Osmers NO and Another v Eskom Holdings Limited and Another; Osmers v Eskom Holdings Limited and Another (A377/15; A377/2015) [2016] ZAGPPHC 1091 (14 December 2016)

Osmers NO and Another v Eskom Holdings Limited and Another; Osmers v Eskom Holdings Limited and Another (A377/15; A377/2015) [2016] ZAGPPHC 1091 (14 December 2016)

The court found that the appellants failed to prove that they are third parties as contemplated by section 22(3) of the Electricity Regulation Act. The definition of 'customer' in the Act applies to the appellants, and the relief sought under section 22(3) is not available to them. Eskom's refusal to supply electricity was based on unpaid debts and did not constitute discrimination. The coordinated actions of the appellants in using the juristic personalities of Amoret and the Trust to avoid payment for electricity justified lifting the corporate veil for the purpose of determining Eskom's obligations. However, as no declaratory order or relief was sought against Amoret, there was no...

Citation
[2016] ZAGPPHC 1091
Parties
Appellant: Eugene Benjamin Osmers N.O.; Appellant: Hazel Haynes N.O.; Respondent: Eskom Holdings Limited; Respondent: National Energy Regulator
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 December 2016
Case Number
A377/15; A377/2015
Procedural Posture
Civil Appeal / Appeal From Dismissal of Application for Declaratory and Interdictory Relief
Outcome
Appeals dismissed with costs.
Judges
R G Tolmay, S P Mothle, N Janse Van Nieuwenhuizen
Legal Topics
Electricity Regulation Act, Piercing Corporate Veil, Non Discriminatory Access, Declaratory Relief, Mandatory Interdict
Administrative Law Commercial and Corporate Electricity Regulation Act Piercing Corporate Veil Non Discriminatory Access Declaratory Relief Mandatory Interdict

Case Brief

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Parties

Eugene Benjamin Osmers N.O.

Appellant

Hazel Haynes N.O.

Appellant

Eskom Holdings Limited

Respondent

National Energy Regulator

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Application for Declaratory and Interdictory Relief

Legal Issues

  1. 1 Whether the appellants qualify as third parties under section 22(3) of the Electricity Regulation Act.
  2. 2 Whether Eskom is obliged to provide non-discriminatory access to the power system to the appellants.
  3. 3 Whether the corporate veil should be pierced to prevent abuse of juristic personality in electricity supply agreements.

Ratio Decidendi

The court found that the appellants failed to prove that they are third parties as contemplated by section 22(3) of the Electricity Regulation Act. The definition of 'customer' in the Act applies to the appellants, and the relief sought under section 22(3) is not available to them. Eskom's refusal to supply electricity was based on unpaid debts and did not constitute discrimination. The coordinated actions of the appellants in using the juristic personalities of Amoret and the Trust to avoid payment for electricity justified lifting the corporate veil for the purpose of determining Eskom's obligations. However, as no declaratory order or relief was sought against Amoret, there was no...

Court Disposition

Appeals dismissed with costs.

Orders

  • The appeals in both application 28214/2014 and 28157/2014 are dismissed.
  • The appellants are ordered to pay the costs of the appeal relating to each of the applications.