Afriforum NPC v National Energy Regulator of South Africa and Another (2024/061972) [2024] ZAGPPHC 1381 (5 December 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 1381 | Noteup | LawCite sino index ## Afriforum NPC v National Energy Regulator of South Africa and Another (2024/061972) [2024] ZAGPPHC 1381 (5 December 2024) Afriforum NPC v National Energy Regulator of South Africa and Another (2024/061972) [2024] ZAGPPHC 1381 (5 December 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1381.html sino date 5 December 2024 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 2024-061972 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: NO Date: 5 December 2024 SIGNATURE: In the matter between: AFRIFORUM NPC Applicant and NATIONAL ENERGY REGULATOR OF SOUTH AFRICA First Respondent SOUTH AFRICAN LOCAL GOVERNMENT ASSOCIATION Second Respondent JUDGMENT DE VOS AJ [1]        AfriForum seeks interim execution of an order pending an appeal. [1] The appeal will be heard by a Full Bench of this Court, most likely in the second term of 2025. AfriForum seeks the interim execution of the order in the public interest and aims to prevent municipalities from charging end-users unlawful electricity tariffs pending an appeal process. [2]        The application is opposed by NERSA, the energy regulator responsible for approving electricity tariff increases. NERSA persists in its stance that the tariffs are lawful and contends that the requirements of interim execution have not been met. SALGA, which represents the interests of more than one hundred and fifty municipalities, agrees with AfriForum that the tariffs are unlawful but submits that AfriForum has not met the test for interim execution. [3]        The context of the dispute is the methodology NERSA is required to apply to determine electricity tariff increases. The Electricity Pricing Policy mandates municipalities to conduct cost-of-supply studies, and section 27(h) of the Electricity Regulation Act 4 of 2006 states that NERSA's methodology must comply with the Policy. Read together, the legislation and the policy mandate that NERSA’s methodology must be premised on cost-of-supply studies. [4]        AfriForum and SALGA are in agreement that NERSA's methodology must be based on cost-of-supply studies. NERSA initially accepted that its methodology must be based on cost-of-supply studies, but in the face of non-complying municipalities, did away with requiring cost-of-supply studies and settled for a cost-breakdown methodology for the 2024/2025 financial year. It is common cause that NERSA's current methodology does not require a cost-of-supply study. [5]        AfriForum challenged NERSA’s methodology for determining tariff increases for the 2024/2025 financial year, as the methodology did not require cost-of-supply studies. This Court concluded that NERSA’s 2024/2025 methodology did not require a cost- of-supply study, and consequently, the methodology was unlawful. The judgment is Afriforum NPC v National Energy Regulator of South Africa (“AfriForum v NERSA”) . [2] It is in this order that AfriForum requests the Court to execute pending an appeal. [6]        This Court’s order in AfriForum v NERSA was not the first time NERSA’s methodology has been declared unlawful. In Nelson Mandela Bay Business Chambers NPC and Another v National Energy Regulator and Others , [3] NERSA’s methodology for the financial years of 2021/2022 and 2022/2023 was declared unlawful. The order of invalidity was suspended for a year to provide NERSA a grace period to get its house in order. This means this Court has in Nelson Mandela Bay in 2022 and again in AfriForum v NERSA in 2024 declared NERSA’s methodology unlawful. [7]        It is in this context, after two successful challenges to NERSA’s methodology, in Nelson Mandela Bay and AfriForum v NERSA , that Afriforum now approaches the Court seeking interim execution of the order pending the appeal. Afriforum wants to stop NERSA and the municipalities from imposing unlawful tariffs on end-users for yet another financial year. AfriForum submits that if this Court does not grant the interim execution, then there will be no end to NERSA employing an unlawful methodology. The harm to the public is that they will continue to pay inflated and unlawful tariffs not based on the actual cost of supply of electricity. [8]        Afriforum points to a perpetuation of unlawfulness by NERSA, year after year. The difficulty is that a successful challenge to the methodology is, according to NERSA, overtaken by its subsequent tariff decisions. Take the matter before this Court as an example; the matter was argued in the last week of June 2024 in relation to NERSA's methodology for determining tariffs for the 2024/2025 financial year. The order declaring the methodology unlawful was handed down on 28 June 2024, two days after the hearing of the matter. However, during the week the matter was heard, NERSA was considering and approving new tariff increase applications for the 2024/2025 financial year. NERSA contends that its tariff decisions for 2024/2025 overtake the challenge to its methodology – rendering the court order moot. NERSA pleads that the order of this Court "will not regulate the next tariff approval cycle". [4] NERSA contends that if a party wishes to challenge the tariffs, they must bring a formal review of the tariff decisions. [9]        AfriForum points out that NERSA makes this argument, knowing that such a review of the tariff decisions cannot be finalised before the next financial year, at which stage NERSA will announce the new tariffs again. AfriForum submits that if there is no interim execution, it means that despite a successful challenge to the methodology, consumers will continue to pay inflated and unlawful tariffs, year after year, with NERSA yearly blocking any challenge to its unlawful methodology by relying on mootness. [10]      AfriForum is concerned that NERSA and the municipalities will continue to charge inflated and unlawful tariffs and that they will continue to escape accountability for this unlawful conduct. Afriforum's concern has a historical basis, as this is what NERSA has now done twice against judgments that its methodology is unlawful. In Nelson Mandela Bay , NERSA argued that before Kubushi J in relation to the 2021/2022 and 2022/2023 financial years, the issue had become moot. Her Ladyship Justice Kubushi recorded NERSA's submission in the judgment as follows: "The submission made by NERSA is that serious material events have overtaken the relief which the applicants are seeking in these proceedings." [5] The material events before Justice Kubushi were that NERSA had made a new tariff decision for the next financial year. Now, for the second time, for this financial year 2024/2025, NERSA again submits that this Court’s order in AfriForum v NERSA - declaring NERSA’s methodology unlawful in June 2024 - was overtaken by NERSA 2024/2025 tariff decisions. [11]      AfriForum’s case is the use of an unlawful methodology will persist – and whilst NERSA keeps applying an unlawful method and then raising the subsequent tariff determination as a mootness argument – end-users will pay unlawful tariffs for forever long. To break this never-ending cycle of unlawfulness, AfriForum requests the Court to grant interim execution. AfriForum contends that bar such interim execution, there will be no other way to stop NERSA from applying a method that is unlawful. [12]      Having set out the motivation for the application, I consider the legal requirements for the relief AfriForum seeks. Statutory framework [13]      An appeal of a final order suspends the operation of the order. As the appeal may change the outcome, the immediate execution of the order has the potential to cause enormous harm to a party that may ultimately be successful. [6] A clear example is when a court ordered the execution of an eviction order pending its appeal. [7] The practical effect is that the occupiers were subject to eviction and the irreparable harm that would cause – despite the fact that they might overturn their eviction on appeal. To prevent harm to a party that might be successful on appeal, the general rule is that an appeal suspends the operation of the order. [14]      At common law, unless the Court, in the exercise of a discretion, ordered otherwise, an application for leave to appeal and an appeal pursuant to leave being granted suspended the operation of the order. [8] It was not open to the successful party to execute on, or otherwise act pursuant to, that order. [9] This common law rule and the power to grant an execution order is now expressly embodied in s 18(1), read with s 18(3) , of the Superior Courts Act 10 of 2013 . [15]      The grant of leave to execute is constrained by the requirements that it may only be granted if there are exceptional circumstances if the applicant will suffer irreparable harm if it is not granted, and if the grant will not cause the respondent to suffer irreparable harm. A further safeguard against the risk of harm being caused by an execution order is the automatic right to an urgent appeal given by s 18(4). Pending such an appeal, the statute expressly provides in s 18(4)(iv) that the operation of the suspension order is itself suspended. [10] [16]      The first jurisdictional fact to be proven by an applicant seeking interim execution is the existence of exceptional circumstances. Courts have always eschewed any attempt to lay down a general rule as to what constitutes exceptional circumstances. [11] The reason is that the enquiry is factual. There is a helpful summary in the MV Ais Mamas [12] that has been endorsed by the Supreme Court of Appeal [13] and the Constitutional Court. [14] In the context of s 18(3) , the exceptional circumstances must be something that is sufficiently out of the ordinary and of an unusual nature to warrant a departure from the ordinary rule that the effect of an application for leave to appeal or an appeal is to suspend the operation of the judgment appealed from. It is a deviation from the norm. [15] The exceptional circumstances must arise from the facts and circumstances of the particular case. [17]      Furthermore, section 18(3) requires the applicant for an execution order to establish that the respondent will not suffer irreparable harm if the order is granted and the absence of harm to the respondent. The law does not require a balancing exercise. [16] Instead, the requirements of irreparable harm to the applicant and no irreparable harm to the respondent, unlike the common law position, do not involve a balancing exercise between the two but must both be established on a balance of probabilities. If the applicant cannot show that the respondent will not suffer irreparable harm by the grant of the execution order, that is fatal. It is unnecessary to decide whether, in those circumstances, the Court would be empowered to grant other relief pending the hearing of the appeal in order to protect the applicant's position. [18]      Our courts have also indicated that discretion is retained after considering the specific statutory requirements. In Justice Alliance [17] it was held that the Court has a broad discretion to grant or refuse an execution order once the statutory requirements are satisfied and that prospects of success in the appeal have a role to play in considering the exercise of that discretion. Similar dicta appear in UFS v Afriforum [18] and Ntlemeza [19] - though in these cases, the record in the main appeal was not before this Court, and the appeals had perforce to be decided without the full record or any consideration of the merits of the main appeals. [19]      The most recent authority by an appellate Court is that of the Supreme Court of Appeal in Tyte Security Services CC v Western Cape Provincial Government and Others (“Tyte”) . [20] In Tyte , the Supreme Court of Appeal recognised two elements that had not previously been emphasised concerning Rule 18(3) applications. [20]      The first is that exceptional circumstances become an overarching requirement and that the factors to be considered, the absence of irreparable harm to the respondents and the presence of irreparable harm to the applicants, are not sealed off from each other and not be considered as hermeneutically sealed. The issue which the Supreme Court of Appeal was called on to consider was whether the applicant for an execution order has to establish three separate, distinct and self-standing requirements, namely: first , exceptional circumstances; second , that it will suffer irreparable harm if the order is not made; and, third , the party against whom the order is made will not suffer irreparable harm if the order is made. [21] [21]      The Supreme Court of Appeal held – “ Even accepting that the legislature has employed the words 'in addition [to exceptional circumstances] proves on a balance of probabilities' in s 18(3) , it would be passing strange that if an applicant comes short in respect of either the second or third requirements it would nonetheless still be able to successfully meet the exceptional circumstances threshold. The use of the words 'in addition proves' in s 18(3) ought not to be construed as necessarily enjoining a court to undertake a further or additional enquiry. The overarching enquiry is whether or not exceptional circumstances subsist. To that end, the presence or absence of irreparable harm, as the case may be, may well be subsumed under the overarching exceptional circumstances enquiry. As long as a court is alive to the duty cast upon it by the legislature to enquire into, and satisfy itself in respect of exceptional circumstances, as also, irreparable harm, it does not have to do so in a formulaic or hierarchical fashion.” [22] [22]      The second is that the applicant bears the onus to prove the jurisdictional facts of section 18(3) on a balance of probabilities; there may be instances where the respondents attract something akin to an evidentiary burden. The Court must, when considering the jurisdictional facts, consider that – “ The enquiry into each can thus hardly be mutually exclusive, particularly because as far as the third is concerned, unlike the second , the onus cast upon an applicant would be to prove a negative, in accordance with the usual civil standard. This suggests that, as with the exceptional circumstances enquiry, a court considering both the second and third must have regard to all of the facts and circumstances in any particular case. Insofar as the third goes, although s 18(3) casts the onus (which does not shift) upon an applicant, a respondent may well attract something in the nature of an evidentiary burden. This would be especially so where the facts relevant to the third are peculiarly within the knowledge of the respondent. In that event, it will perhaps fall to the respondent to raise those facts in an answering affidavit to the s 18 application, which may invite a response from the applicant by way of a replying affidavit.” [23] [23]      It is within this statutory framework that the application must be considered. The starting point is whether the applicant has proven exceptional circumstances on a balance of probabilities. Exceptional circumstances AfriForum’s case [24]      AfriForum submits that neither SALGA nor NERSA has taken issue with the declaration of unlawfulness in their applications for leave to appeal. AFriForum submits that exceptional circumstances allow for execution if the appeal does not go to the heart of the order appealed against. The limited scope of the leave to appeal itself constitutes an exceptional circumstance. This further indicates that the unlawfulness of NERSA's methodology is not truly in dispute. [25]      AfriForum further submits that a conservative estimate is that an appeal will be heard in the second half of 2025, after the start of the 2025/2026 financial year. If the order is suspended, the public will remain remediless, and NERSA and those municipalities that did not conduct and support their applications for the 2024/2025 financial year with the cost of supply studies will have escaped the consequences of unlawful conduct to the detriment of the public. [26]      AfriForum submits that it will be exceptional if a party acting in the public interest, who takes action to prevent illegality from continuing, is left remediless in the present circumstances. [27]      Afriforum submits that the impact of a refusal of execution means that by the time the appeal is heard, the horse would have bolted – and NERSA and the guilty municipalities will escape accountability in a way that is detrimental to the public. Afriforum contends that it is extremely exceptional if a party acting in the public interest takes timeous and urgent actions to stop illegality – but, due to an appeal process, is deprived of an effective remedy, year after year, particularly where there is no real dispute regarding the unlawfulness. NASA's case [28]      NERSA denies that AfriForum has proven exceptional circumstances. [29]      NERSA contends that AfriForum has ignored that exceptional circumstances are a fact-based inquiry, and the second is that prospects of success are a relevant consideration in the Court's determination of the existence of exceptionality. These two factors, namely NERSA, have been neglected by AfriForum, as they present an insurmountable difficulty in AfriForum’s case. [30]      NERSA submits that Tyte did not establish a new legal principle – and that AfriForum must still prove on a balance of probabilities: first , exceptional circumstances; second , that it will suffer irreparable harm if the order is not made; and, third , the party against whom the order is made will not suffer irreparable harm if the order is made. This emphasises that NERSA is a fact-based inquiry. NERSA submits that AfriForum has failed to make out such a fact-based case. [31]     NERSA referred the Court to Ntlemeza v Helen Suzman Foundation and Another [24] specifically, paragraph 35, which held that section 18 (1) entitles a court to order otherwise 'under exceptional circumstances'. Section 18(3) provides a further controlling measure, namely, a party seeking an order in terms of s 18(1) is required 'in addition' to prove on a balance of probabilities that he or she will suffer irreparable harm if the Court does not so order and that the other party will not suffer irreparable harm if the Court so orders. [32]      NERSA submits this must be considered with Tyte , which held – “ It is important to recognise that the existence of ‘exceptional circumstances’ is a necessary prerequisite for the exercise of the Court's discretion under s 18. If the circumstances are not truly exceptional, that is the end of the matter. The application must fail and falls to be dismissed. If, however, exceptional circumstances are found to be present, it would not follow, without more, that the application must succeed.” [25] [33]      Read together; this means that if a party has not proven exceptional circumstances, they do not even get in the door of section 18(3). NERSA points to Afriforum's founding affidavit, which has specific headings addressing prospects of success, irreparable harm and the absence of irreparable harm to the respondents – but no heading dealing with exceptional circumstances. This submits NERSA, is fatal to AfriForum’s case. Without establishing exceptional circumstances – AfriForum cannot request the Court to grant execution as the first jurisdictional fact is absent. NERSA submits that Tyte did not disturb this legal principle. SALGA’s case [34]      SALGA contends that AfriForum has not proved that exceptional circumstances exist to justify a departure from the general rule. An analysis of AfriForum’s founding affidavit shows that AfriForum relies on ordinary factors in its attempt to make out a case in which exceptional circumstances exist to justify the relief it seeks. [35]      SALGA accepts that in its application for leave to appeal, SALGA does not contest the declaration of invalidity granted by this Court. The fact that SALGA does not contest the declaration of invalidity has been SALGA's position even during the hearing of the main application. This factor is not unusual considering the position adopted by SALGA in this litigation. Accordingly, it does not constitute an exceptional circumstance for the purposes of section 18(1) of the Superior Courts Act. The finding of exceptional circumstances [36]      Exceptional circumstances are a necessary prerequisite for the exercise of the Court's discretion. If the circumstances are not truly exceptional, it is the end of the matter. If the circumstances are exceptional, it does not follow without more that the application must succeed.9 [37]      The bar is high, as AfriForum has to prove there is “something markedly unusual or specially different about this case”. The Supreme Court of Appeal in Ntlemeza stated that ‘the legislature has set the bar fairly high’. Therefore, a heavy onus is placed on the applicant. [38]      The Court considers the facts of this case in light of the onus. It weighs with the Court that consumers have been overpaying for a long time and that tariffs are increasingly unaffordable. This fact was not disputed before Kubushi J in Nelson Mandela Bay and similarly was not disputed before this Court in Afriforum v NERSA . [39]      The Court also considers that the tariffs paid for electricity affect every household and every business in this country. If it is unaffordable, as is the common cause before this Court, it affects the ability of people to access the host of amenities electricity affords them, from having light to study with to being able to cook food and stay warm. Electricity provides ways in which people can exercise other rights. If it is unaffordable, it affects the ability to exercise a variety of fundamental rights. In addition, the financial viability of businesses is affected by the price of electricity, particularly small businesses. There is little to gainsay that the tariffs paid for electricity – which is at the heart of this application – have a massive effect on homes and businesses throughout the country. The number of people affected by this application itself indicates that exceptional circumstances exist. [40]      It weighs with the Court that this is not the first time NERSA’s methodology has been declared unlawful. In addition, NERSA has been given an opportunity to address the unlawfulness of its methodology in a previous judgment. Yet, it has not done so despite being provided more than a year to do so. This also evidences exceptional circumstances. [41]      It also weighs with the Court that NERSA has now twice used the same excuse to avoid the impact of such a finding. Before Her Ladyship Kubushi J and in this matter, NERSA claimed mootness. It also appears to the Court that what renders the case exceptional is the unending cycle of consumers paying unlawful tariffs, year-after-year – with its custodian claiming mootness repeatedly. [42]      SALGA submits that the unlawfulness of conduct is not in and of itself sufficient to ground exceptional circumstances. In fact, submits SALGA, it is par for the course that an unlawful act is permitted to continue pending an appeal as the default position is that an appeal suspends the operation of the order – as the unlawfulness yields to other considerations of legal certainty and the prevention of harm. [43]      The argument is sound but does not hold where the unlawfulness renews yearly and has been ongoing for close to two decades, particularly in circumstances where the national custodian – NERSA - has failed in its task to act as a regulator and has instead bent to permit unlawfulness to continue. The unlawfulness, in this case, is not once-off, nor did it abate when the Court declared it so: rather, NERSA’s conduct is not only unlawful but it is repeated, persistent and continuous. [44]      In addition, the appeal is not aimed at the finding of unlawfulness – and so the parties do not seek to disturb the finding of unlawfulness. The limited scope of the appeal weighs with the Court as an exceptional circumstance. Here, NERSA’s reliance on mootness requires consideration. The defence, even if accepted, is not the end of the matter. Both Her Ladyship Kubushi J [26] and this Court [27] held that even if the matter is moot – that is not the end, as moot matters are often considered if they raise important public interest considerations – which are at play in this case. [45]      The Court finds that exceptional circumstances do arise in this case and considers whether AfriForum has proven irreparable harm to the public. Irreparable harm to the public AfriForum’s case [46]      Afriforum submits that if interim relief is not granted, the public will suffer irreparable harm. Currently, tariff increases are being granted on the basis of an unlawful methodology. All accept that the tariffs being charged this year are higher than the tariffs being charged last year. AfriForum submits that the unlawful tariffs which the public has been paying for the five months since the judgment was handed down and the unlawful tariffs they will be paying for the next seven months constitute harm. There can be no doubt about this. The question AfriForum asks is if this harm is irreparable. [47]      AfriForum contends that in the face of neither SALGA nor the municipalities being able to give an assurance that they will be able to refund the public if the appeal fails, the public will suffer irreparable harm if the order continues to be suspended. [48]      AfriForum explains that its impetus for approaching the Court is what SALGA told the Supreme Court of Appeal in its application for special leave. SALGA pleaded in its bid for leave to appeal that if the High Court orders are not set aside, then – “ a question is going to arise as to whether the municipalities must reverse those charges and if so, how that reversal must happen considering the large number of municipal electricity consumers and the practicalities of doing that”. [49]      AfriForum submits that SALGA offers no solution to this problem, nor does it say what the possible solutions may be. AfriForum contends that the only reasonable inference is that neither SALGA nor the municipalities are able to give the Court or the end- users of electricity the assurance that, should they continue to charge and collect higher rates if the High Court order eventually stands, they will be able to reimburse the end-users. This clearly demonstrates an essential reason why the High Court order should be executed. Had there been a solution – then the municipalities would have told SALGA of the solution, and it would have told this Court. [50]      The inability to ensure that end-users will be refunded is clear evidence of irreparable harm to be suffered by the end-users, being “the very public for whom AfriForum has fought throughout these proceedings”. [28] [51]      To this should be added the irreparable harm in the form of failed businesses and industries, including small industries that will not survive due to these inflated tariffs, on top of which NERSA has now allowed a further 12% increase. Moreover, AfriForum pleads that many electricity users buy prepaid electricity, most of them are poor. There is simply no way that municipalities can reimburse them. [29] [52]      Afriforum submits there are five specific reasons why the harm to the public is irreparable. First , none of the actual municipalities have entered the fray and said that they can refund members of the public and, if they can – how they intend to do so. Second , NERSA has not provided any counter to the allegation that the harm to the public is irreparable, and it has not even attempted to do so. Third , SALGA comes to the defence of the Municipalities, but what it said in the application for special leave in the Supreme Court of Appeal is that a question is going to arise: How can it reverse any payments in light of the large number of municipalities and the practicalities? SALGA has not provided an answer to this question. Now, in this Court, in opposition to section 18(3) , SALGA contends that they can pay the monies back. However, SALGA does not go on to explain how to "consider the large number of municipalities involved and the practicalities thereof”. [53] Fourth , Afriforum posts a scenario. If one were to assume that Municipalities have the intention to pay back, how would they do so? There will have been some form of a refund or a credit to those who were charged and paid unlawful tariffs. The issue is where the funds to pay back this money will come from: not from the officials' pockets, not from NERSA, and not from SALGA. The money comes from the same people from whom it was taken in the first place - the end-users. A municipality will be able to rectify it in the next financial year through the provision of a cost of supply study where a municipality can play open cards that it had unlawfully collected tariffs and now must pay back those tariffs that had nothing to do with the cost of electricity. A municipality can also budget for such a refund or credit. Regardless, either way, the money is being collected from the same people who overpaid for electricity in the first place. To abuse an idiom: it is robbing Peter to pay Peter. [54] Fifth , in the face of SALGA’s case that the Municipalities are about to fail and therefore a just and equitable remedy would be to suspend the operation of invalidity for another financial year, the question then arises – how will these failing municipalities pay back unlawful tariffs? [55]      These five points, submit AfriForum, indicate exceptional circumstances and evidence of irreparable harm to the public. [56]      AfriForum compares its position to that of the applicant in Tyte , in respect of which the Supreme Court of Appeal said: “Inasmuch as the second contract is due to terminate in June 2025, there is every prospect that, by the time the appeal comes to be heard, and irrespective of the outcome, Royal will be left remediless.” [30] As the applicant in Tyte could not get a remedy, a delay in its remedy meant it was no longer effective; similarly, the public would be left remediless due to an effluxion of time. NASA's case [57]      NERSA submits that AfriForum has not produced any evidence of irreparable harm to the people which it represents. AfriForum simply complains, in general terms, about inflated tariffs without producing evidence of how such tariffs will cause irreparable harm. The correct position is that if the applications for leave to appeal are dismissed, the relevant electricity customers will have a remedy against the relevant municipalities to recover the alleged inflated amounts. No case has been made by AfriForum as to why the people it represents cannot be refunded the alleged inflated amounts. In addition, no case has been made by AfriForum to prove that the relevant municipalities will never have the requisite financial wherewithal to refund the affected customers the alleged inflated amounts. [58]      NERSA’s position is that the approved tariffs, in terms of the 2024/2025 tariff decisions, have not been impugned in review proceedings. In such review proceedings, the Court can grant a just and equitable remedy if the tariffs are found to be unlawful. The harm, if any exists, is not irreparable. [31] SALGA’s case [59]      SALGA has pleaded that – “ if SALGA and NERSA are not successful on appeal in due course, and municipalities have charged their electricity customers unlawful tariffs, and municipalities are ordered to refund them the difference, municipalities will have to refund them”. [60]      The pleaded position from SALGA is that if there has been an overcharge – then the municipalities must credit or refund the consumers. [61]      There is no suggestion in AfriForum’s founding affidavit that the affected municipalities will not have the financial wherewithal to refund such difference. [32] Irreparable harm is harm for which there is no remedy. In this case, the remedy is a refund, and no case has been made to suggest that the affected municipalities will not be able to make the necessary refunds. [33] [62]      SALGA refers to an announcement from AfriForum on 22 August 2024 in which it calls on the public to claim back monies from the municipalities for the unlawful tariffs. Before SALGA relied on this document, the Court ascertained that there was no objection to any party to SALGA being granted leave to hand up a document. SALGA's submission is that there is a remedy – to claim back monies from the Municipalities – and that AfriForum is aware of this remedy and that it is available to the public. SALGA submits this document to prove that AfriForum is aware that there is the possibility to claim back any overpayment. Finding that the applicant has not proven irreparable harm to the public [63]      In Afriforum [34] The Constitutional Court stated that the harm that must be established is some "discernable or intelligible disadvantage or peril that is capable of legal protection” and that it is “the tangible or intangible effect of deprivation or adverse action taken against someone.” The Court continued: "Irreparable implies that the effects or consequences cannot be reversed or undone. Irreparable therefore highlights the irreversibility or permanency of the injury or harm. That would mean that a favourable outcome by the Court reviewing allegedly objectionable conduct cannot make an order that would effectively undo the harm that would ensue should the interim order not be granted." [35] [64]      Harm becomes irreparable if, through suffering the delay of the law, the successful litigant loses the fruit of their litigation. This is called "irreparable" damage, meaning that money obtained at trial may not compensate for the harm.” [36] If damages – or some other relief – provide adequate compensation and the respondent is in a position to pay them, then ordinarily, the harm will not be irreparable. [65]      AfriForum bears the onus to prove the absence of a remedy. It relies mainly on SALGA's open-ended question to the Supreme Court of Appeal in the application for leave to appeal, where SALGA indicates that a question of a remedy will arise. The statement by SALGA to the Supreme Court of Appeal is not a concession that there will be no remedies. It merely states that the question will arise – which it most certainly will. A party indicating that litigation will raise a question of remedy does not mean that they have conceded that the remedy does not exist. [66]      In any event, SALGA has answered the question in this Court: Consumers will be credited or refunded. The answer appears in more than one place in the answering affidavit and submissions and was made again in open Court. [67]      The Court considers that SALGA has pleaded that it will remedy the unlawfulness - if the appeal is upheld. Specifically, in paragraphs 2.25 of its answering affidavit, SALGA said: "2.25 If SALGA and NERSA are not successful on appeal in due course, and municipalities have charged their electricity customers unlawful tariffs, and municipalities are ordered to refund them the difference, municipalities will have to refund them. There is no suggestion in AfriForum’s founding affidavit that the affected municipalities will not have the necessary financial wherewithal to refund such difference.” [68]      In addition, SALGA has pleaded that it is not correct that “the public will remain remediless.” The correct position is simply that if the application for leave to appeal or an appeal is not successful, the relevant municipalities will have to credit their customers or refund their customers who are now being charged increased electricity tariffs as provided for in their 2024/2025 financial year budgets. [69]      SALGA has stated unequivocally that relevant customers could be refunded, or their customers' accounts could be credited with the difference between what they are paying now and what the appeal Court will say they should have been paying. Based on this fact, the contention that the harm will not be remedied cannot be sustained. [70]      For as long as it is not suggested that the affected municipalities will not be able to make such refunds as they may be ordered to make, there is no factual basis for this Court to conclude that any person is going to suffer irreparable harm if leave to execute is not granted. SALGA has identified the specific remedy, which is a refund, and no case has been made to suggest that the affected municipalities will not be able to make the necessary refunds. [71]      SALGA has furthermore identified the means of achieving this remedy being through the crediting their electricity accounts. Accordingly, SALGA has contradicted AfriForum’s case that the harm to the public is irreparable. [72]      The Court also accepts NERSA’s argument that a review of the tariff-decisions, if such a case is launched, allows for just and equitable relief. Notionally, relief exists for the harm which the public is suffering. [73]      On this basis, the Court finds that AfriForum has not been able to prove that the harm is irreparable in these circumstances. [74]      The absence of irreparable harm, means that AfriForum has not met its onus and that the matter is to be dismissed on this basis alone. The Court however notes the importance of a full set of reasons and following a belt-and-braces approach addresses the remaining considerations. Absence of irreparable harm to respondents AfriForum’s case [75]      AfriForum then addresses the absence of irreparable harm to the respondents. AfriForum submits that they will not suffer any harm at all – let alone irreparable. AfriForum submits that there is a clear and logical link between the irreparable harm suffered by the public and the fact that the municipalities will suffer no harm. If there is a shortfall, then municipalities can make good for it in the next budget. However, they will have to do this lawfully based on cost-of-supply studies. [76]      AfriForum pleads that NERSA and SALGA have not specified what harm they will suffer – save for NERSA having to pay SALGA’s costs. AfriForum pleads that there can be no such harm. If the order is given effect, if municipalities charge the lower rates as it should and if the municipalities have a shortfall at the end of the financial year (which is not an inevitability), first, it will be of their own doing, second, they will have to account to all as to the reasons why they find themselves in that situation (which favours constitutional accountability) and, third, municipalities will be able to rectify the situation in the following year’s budget. As such, they will not suffer irreparable harm – even if there is a shortfall. [77]      This submission must be seen in the context of two courts having found that municipalities have been charging inflated electricity tariffs for years. And neither SALGA nor NERSA have taken issue with this allegation. [78]      AfriForum then relies on the findings of Tyte to submit that this is the type of case where evidence which falls under personal/exclusive knowledge of the Municipalities or the respondents creates an evidentiary burden to show they will suffer irreparable harm if the order is not suspended. [79]      AfriForum accepts it bears the overall onus of proof but submits that this is a case where the respondents attracted an evidentiary burden to provide the Court with proof that in the event of the applications for leave to appeal failing, they have the intention to and the means to refund the public and the manner in which this will be done. They have not done so. NERSA has not attempted to do so. SALGA has not demonstrated such harm. SALGA’s case [80]      SALGA submits that as the applicant bears the onus of proof, it was under an obligation to provide evidence in relation to every municipality to show the absence of irreparable harm. [81]      SALGA has pleaded that the conclusion that the respondents will not suffer irreparable harm can only be made if the impact of the order sought upon each of them has been assessed. AfriForum has not conducted any such assessment and cannot state, as a fact, that the respondents will not suffer irreparable harm if the order is in operation and executed. [82]      SALGA rejects it has attracted an evidentiary burden to show it, or the municipalities will suffer irreparable harm. SALGA contends that to impose an evidentiary burden on it would be akin to reversing Plascon-Evans . As these are motion proceedings in which SALGA is a respondent, they ought not to attract an onus. [83]      SALGA pleads that AfriForum, not SALGA, must “investigate the financial position of all the affected municipalities and then produce evidence that leave to execute will not result in irreparable harm to such municipalities.” [37] AfriForum, as it bears the onus, should have obtained "the necessary evidence from the affected municipalities, their customers and Eskom, to prove, on a balance of probabilities, that leave to execute will not cause them irreparable harm. [38] [84]      SALGA pleads that this would include an assessment of: the cost at which the respondent municipalities procure bulk electricity from Eskom; network operating costs; retail operating costs; expenses relevant to the supply of electricity to customers; sales forecasts; the rate at which the respondents charge their electricity customers for electricity supplied to them; whether the rate at which the respondents charge their electricity customers enables them to recover the cost at which they procure bulk electricity from Eskom; the respondent municipalities’ financial ability to service their Eskom current account with what they charge their electricity customers and what they have projected to recover from such customers; the impact of the respondent municipalities not being able to service their Eskom current account on their ability to provide other services for which they are constitutionally obliged to provide and the consequences of the respondent municipalities not being able to provide other services, which they are in law required to provide, as a result of them not being able to recover the full costs at which they procure bulk electricity from Eskom. [39] [85]      SALGA submits that one of the orders granted by the Court is that municipalities must charge their electricity consumers in accordance with their 2023/2-24 tariffs. These tariffs do not allow municipalities to recover the full amount that they paid to Eskom for the procurement of bulk electricity at Eskom's 2024/2025 tariffs because they were not designed to do so. Section 15 of the ERA entitles Municipalities to recover their full costs of supplying electricity to their customers together with a reasonable margin. [86]      SALGA rejected that it had attracted an evidentiary burden – and submitted that even if it had – it had, it had met such an onus. NASA's case [87]      NERSA's case on irreparable harm broadly accorded with SALGA's opposition. The actual dispute on this front is between SALGA and AfriForum. Absence of irreparable harm for the respondents [88]      The Court accepts Afriforum’s submission that the municipalities will not suffer harm, as for years, possibly decades, the municipalities have been charging inflated tariffs. In addition, the 2023/2024 financial year’s tariffs were unlawful, as Kubushi J permitted the municipalities to charge the unlawful tariffs whilst they get their houses in order. In addition, the Municipalities have been charging unlawful tariffs for the past five months of this financial year 2024/2025. Even if the Court granted the 18(3), the municipalities that have not done cost of supply studies can still charge the inflated 2023/2024 tariffs. There is no basis presented on which it can be contended that the municipalities will suffer irreparable harm. [89]      The Court has considered SALGA's opposition. Essentially, what SALGA requires from AfriForum is for each municipality that did not conduct a cost-of-supply study, to prove that the municipality will not suffer irreparable harm. This, submits SALGA must occur despite AfriForum pointing out to the common cause fact that Municipalities have been charging inflated rates for years. [90]      In addition, not one municipality opposed the 18(3) and none of them entered the fray in the application for special leave to the Supreme Court of Appeal. [91]      The Court finds in accordance with Tyte that the municipalities attracted, in these circumstances, an evidentiary burden. The information falls exclusively in the municipalities' knowledge and AfriForum has provided enough of a case to give rise to such an evidentiary burden. [92]      It also weighs with the Court that, unlike in Tyte , the respondents in this case are organs of state and NERSA. They attract an additional obligation to be transparent with their customers and with the Court. NERSA has a specific role as custodian and regulator. It is not enough for state organs to say AfriForum must prove facts which fall within the municipalities' knowledge – in circumstances where one would expect the municipalities to play open cards with the Court. [93]      In any event, even if the respondents had been able to prove harm, the Court finds it is not irreparable. The Court finds nothing to gainsay AfriForum’s submission that if there is any harm to the municipalities – they can make up for such harm in their next financial year's budget. However, this would have to be done in terms of a cost-of- supply study and a lawful determination of electricity costs. Neither SALGA nor NERSA have indicated that any such losses could not be repaired through a budget determination which caters for it. On the common cause facts – the harm, if any, to be suffered by the Municipalities and the respondents before the Court is reparable. [94]      In these circumstances, the Court finds that the harm, if any, is plainly not irreparable. Discretion and prospects of success [95]      Having concluded that the requirements for interim execution has not been met, the Court declines the application. [96]      The Court notes that in Knoop the Court referred to a residual discretion to grant or refuse execution – and that at this stage, the prospects of success must be considered. On the basis that the Supreme Court of Appeal has granted leave to appeal, this Court must accept that another Court has concluded that there are reasonable prospects of success. As AfriForum has failed to prove that the public will suffer irreparable harm, this consideration does not alter the outcome of the case. Costs [97]      There was no allegation on the papers that AfriForum’s case was brought vexatiously or with mala fides. AfriForum has litigated this matter in pursuance of the public’s interest and seeking to enforce fundamental rights. It attracts the protection of the Bio-Watch principle and no basis has been provided to deviate from the principle. In these circumstances there is no order as to costs. Order [98]      The Court orders: a) The application for interim execution is dismissed with no order as to costs. I de Vos Acting Judge of the High Court Delivered: This judgment is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be e-mailed to the parties/their legal representatives. Counsel for Afriforum:         Etienne Botha Instructed by:                      Marjorie Van Schalkwyk, Hurter & Spies Counsel for NERSA:           Terry Motau, SC Realeboga Tshetlo Instructed by                       Prince Mudau & Associates Counsel for SALGA:           Kennedy Tsatsawane SC Kgomotso Kabinde Instructed by:                      H M Chaane Attorneys Date of the hearing:            29 November 2024 Date of judgment:               5 December 2024 [1] Afriforum seeks the interim execution of all aspects of the order except for those dealing with costs (paragraph 8) and with future financial years (paragraph 4). [2] (2024/061993) [2024] ZAGPPHC 638 (8 July 2024) [3] (63393/2021) [2022] ZAGPPHC 778 (20 October 2022) [4] NERSA’s AA, para 25 [5] Kubushi J para 33 [6] Knoop para 1 [7] Philani-Ma-Afrika and Others v Mailula and Others [2009] ZASCA 115; 2010 (2) SA 573 (SCA); [2010] 1 All SA 459 (SCA). [8] Knoop para 2 [9] South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) 1977 (3) SA 534 (A) (South Cape Corporation) at 544H-545G. [10] Knoop para 2 [11] Knoop para 46 [12] MV Ais Mamas: Seatrans Maritime v Owners MV Ais Mamas and another 2002 (6) SA 150 (C) at 156E- 157 [13] Knoop para 46 [14] Liesching and Others v The State [2018] ZACC 25; 2019 (4) SA 219 (CC) [15] University of the Free State v Afriforum and Another (929/2016) [2016] ZASCA 165 ; [2017] 1 All SA 79 (SCA); 2018 (3) SA 428 (SCA) (17 November 2016) (“UFS v Afriforum”) para 13 [16] UFS v Afriforum para 13 [17] The Minister of Social Development Western Cape & others v Justice Alliance of South Africa & another [2016] ZAWCHC 34 paras 26-29 [18] UFS v Afriforum para 15 [19] Ntlemeza v Helen Suzman Foundation and Another (402/2017) [2017] ZASCA 93 ; [2017] 3 All SA 589 (SCA); 2017 (5) SA 402 (SCA) (9 June 2017) [20] (479/2024) [2024] ZASCA 88 ; 2024 (6) SA 175 (SCA) (7 June 2024) [21] Tyte para 9 [22] Tyte para 14 [23] Tyte para 15 [24] 402/2017) [2017] ZASCA 93 ; [2017] 3 All SA 589 (SCA); 2017 (5) SA 402 (SCA) (9 June 2017) [25] Tyte para 11 [26] Kubushi J para 33 [27] South African Local Government Association and Another v Afriforum NPC (2024-061993) [2024] ZAGPPHC 826 (19 August 2024) at paras 60 - 63 [28] AfriForum FA para 35 [29] AfriForum FA paras 36 and 37 [30] Tyte para 25 [31] NERSA AA para 29 [32] SALGA AA para 2.25 [33] SALGA AA apra 2.27 [34] City of Tshwane v Afriforum [2016] ZACC 19 [35] Id para 59 [36] Hoffmann-La Roche & Co AG and Others v Secretary of State for Trade and Industry, Lord Wilberforce [37] SALGA AA para 2.13 [38] SALGA AA para 2.14 [39] SALGA AA para 3.8 sino noindex make_database footer start