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

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 >> 2024 >> [2024] ZAGPPHC 848 | Noteup | LawCite sino index ## Topigs Norsvin SA Proprietary Limited v Eskom Holdings SOC Ltd and Others (013715/2022) [2024] ZAGPPHC 848 (28 August 2024) Topigs Norsvin SA Proprietary Limited v Eskom Holdings SOC Ltd and Others (013715/2022) [2024] ZAGPPHC 848 (28 August 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_848.html sino date 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 DIRECTOR-GENERAL: DEPARTMENT OF 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. sino noindex make_database footer start