Topigs Norsvin SA Proprietary Limited v Eskom Holdings SOC Ltd and Others (013715/2022) [2024] ZAGPPHC 848 (28 August 2024)
- Citation
- [2024] ZAGPPHC 848
- Status
- Order
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- ML Twala
- Case number
- 013715/2022
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- ML Twala
- Case number
- 013715/2022
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that NERSA is an organ of state established under section 3 of the National Energy Regulator Act, with a mandate focused on licensing and compliance with licence conditions for electricity generation and transmission. There is no statutory provision empowering NERSA to enforce environmental compliance or to compel Eskom to desist from pollution at Kusile Power Station. The applicant failed to demonstrate that NERSA has a duty to protect against environmental degradation downstream of the power station. The omission to make a finding against NERSA in the main judgment was a patent error, which the court corrected under Rule 42. Accordingly, the application against NERSA was dismissed.
Court disposition
The application against NERSA, the nineteenth respondent, is dismissed with no order as to costs.
Orders
- The application against NERSA, the nineteenth respondent, is dismissed with no order as to costs.
02
Material facts
Parties
Topigs Norsvin SA Proprietary Limited
Applicant Counsel: MM Oosthuizen SC, N FourieEskom Holdings SOC Ltd
Respondent Counsel: P Lazarus SC, B DhladhlaAndre Marinus de Ruyter
Respondent Counsel: P Lazarus SC, B DhladhlaCalib Cassim
Respondent Counsel: P Lazarus SC, B DhladhlaMalegapuru William Makgoba
Respondent Counsel: P Lazarus SC, B DhladhlaBanothile Charity Makhubela
Respondent Counsel: P Lazarus SC, B DhladhlaPulane Elsie Molokwane
Respondent Counsel: P Lazarus SC, B DhladhlaBusisiwe Mavuso
Respondent Counsel: P Lazarus SC, B DhladhlaRoderick de Brassic Crompton
Respondent Counsel: P Lazarus SC, B DhladhlaTshepo Herbert Tong-Mongalo
Respondent Counsel: P Lazarus SC, B DhladhlaMlawuli Mayor Majingolo
Respondent Counsel: P Lazarus SC, B DhladhlaDeidre Herbst
Respondent Counsel: P Lazarus SC, B DhladhlaBongumusa Mashazi
Respondent Counsel: P Lazarus SC, B DhladhlaLesiba Kgobe
Respondent Counsel: P Lazarus SC, B DhladhlaMinister of Water and Sanitation
Respondent Counsel: A Liversage SC, L MaiteDirector-General: Department of Water and Sanitation
Respondent Counsel: A Liversage SC, L MaiteMinister of Forestry, Fisheries and the Environment
Respondent Counsel: A Liversage SC, L MaiteForestry, Fisheries and the Environment
Respondent Counsel: A Liversage SC, L MaiteNational Energy Regulator of South Africa
Respondent Counsel: MahlanguClive Raymond Le Roux
Respondent Counsel: P Lazarus SC, B DhladhlaPaul Mpho Makwana
Respondent Counsel: P Lazarus SC, B DhladhlaAustin Leslie Mkhabela
Respondent Counsel: P Lazarus SC, B DhladhlaBusisiwe Vilakazi
Respondent Counsel: P Lazarus SC, B DhladhlaLwazi Leon Goqwana
Respondent Counsel: P Lazarus SC, B DhladhlaFathima Bee Bee Abdul Gany
Respondent Counsel: P Lazarus SC, B DhladhlaAnyanda Pearl Zinhle Mafuleka
Respondent Counsel: P Lazarus SC, B DhladhlaTskani Lotten Mthombeni
Respondent Counsel: P Lazarus SC, B DhladhlaBeki Zacharia Ntshalintshali
Respondent Counsel: P Lazarus SC, B DhladhlaNteto Nyathi
Respondent Counsel: P Lazarus SC, B DhladhlaTryphosa Ramano
Respondent Counsel: P Lazarus SC, B DhladhlaClauselle von Eck
Respondent Counsel: P Lazarus SC, B Dhladhla03
Procedural history
Posture
Rule 42 Application / Application for Correction of Judgment Under Rule 42
04
Questions and positions
Legal issues
- 01
Whether the National Energy Regulator of South Africa (NERSA) has the statutory power or duty to enforce environmental compliance at Kusile Power Station.
- 02
Whether the omission to make a finding against NERSA in the main judgment constitutes a patent error requiring correction under Rule 42.
- 03
Whether the applicant demonstrated a legal basis for relief against NERSA.
Party arguments
- Applicant
- The applicant argued that NERSA, as the licensing authority for electricity generation, has a duty to enforce compliance with environmental standards and prevent pollution and degradation downstream of Kusile Power Station. The applicant maintained that NERSA's regulatory mandate includes oversight of Eskom's compliance with licence conditions, which should encompass environmental obligations.
- Respondent
- NERSA contended that its statutory mandate under the National Energy Regulator Act and the Electricity Regulator Act is limited to licensing and compliance with licence conditions relating to electricity generation and transmission. NERSA argued that it does not have the power to enforce environmental compliance or to compel Eskom to desist from pollution, as such powers are not provided for in the relevant statutes.
05
Court’s reasoning
Legal principles
- 01
Rule 42, Uniform Rules of Court
A court may correct a patent error in its judgment under Rule 42 of the Uniform Rules of Court.
- 02
National Energy Regulator Act 4 of 2006; Electricity Regulator Act 40 of 2006
The National Energy Regulator of South Africa's powers are limited to those conferred by the National Energy Regulator Act and the Electricity Regulator Act, which do not include enforcement of environmental compliance.
06
Ratio, limits and disposition
Ratio decidendi
The court found that NERSA is an organ of state established under section 3 of the National Energy Regulator Act, with a mandate focused on licensing and compliance with licence conditions for electricity generation and transmission. There is no statutory provision empowering NERSA to enforce environmental compliance or to compel Eskom to desist from pollution at Kusile Power Station. The applicant failed to demonstrate that NERSA has a duty to protect against environmental degradation downstream of the power station. The omission to make a finding against NERSA in the main judgment was a patent error, which the court corrected under Rule 42. Accordingly, the application against NERSA was dismissed.
Obiter and limits
- The court regrets the oversight in the main judgment and commends the parties for their cooperation in facilitating the correction under Rule 42.
- The applicant reserved its rights to amend its application and grounds for leave to appeal following this correction.
Court disposition
The application against NERSA, the nineteenth respondent, is dismissed with no order as to costs.
- The application against NERSA, the nineteenth respondent, is dismissed with no order as to costs.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Order
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 013715/2022
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
Date: 28/08/2024
ML
TWALA
In the matter between:
TOPIGS
NORSVIN SA PROPRIETARY
LIMITED
APPLICANT
And
ESKOM
HOLDINGS SOC LTD
FIRST
RESPONDENT
ANDRE MARINUS de
RUYTER
SECOND RESPONDENT
CALIB
CASSIM
THIRD RESPONDENT
MALEGAPURU
WILLIAM MAKGOBA
FOURTH
RESPONDENT
BANOTHILE
CHARITY MAKHUBELA
FIFTH RESPONDENT
PULANE
ELSIE MOLOKWANE
SIXTH RESPONDENT
BUSISIWE
MAVUSO
SEVETH RESPONDENT
RODERICK de BRASSIC CROMPTON
EIGHT RESPONDENT
TSHEPO HERBERT TONG-MONGALO
NINTH RESPONDENT
MLAWULI
MAYOR MAJINGOLO
TENTH RESPONDENT
DEIDRE
HERBST
ELEVENTH RESPONDENT
BONGUMUSA
MASHAZI
TWELFTH RESPONDENT
LESIBA KGOBE
THIRTEENTH RESPONDENT
MINSTER OF WATER AND
SANITATION FOURTEENTH
RESPONDENT
DIRECTOR-GENERAL:
DEPARTMENT OF
WATER AND
SANITATION
FIFTEENTH RESPONDENT
MINSTER OF FORESTRY,
FISHERIES
AND THE
ENVIRONMENT
SIXTEENTH RESPONDENT
FORESTRY, FISHERIES
AND THE
ENVIRONMENT
SEVENTEEN RESPONDENT
MINISTER OF MINRAL
RESOURCES
AND
ENERGY
EIGHTEENTH RESPONDENT
NATIONAL ENERGY
REGULATOR OF
SOUTH
AFRICA
NINETEENTH RESPONDENT
CLIVE RAYMOND LE
ROUX
TWENTIETH RESPONDENT
PAUL MPHO
MAKWANA
TWENTY- FIRST
RESPONDENT
AUSTIN LESLIE
MKHABELA
TWENTY-SECOND RESPONDENT
BUSISIWE
VILAKAZI
TWENTY-THIRD RESPONDENT
LWAZI LEON
GOQWANA
TWENTY-FOURTH RESPONDENT
FATHIMA BEE BEE ABDUL
GANY
TWENTY-FIFTH RESPONDENT
ANYANDA PEARL ZINHLE
MAFULEKA
TWENTY-SIXTH
RESPONDENT
TSKANI LOTTEN
MTHOMBENI TWENTY-SEVENTH
RESPONDENT
BEKI ZACHARIA NTSHALINTSHALI TWENTY-EIGHT
RESPONDENT
NTETO
NYATHI
TWENTY-NINETH RESPONDENT
TRYPHOSA
RAMANO
THIRTIETH
RESPONDENT
CLAUSELLE von
ECK
THIRTY-FIRST RESPONDENT
RULE 42 JUDGMENT
TWALA J
[1] The applicant, discontent with the whole of the judgment and order of this Court handed down on the 19 June 2024 dismissing its application with no order as to costs, launched an application for leave to appeal.
[2] On perusal and consideration of the papers filed for the application for leave to appeal, this Court realised that it made a patent error by not dealing and making a specific finding against the National Energy Regulator of South Africa (“NERSA”), the nineteenth respondent in this case. The court regrets the error and seeks to correct it in this judgment.
[3] It is noteworthy that the Court, on realising the error, invited the parties to make any submissions as it intended to correct the error in terms of Rule 42 of the Uniform Rules of Court. All the parties recorded no objection to the Court effecting an amendment to deal with and make a finding regarding the NERSA, except for the applicant which reserved its rights to effect any amendment to its application and grounds for leave to appeal.
[4] NERSA is an organ of State and has been referred to as such in paragraph [12] of the main judgment and as one of the State respondents. However, NERSA as a Regulator established in terms of section 3 of the National Energy Regulator Act, 4 of 2006 (“The Act”) has a completely different mandate. Its functions are concerned, amongst other things, with the issuing of licenses for the generation and transmission of electricity and compliance with the conditions of those licenses. There is nothing in the Act that suggests that NERSA has the power to force its licensee to desist from polluting and degrading the downstream resources at Kusile Power Station as sought by the applicant.
[5] I am unable to disagree with NERSA that the complaint by the applicant of non-compliance by Eskom with or breaches of its authorisations and or licence conditions is not related to any licence issued by NERSA. Therefore, so says NERSA, it is not authorised and empowered to enforce the compliance complained of in terms of the provisions of the National Energy Regulator Act and or the Electricity Regulator Act 40 of 2006 from which it receives its mandate.
[6] It is my respectful view that the applicant has failed to demonstrate to the Court that NERSA has a duty to protect against the pollution and degradation of the environment downstream at the Kusile Power Station. The inescapable conclusion is therefore that the application against NERSA falls to be dismissed.
[7] In the circumstances, I make the following order:
1. The application against NERSA, the nineteenth respondent is dismissed with no order as to costs.
TWALA
M L
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
For the Applicant: Advocate MM Oosthuizen SC Advocate N Fourie Instructed by: Bishop Fraser Attorney Tel: 010 035 4944 davide@bishopfraser.co.za For the Eskom Respondents: Advocate P Lazarus SC (First to Tenth, Eleventh to Thirteenth and Twentieth to Thirty-First respondents) Advocate B Dhladhla Instructed by: Edward Nathan Sonnenbergs Inc Tel: 011 269 7600 hhugo@ensafrica.com For the State Respondents: Advocate A Liversage SC (Fourteenth to Seventeenth Respondents) Advocate L Maite Instructed by: Office of the State Attorney, Pretoria Tel: 012 309 1500 sakhosa@justice.gov.za For the Nineteenth Respondent: Advocate Mahlangu Instructed by: Mchunu Attorneys Tel: 011 778 4060 titus@mchunu.co.za Date of Hearing:
RULE 42 ON PAPER Date of Judgment: 28 August 2024
Delivered: This judgment and order was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to Parties / their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date of the order is deemed to be the 28 August 2024.
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