Nqorile CC and Another v Eskom Holdings SOC Limited (A22/2024) [2025] ZAGPPHC 1066 (7 October 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1066 | Noteup | LawCite sino index ## Nqorile CC and Another v Eskom Holdings SOC Limited (A22/2024) [2025] ZAGPPHC 1066 (7 October 2025) Nqorile CC and Another v Eskom Holdings SOC Limited (A22/2024) [2025] ZAGPPHC 1066 (7 October 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1066.html sino date 7 October 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE Number: A22/2024 (1)      REPORTABLE: YES /NO (2)      OF INTEREST TO OTHER JUDGES: YES /NO (3)      REVISED: YES/ NO 2025 07/10/2025 In the matters between: - NQORILE CC                                                                               FIRST APPELLANT MOKGOSI SPIHIWE MALEPANE MAKHANYE PULE          SECOND APPELLANT AND ESKOM HOLDINGS SOC LIMITED                                                   RESPONDENT JUDGMENT BAQWA, J (with  NEUKIRCHER et HASSIM JJ concurring) Introduction [1] This is an appeal against the judgment and the order handed down by this court on the 28 February2023 ( the Court a quo) in respect of which Leave to Appeal was refused but subsequently granted by Supreme Court of Appeal on 13 September 2023 for the hearing by the Full Court of this Court. Background [2] Summons were  issued by the respondent against the appellants on 17 September 2021 and served on them on 12 July 2021. [3] The appellant entered an appearance to defend on 1 October 2021 and thereafter filed a plea on 11 November 2021. [4] The respondent applied for summary judgment on 1 December 2021, which was opposed by the appellant. [5] In summary, the dispute arose from an agreement concluded between the respondent and the appellants for the supply of electricity to the first appellant's property located at Stand 2[...], S[...] Street, Heathcliff Manor. It is not in dispute the electricity supplied by the respondent was consumed by both appellants. [6] It is also not in dispute that the supply of electricity between the parties was in terms of Eskom’s Standard Conditions of Supply for Small suppliers with conventional metering, which can be summarised as follows: 6.1. Accounts for all charges payable by the first appellant shall be sent to the first appellant as soon as possible after the end of each month, and each account shall be due and payable on the date the account is received by the first appellant, which date, for the purposes of the electricity supply agreement, shall be deemed to be not later than 7 days from the date on which the account was sent. 6.2. Should payment not be received within a period of 23 days from the date the account is deemed to have become due and payable in terms of the above-mentioned clause, the respondent may discontinue the supply to the first appellant and terminate the electricity supply agreement after having given the first appellant fourteen (14) days' written notice. The amount outstanding shall bear interest, compounded monthly from the date the account is deemed to have become due and payable in terms of the sub-clause above to the due date of payment, at a rate per annum equal to the prevailing prime overdraft rate charged by First National Bank of South Africa Limited plus 5%. 6.3. Should a customer dispute an account, it shall not be entitled to reduce or set off its debt or defer payment thereof beyond the period of grace allowed for in the above-mentioned sub-clause, but such account shall as soon as possible be adjusted if necessary; 6.4. Should a customer be incorrectly charged for any amount payable in terms of the electricity supply agreement as a result of human error, the applicant shall inform the respondent of the correct amount/s payable and the reasons thereof; 6.5. In the case of a customer being overcharged and having paid such over charged amount, the respondent shall as soon as practicable either credit the customer's electricity account or reimburse the customer with the total amount over charged. The said amount shall include interest compounded monthly from the date the customer has paid the over charged amount up to the date Eskom has credited the customer's electricity account or repaid the customer, as the case may be, at a rate equal to the prevailing prime overdraft rate charged by First National Bank of South Africa Limited; 6.6. In the event that the customer is being undercharged, the respondent shall debit the customer's electricity account with the total amount undercharged, and such amount shall be payable by the customer on such terms agreed to by the respondent, subject to the proviso that the customer may pay the amount over a period commemorative of the amount undercharged, but such credit shall be limited to a period not exceeding 6 months. The amount outstanding shall bear interest compounded monthly from the date the customer's account is being debited in term of this clause to the date of payment, at a rate per annum equal to the prevailing prime overdraft rate charged by First National Bank of South Africa Limited. 6.7. A certificate under the signature of a duly authorised employee of Eskom, setting out the amount due and payable by the customer at any time in terms of the electricity supply agreement, shall be sufficient and conclusive proof, subject to manifest error, of the customer’s for purposes of insolvency and legal proceedings and obtaining provisional sentence; and 6.8. Should a customer commit any breach of the electricity supply agreement and the respondent resort to litigation, the customer shall be responsible for all costs and expenses incurred by Eskom as a result of such litigation including attorney's costs. [1] Grounds of Appeal [7] The appellants appeal against the judgment of the court a quo on the basis that the court misdirected itself in the following respects: 7.1. The court ought to have found that the payment made by the appellants in the sum of R162,927.00 is not accounted for by the respondent,  and, as a result, the debatement of the statement of account is an issue fit for trial. 7.2. The court ought to have further found that the omission of the period over which the payments were made was not a relevant consideration in view of the fact that it was common cause between the parties that payments were made pursuant to a deferred payment agreement concluded between the parties at the instance of the respondent. 7.3. The court erred in finding that the stance adopted by the applicant flies in the face of standard conditions agreed between the parties in terms of the electricity supply agreement, and as a result: 7.3.1. The court ought to have found that the appellants engaged the mechanism provided for in the electricity supply agreement for the testing of the meter to determine the accuracy of the readings and that in this regard, the respondent did not comply with the provision of the agreement to the extent that there was no testing of the meters  by an independent engineer in order to determine the accuracy of the readings in regard to the total amount claimed as due and owing for the consumption of electricity on the part of the appellants. 7.3.2. The court ought to have found that the appellants had fully disclosed the nature and grounds of their defence, and as a consequence, refused summary judgment. [8] On 15 June 2023, the court a quo handed down a judgment refusing the application for leave to appeal and awarded costs against the appellants on an attorney and client scale. [9] It is common cause that the respondent's tax invoices, and accounts to customers are printed back-to-back with self-contained terms and conditions, and serve as an additional tool to remind customers of the material express conditions, including: 9.1. The fact that electricity services are supplied in terms of Eskom's conditions of contract, as amended from time to time; 9.2. Due date means the date the electricity is deemed to be received by the customer, as provided for in the electricity supply agreement; 9.3. Final payment date means the date by when the customer's payment of the full invoice account must be reflected in Eskom's bank account, failing which interest will be charged from the due date to the date of payment on the outstanding amount; 9.4. Estimated readings will be automatically adjusted after the next actual meter reading. 9.5. Payment may not be deferred; 9.6. Interest is payable on all overdue accounts; 9.7. Eskom is entitled to disconnect supply for any non-payment. 9.8. In the event of disconnection, and in addition to repayment of the outstanding amount due, a disconnection visit fee and deposit will become payable. 9.9. The customer is legally liable for all charges reflected on the account. The law ## [10] The standard conditions of the agreement between the parties, together with the self-contained terms and conditions printed at the back of the invoices, have to be understood and interpreted in terms of the contractual approach to contractual interpretation, which has now become settled in the caseof [10] The standard conditions of the agreement between the parties, together with the self-contained terms and conditions printed at the back of the invoices, have to be understood and interpreted in terms of the contractual approach to contractual interpretation, which has now become settled in the case of ## Natal Joint Municipal Pension Fund v Endumeni Municipality[2] Natal Joint Municipal Pension Fund v Endumeni Municipality [2] ## At paragraph 18, the SCA held: At paragraph 18, the SCA held: "Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or a contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence, whatever the nature of the document. Consideration must be given to the language used in the light of the ordinary rules of grammar and syntax, the context in which the provision appears, the apparent purpose to which it is directed, and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighed in the light of all these factors." [11] As matters stand in the present case full reference has been made to the terms and conditions quoted above in order to understand the institution of the action and the defence raised by the parties before the court a quo and the arguments presented on appeal. Discussion [12] It was the appellant's pleaded case that the respondent had failed to send accounts for charges or invoices each month, as stated in the standard conditions of supply, even though the second appellant had continued to make inquiries regarding the invoices. [13] The appellants further pleaded that the respondent failed to attend at the property where the electricity was supplied in order to check the metering. This was the basis upon which the appellants put in issue the certificate issued by the respondent during 2020 i.e. that it was based on estimates and not actual electricity consumed. [14] Pursuant to demands for payment from the respondent, the appellants had resorted to paying varying amounts of R4,500 and R3,000 on 24 February 2017 and on 3 May 2017, without having received invoices from the respondent. It was, however, part of their pleaded case that they did not dispute their obligation for consumption of electricity and the resultant liability towards the respondent. [15] The respondent, on the other hand, in its particulars of claim, set out that it was the appellants who breached their obligations in terms of the standard conditions. The appellants boldly averred that the respondent breached their standard conditions and simultaneously made the admission that they entered into a deferred payment agreement with the respondent, in terms of which the outstanding amount was the sum of R473,767.99. [16] The appellants stated that at the time of delivering their plea, they had paid a total of R162,927 over an unspecified period. [17] In the affidavit opposing summary judgment, the appellants again admitted the standard conditions as well as the respondent's tax invoice’s self-contained terms and conditions. Despite these admissions, the appellants still sought to leave before the court a quo to defend the main action. [18] In deciding the matter, the court a quo relied on two well-known authorities on summary judgment. The first one was Maharaj v Barclays National Bank Ltd, [3] where the Supreme Court of Appeal held that: “ One of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the court by affidavit that he has a bona fide defense to the claim. Where the defense is based on facts, in the sense that material facts alleged by plaintiff in his combined summons, are disputed or new facts are alleged constituting a defense, the Court does not attempt to decide these issues or determine whether or not there is a balance of probabilities in favor of one party or the other. All that the court inquiries into is; (a) whether the defendant has fully disclosed the nature and grounds of his defense and the material facts upon which it is founded, and (b) whether on the facts so disclosed the defendant appears to have, as to either the whole or part of the claim, a defence which is both bona fide and good in law.  If satisfied on these matters the court must refuse summary judgment, either wholly or in part, as the case may be.” [19] The second authority referenced by the Court a quo was Joob Joob Investment (Pty) Ltd vs Stocks Mavundla Zek Joint Venture [4] Where the Supreme Court of Appeal held that: “ In the Marahaj case at 425G-426 E, Corbett JA, was keen to ensure first, an examination of whether there has been sufficient disclosure by a defendant of the nature and grounds of his defence and the facts upon which it is founded. The second consideration is that the defence so disclosed must be both bona fide and good-in-law. A court which is satisfied that this threshold has been crossed is then bound to refuse summary judgment. Corbett JA also warned against requiring of a defendant the precision apposite to pleadings. However, the learned judge was equally astute to ensure that recalcitrant debtors pay what is due to a creditor.” [20] Even a cursory examination of the defences that the appellant raised before the court a quo demonstrates in no uncertain terms that the appellant failed to “fully” disclose the nature and grounds of their defence and the material facts on which they relied. [21] It is quite clearly stated in the back of the invoices that no payments may be deferred by a customer. The appellants had clearly breached this condition and this reality is discernible from the appellants’ own version. [22] The standard conditions permit the respondent to submit invoices on an estimated basis and to rectify the same ex post facto . Estimated invoices could therefore not validly serve as a defence for the appellants. [23] The submissions made by the appellants in their grounds of appeal are meritless to the point where counsel on appeal even attempted to raise issues which did not form part of the grounds of appeal and which had never been raised before the court a quo. [24] The final justification for the refusal of summary judgment arose from the appellants' version in that they had denied that the Standard Conditions of Supply were applicable in their plea on the basis of failure to receive monthly statements. But in the affidavit opposing summary judgment, they admitted the Standard Conditions of Supply, which was an inconsistent and glaring contradiction to the defence set out in their plea. [25] By way of example, they submitted that the agreement for deferred payment was entered into as a result of duress. The deferred payment agreement was admitted as part of their version before the court a quo. It was never challenged. [26] The appellants counsel further attempted to raise a defence regarding the locus standi of the first appellant. This attempt was disallowed by this court on the following basis: The circumstances under which a new defence may be raised on appeal are comprehensively described in Paddock Motors (Pty) Ltd v Igesund [5] drawing on an earlier judgment in Cole v Government of the Union of SA [6] where Innes JA set out the position as follows: “ If the point is covered by the pleadings, and if its consideration on appeal involves no unfairness to the party against whom it is directed, the court is bound to deal with it. And no such unfairness can exist if the facts upon which the legal point depends are common cause, or if they are clear beyond doubt upon the record, and there is no ground for thinking that further or other evidence would have  been produced had the point been raised at the outset.” [27] In this appeal the point was simply not covered by the pleadings and it is not part of the record. Conclusion [28] The defences raised by the appellants were neither bona fide nor good in law, both before the court a quo and on appeal, with only one exception, which I deal with below. [29] It would appear that the court a quo made an error in calculating the amount payable by the appellants to the respondent. The amount claimed by the respondent was the sum of R484,978.51, and that was the amount ordered by the court a quo. [30] The said amount does not take into account the sum of R162,927.00 which the appellants had already paid. In the result, this appeal succeeds to the extent that the amount payable is amended by deducting the amount paid from the amount payable. [31] In the circumstances, I propose that the following order is made. Order 31.1 The appeal is dismissed save to the extent that the amount ordered to be paid is set aside and the order of the court a quo is substituted as follows. 31.1.1 Summary judgment is ordered in favour of respondent against the appellants. 31.1.2 The appellants are ordered to pay the sum of R322 051.51 (Three Hundred and Twenty-Two Thousand and Fifty-One Cents) at a prime overdraft rate plus 5% per annum as charged by the First National Bank. 31.1.3 Costs of suit as between attorney and client scale. SELBY BAQWA JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA I agree, BRENDA NEUKIRCHER JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA I agree. SORAYA HASSIM JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA Date of hearing:  04 August 2025 Date of judgment:  September 2025 Appearance On behalf of the Applicants Adv T Mabuda Mabuda@law.co.za/ Instructed by Pule Incorporated behalf of the Respondents Adv M Makgato mphogato@law.co.za Instructed by Dyason Incorporated [1] Particulars of Claims 002-7 para 9. [2] (920/2010) [2012] ZASCA 13 (116 March 2012); (4) SA 593 (SCA) at para 18. [3] 1976 (2) SA 226 (T). [4] 2009 (5) SA 1 SCA. [5] 1976 (3) SA16 (A). [6] 1910 AD 263 at 272 . sino noindex make_database footer start