Wednesday, March 4, 2020

PHA High Court Decision Recap

Its been a few weeks since the Western Cape High Court handed down its decision in the case regarding the proposed Oakland City development in the Philippi Horticultural Area (I've written some about the case here before). While it's true, as many outlets have covered, that the decision is a major victory for the PHA Food and Farming Campaign on certain issues, it is also true that the decision was mixed. In some ways, the City and Province scored important victories that serve to permanently wittle away protection of the PHA for agricultural and non-urban uses. Here is a recap of the decision and its findings (I've included paragraph numbers for reference):

Who were the relevant parties in the case [2-3]? 

The PHA Food and Farming Campaign (“Campaign”) and Nazeer Sonday, chairperson of the Campaign, were the applicants seeking relief from the Court. 

Respondents alleged to have violated the law were: 

  • The Member of the Executive Council for Local Government, Environmental Affairs and Development Planning in the Western Cape (the “MEC”) (named as “first respondent” in the decision). The MEC is an authority of the Provincial government. 
  • The Western Cape Department of Environmental Affairs and Development Planning (the “DEADP”) (named as the “second respondent” in the decision). The Department is part of the Provincial government, which the MEC oversees. 
  • The City of Cape Town (the “City”) (named as the “sixth respondent”). 
  • Oakland City Development Company (Pty) Ltd (“Oakland”). Oakland is the developer seeking to develop a portion of the PHA.
What was the case about [1, 4-6]? 

The PHA consists of approximately 3000 hectares of land located physically within the Cape Town metropolitan area that was formally reserved in 1968 for sand mining and horticultural use. Although physically within the Cape Town metropolitan area, the PHA has historically been designated and protected as agricultural, or more specifically, horticultural, land. Urban development has gradually built up along the edges of the PHA. 

The case concerned Oakland’s proposal to develop 479 hectares of land (approximately 20% of the entire PHA) that it owns in the southeastern portion of the PHA (the “Oakland land”). The Oakland land was formerly considered part of the PHA and, like the rest of the PHA, was formally reserved in 1968 for sand mining and horticultural use. As described by the Court, while some of the Oakland land has been mined, unlike most of the more northern portions of the PHA almost none of it (4%) has been farmed, and no other development has taken place on it. The Oakland land, as well as much of the rest of the PHA, is located above the deepest portion of the Cape Flats Aquifer. Oakland acquired the land in 2008 with the intent to develop it. 

The development as presented to the Court calls for building housing for 15,000 families, schools, commercial and industrial facilities, as well as setting aside 77 hectares for conservation and wetland areas. From 2011 to 2017 the Provincial and Cape Town governments made several administrative decisions approving or otherwise facilitating the Oakland’s proposed development. The Campaign opposed Oakland’s proposed development. C. What issues did the Court consider? The substantive issues to be decided, as presented by the Court, were: 

  1. (Whether the Court should designate the entire PHA as “agricultural land” under national and provincial law [25-45].
  2. Whether the government illegally shifted the urban edge to exclude the Oakland City land from the rest of the PHA [46-55]. 
  3. Whether the Provincial government illegally approved the environmental authorization for the Oakland City proposal [56-109]. 
  4. Whether the City of Cape Town illegally approved the rezoning and subdivision of the Oakland City land [110-135]. 
Other issues that the court considered included: 

  • Striking from the record portions of the Campaign’s replying affidavits [17-24]. 
  • Remedies for any violations [106-109, 135]. 
  • Adequacy of notice and opportunity to comment on rezoning and subdivision of land [136-138]. 
  • Would any of the losing parties pay the winning party’s litigation costs [140-141]. 

What did the Court decide? 

(1) The PHA is not protected as “agricultural land” under the Subdivision of Agricultural Land Act [25-45] 

The Campaign argued that the Court should determine that the whole of the PHA was protected as agricultural land under the Subdivision of Agricultural Land Act 70 of 1970 (“SALA”). Such a determination would require additional approval to develop that Oakland did not receive. The Court found this argument problematic both on procedural and substantive grounds. 

Procedurally, the Court determined that although such a determination would affect all land owners within the PHA, these land owners might not have been provided notice of, or an opportunity to participate in, court proceedings. 

In addition, the Court also agreed with the City’s argument that because the applicable land had been officially designated for both horticulture and sand mining, it was not designated exclusively for agricultural purposes. The Court determined that under the terms of SALA and transitional planning law provisions this double designation excluded the PHA from coverage under SALA. “Consequently,” the Court concluded, “when Oakland submitted its application for the subdivision of its land in June 2015, the land was not agricultural land as defined in the SALA and the provisions of the SALA therefore did not apply.” [45.] 

(2) The City did not illegally shift the urban edge [46-55]

The Campaign argued that the MEC illegally shifted the urban edge in 2011 when he amended the urban structure plan without proper authority to do so, and that this decision “tainted” the separate decision taken in 2012 by the City of Cape Town to adopt the shifted boundaries in the Cape Town Spatial Development Framework (“CTSDF”). 

The Court noted that “[i]n the recommendation put to the MEC by provincial officials no mention was made of the statutory provision in terms of which he was empowered to take such a decision.” [48.] 

However, the Court determined that any potential problem with the MEC’s decision was nullified by adoption of the urban edge shift in the 2012 CTSDF. It is clear from the Court’s decision that it did not follow the Campaign’s argument regarding the connection between the illegality of the 2011 MEC decision and the 2012 CTSDF decision. Indeed, the Court expressly noted that the Campaign’s failure to sufficiently make this claim: “The applicants accept however that no challenge has been brought concerning the validity or otherwise of the 2012 CTSDF. When Mr [sic] Bridgman for the applicants was asked during argument why this was, he indicated that this was a conscious decision taken without the value of hindsight.” [52.] Accordingly, “without a challenge raised to the 2012 CTSDF, a review of the 2011 decision would produce a wholly academic result lacking in any tangible effect.” [54.] 

(3) The Provincial government failed to adequately consider the impact on the aquifer in approving the environmental authorization and exemption for the Oakland City proposal [56-108] 

The City argued that the MEC’s and DEADP’s approval the environmental authorization and exemption for the Oakland City proposal violated the Promotion of Administrative Justice Act (“PAJA”) by failing to take into account relevant considerations regarding the impacts of the proposed development on the aquifer/ground water, food security, climate change, land reform, heritage, the no-development alternative, need and desirability, cumulative impacts, and gaps in knowledge. The Campaign also argued that these decisions were not rationally connected to the information before the decision-maker. 

Regarding scoping reports and the environmental impact assessment prepared for the project, although the Court agreed that “[t]here is merit in the contention that there were impacts not expressly identified, or insufficiently considered” [78], it concluded that “the shortcomings complained of were limited to particular issues and were not sufficient to warrant a conclusion that the entire scoping and assessment was fundamentally flawed and non-compliant with the relevant statutory provisions” [78]. 

Similarly, the Court decided that, with one (significant) exception, DEADP and the MEC on appeal properly considered most of the relevant issues, including food security, heritage, and socio-economic considerations. [94.] 

The one major exception that the Court found to the decision-making involved consideration of the impacts of the proposed development on the aquifer. The Court noted that “[t]here appears to be merit in the applicants [sic] complaint that the groundwater study conducted was ‘wholly inadequate’ for the purposes of assessing the impact of on [sic] the aquifer more generally, with the only groundwater issue identified as a potential impact being ‘post mining ‘exposed’ groundwater’” [100]. The court also noted that the studies relied on in the decision-making were years old and did not address “the broader consideration of the preservation, health and recharge of the aquifer in the context of water scarcity and climate change so as to enable the decision-maker to assess the impact on the aquifer” [100]. 

 Although the Court found that the MEC on appeal took into more careful consideration the impact to the aquifer, the Court nevertheless found that the narrow and dated information in the available reports did not include an adequate assessment of the “health of the aquifer given climate change and water scarcity in the area” [102]. As a result, the Provincial government as a whole did not take into account relevant considerations, its approval of the proposed development violated PAJA. Furthermore, “[g]iven the limitations in the information before the MEC in this regard a decision was arrived at which was neither rational nor reasonable” under PAJA as well [103]. 

 The Court’s remedy for the violations was “to set aside the MEC’s ruling on appeal and remit the matter back to him for reconsideration of new evidence and reports relating to the aquifer” [107]. 

(4) The City failed to adequately consider the impact on the aquifer in approving rezoning and subdivision of the Oakland land [110-135] 

The Campaign sought review of the decisions of two City panels, the Interim Planning Committee’s November 2016 approval of the rezoning and subdivision of Oakland land, and the General Appeals Committee’s June 2017 decision to refuse appeal. The Court noted that “where a decision-maker is directed by law to consider particular issues . . . a risk-averse and careful approach especially in the face of incomplete information should be adopted; and the failure to take relevant considerations into account risks a determination that the decision reached was irrational or unreasonable” [130]. Regarding environmental considerations, “[w]hat was required of the relevant decision-makers was a consideration of relevant considerations concerning the preservation of the natural environment and the effect of the application on existing rights” [130]. 

Turning to the specific issue at hand, the Court noted that “[i]n relation to the aquifer, an assessment of the impact of development on it, having regard to the rights set out in s 24 of the Constitution and the provisions of NEMA and its regulations, required consideration of the impact of the rezoning and subdivision sought in relation to the aquifer as a large underground natural resource, its state, future and impact on issues related to water scarcity and climate change” [130]. 

 For largely the same reasons that the MEC did not properly assess the impacts to the aquifer, i.e. a lack of up-to-date reports specifically concerning the health of the aquifer, the Court held that in the case of the City “the relevant considerations were not considered in the determination of the appeal in relation to the aquifer and that this resulted in a decision which was neither rational nor reasonable having regard to the material before the General Appeals Committee on this issue” [134]. 

Other considerations, such as preservation of the nature and developed environment, were adequately taken into consideration by the City, according to the Court, based on the fact that “the Oakland land has not been farmed, does not produce vegetables and does not contribute to food security in the City currently” [131]. 

The Court determined that the appropriate remedy for the violation was to “remit the matter to the General Appeals Committee for a reconstituted appeal process to take place restricted to consideration of the desirability of the applications in the context of the preservation of the natural environment and the effect of the application on existing rights in relation to the aquifer in the context of climate change and water scarcity in the City” [135]. 

(5) Other issues decided by the Court 

The Court also: 

  • struck various statements provided in the Campaign’s reply affidavits, describing some of the language “intemperate” and the papers “prolix” [17-24]. 
  • held that of notice and opportunity to comment on rezoning and subdivision of land was adequate [136-138]. 
  • awarded costs to the Province, City, and Oakland City related to their cross motions for striking various portions of the Campaign’s amended reply; awarded costs to the Campaign related to issues regarding issues on which they prevailed [140-141]. 

What are the big take-aways from the case? 

First, the Campaign scored a major win in nullifying the Province’s environmental authorization and the City’s land use decisions, but the grounds for this victory is narrowly based on impact to the aquifer. Consideration of food security and socio-economic impact were not grounds for review.

Second, because the remedy for the Campaign’s successful claims is reconsideration by the same authorities, the Province and the City will have another chance to decide these issues. This provides the Campaign with further opportunity to make their case, but likewise allows the Province and the City to make the same decision again. 

Finally, the Court’s decision is very unfavourable in that the urban edge shift still stands. While appeal might be possible regarding this issue, a political or administrative solution, i.e. a decision by the City itself to reintegrate the Oakland City land into the PHA, would be a more straightforward position. Given the extensive evidence supporting this area's continued inclusion in the PHA, this decision would be easy for the City to justify, a decision even more compelling if the Oakland City development proposal is ultimately dropped.

Friday, January 31, 2020

South Africa’s Energy Grid Wake-Up Call, Part 3: Embedded Futures


Climate change and corruption are making the case for switching South Africa to a distributed network powered by renewable energy. This is the third of a three-part series that shows how.

See also Part 2, Circuit Overload (here or here), and Part 1, Planning for Failure (here or here).



Perhaps the only type of climate change-related article more common than the doomsday crisis story is the story about the next supposedly game-changing technological fix. This is not that (although, ok, it does reference technology). It is about the prospect of a different model for supplying the bloodline for modern society, one that addresses some of the major factors contributing to the mess that South Africa’ electricity grid finds itself in. As an alternative the centralized, asymmetrical system we have, South Africa could shift towards a dynamic embedded energy grid powered by a distributed network of largely renewable energy sources. Such a system presents the prospect for radical change to a hundred-year-old system. The transition will not be easy, but South Africa’s latest rounds of power outages teach an essential lesson: that the country can ill-afford to remain on its current path.

In order to comprehend a future built on embedded generation, one must understand the status quo. Conventional electric grids like South Africa’s are powered using centralized sources of energy, such as coal-fired power plants, gas-powered turbines and hydroelectric dams. These sources generate massive amounts of energy and that are often located far from where the electricity they produce is used. It is a highly asymmetrical system connecting a few energy producers with many, many energy consumers. While this configuration benefits from economies of scale, it also leaves the users more susceptible to failure when these plants break down or transmission is disrupted.

Enter embedded generation, also known in some parts as distributed generation.

Like a tree spreading up to millions of separate leaves to catch the sun’s light, an embedded grid relies on a myriad of small-scale and on-site power generators to produce energy. The one-way flow of energy is disrupted, and a dynamic grid in which users are also producers replaces it. Such systems require both infrastructural and legal adjustments, but the robustness and redundancy would pay dividends in climate-proofing the country.

Embedded generation’s distributed nature spreads the task of power generation, mitigating the risk of disruption of any one source. It is also incremental and can capitalize on advancements in clean renewable technologies that don’t exacerbate the climate problem. Solar and wind can be co-located next to people more easily than either massive industrial power plants or polluting diesel generators, and they are generally more efficient at converting energy into useable forms. And while the intermittent nature of solar and wind power—the sun doesn’t always shine, nor the wind always blow—has limited their usefulness in meeting steady “baseload” demand, new battery technology improvements have made great strides towards storing energy for later use. A diverse and embedded grid itself can also mitigate intermittency, drawing on different energy sources in different parts of the country to make up for lack of generation in other parts.

Embedded generation should not mean uniformity; it calls for a healthy mix of suppliers and sources at all scales, from large-scale generators to commercial independent power producers and on-site generation for self-consumption or sale back to the grid. There is also an important place for government-sponsored and community-based models and regulation to provide for the needs of all South Africans. In addition, energy efficiency measures and demand-side management, which involve curtailing waste, are also critical complementary strategies, and provide even more opportunities for commercial innovation, which can be paid for through savings created by increased efficiency. A grid that is both dynamic and efficient is better placed to confront the needs and challenges of the future. South Africa needs to start moving in that direction.

No doubt an embedded future would significantly disrupt the current financial and systematic model of South Africa's biggest electrical utility, Eskom. Eskom’s financial picture in particular, discussed previously in this series, is an important concern because the company acts not just as a generator of electricity under the current system but also as the distributor. But concern about Eskom’s financial state and the need for a coordinated distribution system shouldn’t be confused with good reasons for perpetuating an increasingly broken system. There will likely always be a role for integrated and coordinated control of the grid network, but so long as corruption and maladministration are problems, it seems prudent to minimize choke-points in the system that can be manipulated. The current system entrenches an unnecessary monopoly favoring an unbalanced approach to power supply. The financial stability of Eskom or other entity or entities coordinating the grid should be secured, but not simply for the sake of Eskom shareholders and at the expense of a more resilient energy system that would benefit all South Africans.

Eskom’s vertical monopoly on electricity is not necessary, as demonstrated in competitive energy markets like those in the United States. Entrenched business models and economic interests are not a sufficient justification for maintaining the status quo when alternative models would be better for consumers, the environment, and the industry itself in the long run. There is no overpowering basis for Eskom’s monopolization of electrical generation, and the history of state capture and poor service delivery in South Africa suggests that providing room for self-sufficiency and local control is sensible.

As a growing chorus of observers are noting, government support is needed for the transition to a more reliable and less environmentally destructive energy grid. National law and policy necessary for enabling embedded generation and renewable sources has been fragmented, moving in fits and starts. The Department of Energy’s plan for increasing renewable energy capacity over the long-term, including embedded generation, is positive but modest, and also doubles down on building additional coal capacity. Recent regulatory changes have helped loosen the red tape preventing small-scale generators from connecting to the grid, but the country still lacks the sort of policy support and investment that has catapulted small-scale generation in other countries. Unfortunately, but perhaps unsurprisingly, Eskom has dragged its feet in complying with existing law and in implementing distributed energy storage systems. In sum, significant regulatory and policy obstacles remain to implementing an embedded grid fed by renewable energy.

Whether or not the government is on-board, residents and businesses are already searching for embedded solutions. For Rubin, my grocer who I introduced in the first part of this series, it’s about seeking a more reliable power source for his business. The general consensus between store owners in his area is that load shedding will remain an issue. “A lot of businesses are moving away [from Eskom] and trying to get off-grid.” The cost of transitioning is an issue: “for a small business it’s really challenging because you don’t have the capital or the budget to invest in things like generators or solar power.” Nevertheless, he’s convinced it’s a change he and many others will have to undertake.

Monday, January 27, 2020

South Africa’s Energy Grid Wake-Up Call, Part 2: Circuit Overload

The climate crisis and corruption are making the case for switching South Africa to a distributed network powered by renewable energy. This is the second of a three-part series that shows how.

See also Part 1, Planning for Failure (here or here).

Climate change and corruption, two ephemeral forces lurking in the background, each composed of many discrete but interconnected events linking together to create seemingly unvanquishable scourges. Neither are unique to South Africa, yet the country appears particularly vulnerable to both. And so it was last month when intense rains tripped South Africa’s national electrical circuit, unleashing new electrical outages that hit historic highs, bringing new lows for a parastatal electrical utility already marred in scandals.

The overload of problems affecting South Africa’s electricity grid are many and varied, and include high rates of unplanned breakdowns at generation stations, massive corporate debt, increasing demand, aging infrastructure, delays in bringing on new power stations, and even potentially intentional sabotage. But despite all of the variety, the imprints of corruption and climate change in particular mark their destabilizing influence in the grid, whose own structure reveals itself to be particularly vulnerable to their impact. In other words, it is not just that the climate and corruption are clearly undermining the grid; it is also that the grid’s configuration is particularly sensitive to their impact. Last month’s outages capture a frame of this larger story.

A Grid Built on Coal, for Coal

The breaking point causing electrical outages last December came with heavy rains and extreme flooding in the eastern part of the country, causing damage to infrastructure and rendering coal supplies unusably damp at some of Eskom’s coal-fired power stations. Eskom’s and the country’s problems with coal go much deeper than dampness, however. It is not news that South Africa is and will continue to become more prone to extreme weather events. The Intergovernmental Panel on Climate Change, the world’s foremost group of scientists studying the issue, has predicted an increasing likelihood of extreme weather events in South Africa, including extreme flooding in the wetter southeastern areas of the country even as the southwestern areas experiences dryer conditions.

South Africa’s own government has acknowledged what the science says about the climate crisis, and has even moved to address the issue in national and local policies. But a variety of factors challenge progress, including countervailing economic pressures and an entrenched domestic fossil fuel industry. Elsewhere, research indicates that increasing extreme weather events and other climate change factors will impact electricity grids in a way underestimated by utility officials themselves.

While on the one hand South Africa’s grid will need to deal with the burden of a changing climate, on the other hand its supply mix is exacerbating the very problem it faces, not to mention more immediate air pollution issues that affect human health. Eskom is responsible for supplying 95 percent of the country’s power, and 90 percent of its supply is generated through coal-fired power plants. Overall, coal provides more than 77 percent of South Africa’s energy needs, contributing to the country’s outsized carbon footprint.

In contrast, renewable energy accounts for a tiny fraction of Eskom’s energy mix. According to Eskom, only a tiny sliver of its own generation is derived from wind or solar, with independent power producers providing most of the still small total amount utilized. Moreover, Eskom has spent years and hundreds of billions of rands (tens of billions of dollars) building new coal power plants, which are now long delayed and far over budget. This in a country blessed with significant wind and solar resources.

The result is a country overdependent on Eskom for power and on coal for energy, at a time when most of the rest of the world is seeking to ratchet down carbon emissions in the face of the climate crisis. Yet the system built on coal is also built for coal, with highly centralized and asymmetrical generation and distribution networks reliant on massive coal mines and mammoth coal-fired power plants. It is unsurprising then that this model’s best approach to satisfying the country’s energy needs is through more extractive mining and coal-leaning industrial-sized generation. The unfortunate consequence, as last month suggests, is a lack of resilience in the system and higher susceptibility to large-scale blackouts when a small number of generation sources are disrupted.

Choke Points and Monopolies

Were it that South Africa’s over-reliance on coal was its only issue. Eskom’s track record of poor execution and delivery of projects is no secret, but the troubles appear to go beyond mere maladministration. Early last year, South African media exposed the findings of an unpublished report by South Africa’s anti-corruption Special Investigating Unit concluding that in 2008 Eskom officials intentionally ignored coal supply issues to induce a “self-created emergency” leading to South Africa’s first experience with load shedding. Having precipitated a crisis, Eskom officials apparently bypassed normal procurement processes to enter into shady energy contracts with third party coal providers at massively inflated rates.Another 2015 report by the international law firm Dentons indicated that similar contracting irregularities may have been implicated in further load shedding events in 2014. South African media have also highlighted how politically connected businessmen have profited from contracts whose terms are unfavorable to Eskom. In some cases, these parties have either delivered poor quality products or services, or have not delivered at all. Eskom’s history with other large infrastructure projects is similarly suspect. For instance, its aborted deal regarding new nuclear generation has likewise faced its own corruption scandals.

Meanwhile, Eskom faces staggering debt and a financial model that has struggled to keep up with mounting maintenance and repair issues, another factor in the December crisis and other load shedding events. The financial viability of utilities such as Eskom is based on increasing profit margins from the sale of power to customers while lowering marginal production costs through largescale centralized generation. In other words, Eskom’s strategy is to make more and sell more (coal-fired) power in order to make up for financial shortfalls, or else seek direct help from the government and, ultimately, tax-payers.

Certainly, problems regarding corruption and financial solvency do not stem solely from the highly centralized and vertical nature of South Africa’s grid. It is easy to see, however, how such a structure and Eskom’s “too big to fail” role in the electricity market would create opportunities for graft and mismanagement. Monopolies over technical and managerial expertise and information, as well as over centralized public services themselves, can help facilitate opportunities to illegally leverage that power, while highly bureaucratic systems detached from the communities they serve are prone to abuse because of a lack of accountability. Eksom’s role in maintaining the grid, and its operational and financial structure, create the very choke points and monopolies that can be easily used in the service of corruption.

In a country and world increasingly susceptible to extreme weather events, the already thin margin of error in managing a national electrical grid becomes threadlike. Scientists warn us to expect climate change to magnify problems caused by Eskom’s history of mismanagement and over-reliance on a centralized system built on coal, a prime contributor to the atmosphere’s CO2 levels. Yet South Africa’s grid is tethered to coal and a highly centralized structure that go hand-in-hand, leaving it exposed to the corrosive effects of climate change and corruption. The question is, are South African’s willing to accept more of the same? 

Up next: Part 3, Embedded Futures.

Friday, January 17, 2020

South Africa’s Energy Grid Wake-Up Call, Part 1: Planning for Failure

The climate crisis and corruption are making the case for switching South Africa to a distributed network powered by renewable energy. This is the first of a three-part series that tells that story.

The warning was as sudden as it was shocking. “We regret and sincerely apologise that stage 4 load shedding will move to Stage 6 load shedding as from 18:00 today, as a result of a shortage of capacity,” South Africa’s national electric utility Eskom announced via social media late one Monday afternoon last month. The cause: damage to infrastructure and coal supplies from heavy rains and flooding in parts of the country. With that, South Africans were given twenty minutes’ notice that Eskom was turning off the lights on more than a third of the country for the indefinite future. Residents, companies, and even municipal utilities for large cities such as Johannesburg were left scrambling to prepare and locate undisclosed schedules for when their areas would experience outages. And, predictably, people took to Twitter to vent their frustration—often, as is the case here in South Africa, through gallows humor.


The cascading effects of a major power shortage were made obvious immediately after Eskom’s announcement. The major telecommunications company Vodacom notified the public that the batteries backing up its cell phone towers might not bridge the gap between load shedding events at a Stage 6 level, potentially leaving people without their primary means of communicating and obtaining information. The byzantine nature of Eskom’s scheduled outages prompted news outlets and app developers to produce their own maps and features to help people figure out how long they would be in the dark.



Here in the City of Cape Town, where I reside and which is recovering from a historic drought, City officials warned that the outages could affect the metropolitan water supply. Portions of the city’s water system were in fact shut down for hours just as people started fixing dinner, as I later heard from a friend in another part of the city with firsthand experience.



Eskom, a massive South African state-owned enterprise, implements intentional rolling power outages, known as load shedding, as a precautionary measure when it determines that demand will outstrip supply, thereby avoiding an overdraw on system capacity that would trigger an unplanned total power failure of the national grid, a calamity that it says would take weeks to rectify. The unique nature of electrical power grids necessitates a minute-by-minute, country-wide assessment of the balance between power generation and largely predictable swings in consumption, which are dictated by the rhythms of daily life. It is an admittedly delicate dance that necessitates quick reactions. Hence the laughably short warning provided to the public last month.



Load shedding has become a burdensome, if occasional, part of life for South Africans over the past decade. However, December’s Stage 6 event was unprecedented in scale and duration, resulting in large swaths of the country experiencing no power for much of a night. Designated load shedding levels beyond Stage 4 hadn’t even been discussed publicly until earlier this year. Stage 8, theoretically the highest and most painful level provided for, would result in half of the country being without power, although some experts say that full system failure could occur even before Stage 8 is reached.



Foremost in the minds of many South Africans is the impact on the economy and livelihoods. South Africa’s economy, the second largest in Africa, has been wobbly over the past several years, hampered by security issues, high income inequality, and corruption. Its electricity woes are not helping. The World Economic Forum has noted the country’s inefficient electricity supply as a challenge to its economy. Load shedding brings an acute dimension to this shortcoming. Altogether, estimates of the impact of load shedding events on South Africa’s economy put the cost in the tens of billions of Rands (billions of U.S. dollars) last year.



In order to get a better sense of the economic impact at the ground level, I got in touch with Paul Rubin, the owner of a local organic bulk foods grocery that I shop at in Cape Town’s City Bowl. When I asked him if he had a minute to share his experience with load shedding as a business owner, he asked if I had an hour. Rubin called the effects of the load shedding crippling, particularly for local stores like his. While a grocery might not strike someone as the most electricity-dependent enterprise, an outage can affect critical elements such a refrigeration and payment systems.  “There’s no warning. It just starts… and it’s a mad scurry to try and survive.” Another local business manager I spoke with echoed Rubin’s sentiment.



The toll is not just economic, but also social and even psychological. Hospitals, schools, and libraries all may be drastically impacted. Traffic lights and streetlamps darken, impacting safety and security. People look on with dread as their cell phone batteries drain down. The modern city and modern life, fueled by electricity, can feel isolating and hostile without it.



The perils of infrastructure failure are distributed unequally in an unequal society. South Africa, you may have heard, has an economic inequality problem. It is in the unenviable position of being world’s reigning Gini Coefficient champion (a common measure inequality). As with other types of infrastructure and public service delivery, the burden of Eskom’s power cuts is borne disproportionately by South Africa’s poor. Larger companies and those living in upscale apartments or in households that can afford diesel generators or solar panels are able to ride out load shedding, albeit with an impact on their wallets. South Africa’s impoverished communities, which were poorly served as a point of policy under the Apartheid era, are now facing power cuts without the resources to mitigate the impacts. Inequality is now enforced by the market as well as the grid.



Eskom’s December foray into uncharted territory was short lived. By the next day, Eskom had reduced the load shedding schedule to Stage 4, and it kept it at a now tame-seeming Stage 2 for most of the remaining week before returning to normal by the weekend. However, industry and official forecasts predict that load shedding will continue to occur for the foreseeable future. As predicted, the country has continued to experience load shedding events, including for much of early January.



In today’s society, where electricity literally powers our way of life, the suddenness of load shedding is more than an inconvenience. Power outages have real consequences on people’s livelihoods, well-being, health, and safety, and their increased frequency and intensity suggests dramatic changes are needed. In order to get there, South Africans need to heed the wake-up call and learn what we can from the past in order to change course. It’s time to stop planning for failure, and instead start planning for the future.



Up next: Part 2, Circuit Overload.

Sunday, November 17, 2019

Confronting the City of Cape Town’s PHA “Myths”

What level of condescension is implied in calling something a myth? In his arguments before the Western Cape’s High Court on 15 October, the City of Cape Town’s advocate Ron Paschke laid out a series of what he called myths that he argued underly the case against a proposal to develop 472 hectares of land located in the southern portion of Cape Town’s Philippi Horticultural Area (PHA).

The dispute at issue is between a developer proposing to turn the site into a 15,000-home mixed use community called Oakland City, and the PHA Food and Farming Campaign (PHA Campaign), a grassroots farmers’ organisation that is contesting the proposal. The City of Cape Town and the Western Cape Province are also parties to the case, having sided with the developer in opposition to the PHA Campaign in court. The City and Province both deny that they inappropriately approved aspects of the Oakland City proposal.

All of advocate Paschke’s asserted “myths” are rebuttable, but the following ones in particular (slightly rearranged) reveal fundamental misconceptions regarding the essence of the PHA Campaign’s arguments.

“The Oakland City site is part of the PHA”

Incredibly, the City argued in court that the Oakland City site is not actually part of the PHA, despite a long history of documentation, and even the City’s current proposed heritage zone designation, that indicate otherwise. The Province’s own study describes how since the 1960s the PHA, including the Oakland City site, has been designated as horticultural land.

It was not until the past few years that the City and Province took a number of actions to chip away at the PHA’s boundaries. In particular, the City hangs its hat primarily on a change to its Metropolitan Spatial Development Framework in 2012, presaged by a similar 2011 Provincial decision, that shifted the “urban edge” of the city to include the Oakland City site, thereby severing it from the PHA territory. These actions, the PHA Campaign contends, were unlawful and contrary to national law and policy.

The City’s reliance on the 2011/2012 urban edge shift to support the Oakland City site’s deletion from the PHA is akin to renaming District Six. The City cannot so easily erase the site’s historical and physical, not to mention legal, connection to the PHA. The Oakland City site is by no extent of the imagination urban; rather its use and features follow the trajectory, now disrupted, of the rest of the PHA.

“The Oakland City site is farmland that provides food for Cape Town”

The City and Province argued that none of the Oakland City site has been farmed, verbally footnoting that there has previously been “illegal” farming on a small portion of the land. One reason the land isn’t being farmed right now is that the owner—the developer—will not permit it. This is in contrast to farmed areas on adjacent land also held by developers.

What the City and Province also did not note was that a significant portion of the Oakland City site has been sand dune mined and then neglected, rather than rehabilitated to productive farmland as required under the law. Historically, PHA farmland has been established according to a process of sand dune mining followed by rehabilitation for farming purposes. This process has slowly progressed in patchwork form over the decades. It is therefore unsurprising that portions of the PHA have not yet been farmed.

The City made much in its arguments before the court that the Oakland City site is not currently producing food or jobs, and that it is not suitable for farming. The Oakland City site shares the same general physical, hydrological, and climatic features as the rest of the PHA, including what the Province’s own study states is the best suited land for agriculture within 120 kilometres of the city. Portions of the PHA has been farmed for well over 100 years, long before the introduction of modern fertilizers and water systems that the City argues is necessary for its cultivation. Governmental and non-governmental studies alike demonstrate the importance that the PHA plays in food production for the city, as a producer for particularly food-insecure populations and as regulator of broader market prices for the city.

“Farming is beneficial for the aquifer”

The City argued that farming the Oakland City site would pollute the aquifer with fertilizer and chemical runoff. The City never actually conducted an assessment regarding farming as an alternative to the proposed development. Instead, the government relied on the Oakland City site’s reinvention as an “urban” area to avoid considering farming uses, thanks to the previously mentioned urban edge shift in 2011/2012. This means neither the City nor the Province has properly weighed the costs and benefits of urban development versus farming.

There is evidence that the aquifer is impacted by ecologically damaging farming practices. This is not a reason to stop farming, but instead to shift our farming practices to more sustainable means. Claims that small-scale commercial organic farming cannot work sound very similar to the arguments against the shift to carbon neutrality. To say that we must take action to avoid imperiling the environment and our future is not to say it will be easy, but that does not mean it cannot or should not be done. Moreover, such a shift in farming practices is possible. For example, in Munich, city officials have engaged in a decades-long project to protect their aquifer and source of water through sustainable farming practices above its recharge zone.

“Development is undesirable and will endanger the aquifer”

The City’s advocate made much of the benefit that the development proposal’s 15,000 homes would bring to the city. But are these homes for the poor? Will they house the thousands of people living in informal settlements within and around the PHA? Are they located near existing infrastructure? Will they be efficiently located and address Cape Town’s spatial fragmentation and traffic congestion?

The answer is no. The City’s own analysis concludes that the PHA’s high water table effectively makes subsidized housing on the site cost-prohibitive, and developers are under no obligation to provide any. The development will require completely new infrastructure, including roads, water and sewage pipes, and electrical lines. In a city with 10,000 other well located housing opportunities, and with a damning legacy in spatial segregation, poor service delivery, traffic congestion, and strained public coffers, putting houses in the middle of designated farmland seems like a particularly unsuitable option.

In truth, this development proposal follows a line of poorly planned developments offered under the guise of solving the City’s housing problems, but which in fact perpetuate the social and spatial dislocation of the city. In this manner the Oakland City project mirror’s the ill-fated Wescape project, which proposed thousands of homes in Cape Town’s hinterland within a nuclear fallout area. The PHA, including the Oakland City site, is similarly unsuitable for largescale urban development. One need only to read Crispian Olver’s new book on corruption in Cape Town to get a sense of the fishiness of the Oakland City project proposal.

“The High Court can decide to protect the PHA”

Finally, the City’s counsel also argued that the judge sitting hearing the case is not empowered to question the City’s policy decision with respect to the designation of the Oakland City site as “urban”. This runs in direct contrast to the position the City takes in its most recent amendment to the Municipal Spatial Development Framework, in which essentially defers to the court, stating that if the court rules in the PHA Campaign’s favor, the site should be considered again to be part of the PHA. More broadly, the City and the Province have committed in writing to protecting and investing in the PHA. Their arguments in court suggest otherwise.

Critics of the PHA Campaign complain that it doesn’t represent all farming interests in the PHA. They are correct on that point. The PHA Campaign isn’t interested in repeating mistakes of the past, either with respect to the city’s urban development or harmful farming practices. What the PHA Campaign does embody is a vision for the PHA as supporting Cape Town at the vanguard of sustainable, food-secure, socially just cities.

The City’s asserted myths about the PHA do not hold up against the weight of evidence. More than that, they themselves distort and obscure the harm the City’s actions continue to perpetuate against the interests of its people. Who is really peddling in myths?

A shorter version of this piece appeared in the Cape Argus on 17 November, 2019. The full version was subsequently published by BizCommunity on 19 November, 2019.