Topigs Norsvin SA Proprietary Limited v Eskom Holdings SOC Ltd and Others (013715/2022) [2024] ZAGPPHC 848 (28 August 2024)

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.