United Democratic Movement and Others v Eskom Holdings SOC Ltd and Others [2023] ZAGPPHC 404; 005779/2023 (7 June 2023)

United Democratic Movement and Others v Eskom Holdings SOC Ltd and Others [2023] ZAGPPHC 404; 005779/2023 (7 June 2023)

The court found that the applicants' requests for documents and information were too wide, vague, and not properly identified. The application lacked specificity regarding which portions of the record were incomplete, and the documents sought did not relate directly to the decisions under review. The absence of a Rule 30A notice rendered the application procedurally defective. Furthermore, the court held that executive decisions, such as the President's acceptance of foreign loans, are not subject to Rule 53 review unless a formal decision has been made, which was not the case here. The application amounted to an impermissible request for discovery rather than a proper Rule 53 record....

Citation
[2023] ZAGPPHC 404
Parties
Applicant: United Democratic Movement; Applicant: Inkatha Freedom Party; Applicant: Action SA; Applicant: Build One South Africa; Applicant: Dr Lufuno Rudo Mathivha; Applicant: Dr Tanusha Radmin; Applicant: Lukhona Mnguni; Applicant: South African Federation of Trade Unions; Applicant: National Union of Metal Workers of South Africa; Applicant: Health and Allied Indaba Trade Union; Applicant: Democracy in Action NPC; Applicant: Southern African Institute for Responsive and Accountable Governance; Applicant: White River Neighbourhood Watch; Applicant: The African Council of Hawkers and Informal Businesses; Applicant: South African Unemployed People’s; Applicant: Soweto Action Committee; Applicant: Mastered Seed Foundation; Applicant: Ntsikie Mgagiya Real Estate; Applicant: Fula Property Investments Pty Ltd; Respondent: Eskom Holdings SOC Ltd; Respondent: Minister of Public Enterprises; Respondent: Director General: Department of Public Enterprises; Respondent: President of the Republic of South Africa; Respondent: Minister of Mineral Resources and Energy; Respondent: Director-General: Department of Mineral Resources and Energy; Respondent: National Energy Regulator of South Africa; Respondent: Government of the Republic of South Africa
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 June 2023
Case Number
005779/2023
Procedural Posture
Interlocutory Application / Application to Compel Production of Documents in Pending Review
Outcome
Application dismissed with costs.
Judges
JS Nyathi, N Davis, C Collis
Legal Topics
Rule 53 Review Record, Interlocutory Relief, Executive Decision Reviewability, Discovery Vs Record, Just Energy Transition
Civil Procedure Administrative Law Rule 53 Review Record Interlocutory Relief Executive Decision Reviewability Discovery Vs Record Just Energy Transition

Case Brief

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Parties

United Democratic Movement

Applicant

Inkatha Freedom Party

Applicant

Action SA

Applicant

Build One South Africa

Applicant

Dr Lufuno Rudo Mathivha

Applicant

Dr Tanusha Radmin

Applicant

Lukhona Mnguni

Applicant

South African Federation of Trade Unions

Applicant

National Union of Metal Workers of South Africa

Applicant

Health and Allied Indaba Trade Union

Applicant

Democracy in Action NPC

Applicant

Southern African Institute for Responsive and Accountable Governance

Applicant

White River Neighbourhood Watch

Applicant

The African Council of Hawkers and Informal Businesses

Applicant

South African Unemployed People’s

Applicant

Soweto Action Committee

Applicant

Mastered Seed Foundation

Applicant

Ntsikie Mgagiya Real Estate

Applicant

Fula Property Investments Pty Ltd

Applicant

Eskom Holdings SOC Ltd

Respondent

Minister of Public Enterprises

Respondent

Director General: Department of Public Enterprises

Respondent

President of the Republic of South Africa

Respondent

Minister of Mineral Resources and Energy

Respondent

Director-General: Department of Mineral Resources and Energy

Respondent

National Energy Regulator of South Africa

Respondent

Government of the Republic of South Africa

Respondent

Procedural Posture

Interlocutory Application / Application to Compel Production of Documents in Pending Review

Legal Issues

  1. 1 Whether the applicants are entitled to an order compelling the respondents to furnish additional documents and information as part of the review record.
  2. 2 Whether the requests for documents are sufficiently specific and properly identified to justify relief under Rule 53.
  3. 3 Whether executive decisions, such as the President's acceptance of foreign loans, are reviewable and subject to Rule 53 record production.

Ratio Decidendi

The court found that the applicants' requests for documents and information were too wide, vague, and not properly identified. The application lacked specificity regarding which portions of the record were incomplete, and the documents sought did not relate directly to the decisions under review. The absence of a Rule 30A notice rendered the application procedurally defective. Furthermore, the court held that executive decisions, such as the President's acceptance of foreign loans, are not subject to Rule 53 review unless a formal decision has been made, which was not the case here. The application amounted to an impermissible request for discovery rather than a proper Rule 53 record....

Court Disposition

Application dismissed with costs.

Orders

  • The applicants’ interlocutory application in case no 005779/2023 heard on 5 May 2023 is dismissed.
  • The applicants are ordered to pay the opposing respondents’ costs, including the costs of three counsel, where employed.