratepayers. There is demonstrable capability to effect payment to Eskom. There is simply no will. The debt does not arise because municipalities are unable to pay. It arises from the fact that municipalities simply choose to ignore this creditor,” stated Mr Shangisa.

Cogta, on the other hand, has endorsed the municipality’s commitment to pay R30 million towards its monthly account to Eskom until its financial situation improves, insisting the municipality genuinely cannot afford to pay. Adv Rall said he found it extraordinary that Eskom was accusing the Newcastle Municipality of ‘willful default’.

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“This is a municipality that five years ago had R700 million in its bank account. It has come on hard times. (The municipality ended the previous financial year with a deficit of more than R200 million.)

“The people involved at the moment are trying to turn it around but it is not going to happen overnight. They have gone to the extent of passing an adjustment budget which slashes expenditure by about R157 million,” said Adv Rall.

“Cutting off electricity in a town the size of Newcastle will result in human disaster,” warned Adv Rall. “It would be catastrophic. Here, we have a massive number of residents and 97% who are paying for their electricity, but they are going to be cut off as well. It is not fair. We are going to have innocent people who are going to be affected.”

“I don’t think there is any dispute that the money due to Eskom should have been paid long ago. It should have been done correctly. Nobody disputes that. I don’t think anybody can,” said Judge Bezuidenhout. “Legally, it should not be an issue for me to decide, but, unfortunately it does become an issue because the effect of the order I make has huge consequences upon the inhabitants and upon the economy of this country… And that’s what makes the difference.”

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“What I need to decide, is until the final order is decided, in the interim, over the next month or two, what do we do?”

Tomorrow, Judge Bezuidenhout will hand down his final decision on the urgent application put forward by Newcastle Municipality for an interim interdict against Eskom carrying out its decision to disconnect power due to non-payment of more than R213 million debt.

An interim interdict would grant Newcastle temporary reprieve from any disconnections taking place, until the matter is finalised in court in December.