Botha and Others v Eskom Holdings SOC Ltd; Van Zyl and Others v Eskom Holdings SOC Ltd (3878/2021) [2023] ZAFSHC 45; 2024 (2) SA 322 (FB) (15 February 2023)

Parties

Procedural Posture

Civil Procedure / Special Plea Regarding Statutory Notice Requirement

Legal Issues

1. 1 Whether Eskom Holdings SOC Ltd is an organ of state to which the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 applies.
2. 2 Whether plaintiffs were required to give statutory notice to Eskom before instituting legal proceedings for damages.

Ratio Decidendi

The court held that Eskom Holdings SOC Ltd is not an organ of state to which the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 applies. The Act's definition of organ of state is narrower than the constitutional definition and does not include entities exercising public functions in terms of legislation other than the Constitution. Eskom performs its functions under specific statutes, not under the Constitution, and is not listed in the Act or its schedule. Therefore, the plaintiffs were not required to give statutory notice to Eskom before instituting proceedings for damages. The special pleas raised by Eskom were dismissed, and costs were awarded to the...

Court Disposition

Special pleas dismissed. Costs awarded to plaintiffs.

Orders

• The special pleas are dismissed.
• The defendant is ordered to pay the plaintiffs’ costs in the various actions in relation to the special pleas, inclusive of the costs of the plaintiffs employing senior counsel.