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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

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