National Energy Regulator of South Africa and Another v Borbet SA (Pty) Ltd and Others (24364/2016) [2016] ZAGPPHC 945 (17 November 2016)
The court found that the interpretation of the MYPD3 methodology is central to the dispute and that it is possible another court may interpret its provisions differently. Given the significant consequences for electricity consumers, the South African economy, and the applicants, the court determined that there are...
Source-derived case information.
- Citation
- [2016] ZAGPPHC 945
- Parties
- Applicant: National Energy Regulator of South Africa; Applicant: Eskom Holdings SOC Ltd; Respondent: Borbet SA (Pty) Ltd; Respondent: PG Group (Pty) Ltd; Respondent: Crown Chickens (Pty) Ltd; Respondent: Agni Steels SA (Pty) Ltd; Respondent: Autocast South Africa (Pty) Ltd t/a Autocast Port Elizabeth; Respondent: Nelson Mandela Bay Business Chamber
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 24364/2016
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment and Order Handed Down on 16 August 2016.
- Outcome
- Leave to appeal granted to the Supreme Court of Appeal; costs of the application to be costs in the appeal.
- Judges
- C Pretorius
- Legal Topics
- Leave to Appeal, Superior Courts Act, Interpretation of Regulatory Methodology, Costs in Appeal
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
National Energy Regulator of South Africa
Applicant
Eskom Holdings SOC Ltd
Applicant
Borbet SA (Pty) Ltd
Respondent
PG Group (Pty) Ltd
Respondent
Crown Chickens (Pty) Ltd
Respondent
Agni Steels SA (Pty) Ltd
Respondent
Autocast South Africa (Pty) Ltd t/a Autocast Port Elizabeth
Respondent
Nelson Mandela Bay Business Chamber
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment and Order Handed Down on 16 August 2016.
Legal Issues
- 1 Whether leave to appeal should be granted against the judgment and order handed down on 16 August 2016.
- 2 Whether there are reasonable prospects of success or other compelling reasons for the appeal to be heard.
- 3 Whether the interpretation of the MYPD3 methodology warrants consideration by another court.
Ratio Decidendi
The court found that the interpretation of the MYPD3 methodology is central to the dispute and that it is possible another court may interpret its provisions differently. Given the significant consequences for electricity consumers, the South African economy, and the applicants, the court determined that there are reasonable prospects of success or compelling reasons for the appeal to be heard. Accordingly, leave to appeal against the whole of the judgment and order was granted to the Supreme Court of Appeal.
Court Disposition
Leave to appeal granted to the Supreme Court of Appeal; costs of the application to be costs in the appeal.
Orders
- Leave to appeal against the whole of the judgment and order handed down on 16 August 2016 is granted to the Supreme Court of Appeal.
- The costs of this application are to be costs in the appeal.
Full Case Text
Judgment text and source record
63 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case number: 24364/2016
Date: 17 November 2016
In the matter between:
THE NATIONAL ENERGY REGULATOR OF SOUTH AFRICA FIRST APPLICANT
ESKOM HOLDINGS SOC LTD SECOND
APPLICANT
And
BORBET SA (PTY) LTD FIRST
RESPONDENT
PG GROUP (PTY) LTD SECOND
RESPONDENT
CROWN CHICKENS (PTY) LTD THIRD
RESPONDENT
AGNI STEELS SA (PTY) LTD FOURTH
RESPONDENT
AUTOCAST SOUTH AFRICA (PTY) LTD t/a
AUTOCAST PORT ELIZABETH FIFTH
RESPONDENT
NELSON MANDELA BAY BUSINESS CHAMBER SIXTH RESPONDENT
JUDGMENT
(LEAVE TO APPEAL)
PRETORIUS J,
(1) I have considered the heads of argument of both the first and second applicants, as well as the notice of application for leave to appeal.
(2) It is so that the respondents indicated that:
"Although the Applicants are not in agreement that either NERSA or Eskom has any prospects of success on Appeal, we are instructed that the Applicants shall abide the decision of the Court in relation to the Application for Leave to Appeal. The Applicants do so in order to expedite the matter and in an attempt to ensure that a final authoritative Judgment is handed down promptly.
…
Please note that, by doing so, the Applicants are not making any concession or admission that NERSA or Eskom is entitles to any relief, and the Applicants' rights are fully reserved. "[1]
(3) Although the respondents are abiding the decision of the court in this application, it does not mean that leave to appeal should be granted automatically. The court still has to consider the provisions of section 17(1)(a)(i) and (ii) of the Superior Courts Act.[2]
(4) In terms of section 17(1)(a)(i) of the Superior Courts Act[3] leave to appeal would be granted if the appeal "would have a reasonable prospect of success" or in terms of section 17(1)(a)(ii) "there is some other compelling reason why the appeal should be heard".
(5) In the present instance the interpretation of the MYPD3 methodology is of prime importance. I find that it is possible that another court may interpret the provisions of the application of the MYPD3 methodology in a different manner.
(6) At the outset, when the application was heard, it was common cause that the issues that were argued and the findings by the court would have huge consequences, not only to the consumers of electricity, but also to the South African economy and the two applicants.
(7) I therefore make the following order:
1. Leave to appeal against the whole of the judgment and order in the abovementioned case number handed down on 16 August 2016 is granted to the Supreme Court of Appeal.
2. The costs of this application are to be costs in the appeal.
_________________
Judge C Pretorius
Case number
: 24364/2016
Matter heard on
: 17/11/2016
For the First Applicant
: Adv DM Fine SC
Adv A Pantazis
Instructed by
: Hogan Levells (SA) Inc
For the Second Applicant : Adv JJ Gauntlett SC
Adv SM Lebala SC
Adv EM Baloyi-Mere
Instructed by
: Ledwaba Mazwai Attorneys
For the Respondents : Adv ON Unterhalter SC
Adv M Du Plessis
Adv J Mitchell
Adv ALS Msimang
Instructed by
: Couzyn Hertzog & Horak
Date of Judgment
: 17 November 2016
[1] Letter dated 1 November 2016
[2] Act 10 of 2013
[3] Supra