Eskom Holdings SOC Ltd v Botha and Others (A97/2023) [2024] ZAFSHC 204 (3 July 2024)

Parties

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Special Pleas; Judgment on Merits

Legal Issues

1. 1 Whether Eskom Holdings SOC Ltd qualifies as an 'organ of state' under section 1(1)(c) of the Institution of Legal Proceedings Against Certain Organs of State Act.
2. 2 Whether the respondents were required to give notice to Eskom in terms of section 3 of the Act before instituting proceedings.
3. 3 Whether the broader constitutional definition of 'organ of state' applies for the purposes of the Act.

Ratio Decidendi

The court held that Eskom Holdings SOC Ltd does not qualify as an 'organ of state' for the purposes of section 1(1)(c) of the Institution of Legal Proceedings Against Certain Organs of State Act, as its powers and functions are exercised in terms of enabling legislation and not directly in terms of the Constitution. The Act provides notice protection only to certain organs of state specifically identified by its restrictive definition, not to all entities performing public functions. The reasoning in Pegma Thirteen Investments was found to be incorrect and should not be followed. Eskom never had statutory notice protection prior to the Act, and the Act was not designed to extend such...

Court Disposition

Appeal dismissed with costs, including costs of application for leave to appeal and costs of respondents' employment of senior counsel.

Orders

• The appeal is dismissed with costs, including the costs of the appellant’s application for leave to appeal and the costs of the respondents’ employment of senior counsel.