About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2019
>>
[2019] ZAGPJHC 454
|
|
Pioneer Foods (Pty) Ltd v Eskom Holdings Soc Ltd and Others (00016/2018) [2019] ZAGPJHC 454 (31 October 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 00016/2018
In
the matter between:
PIONEER
FOODS (PTY)
LTD APPLICANT
and
ESKOM
HOLDINGS SOC
LTD FIRST
RESPONDENT
WALTER
SISULU LOCAL MUNICIPALITY SECOND
RESPONDENT
NATIONAL
ENERGY REGULATOR
OF
SOUTH
AFRICA THIRD
RESPONDENT
PHAKAMI
HADEBE FOURTH
RESPONDENT
J
U D G M E N T
VAN
OOSTEN J:
Introduction
[1]
This matter primarily concerns the interpretation of a court order
granted by Meyer J on 16 January 2018, within the context
of contempt
proceedings, brought by the applicant against the first respondent
(Eskom) and the fourth respondent, the then chief
operating officer
of Eskom (the main application).
Background:
the issue between the parties
[2]
In a nutshell the issue between the parties concerns the supply of
electricity by Eskom to the second respondent (the Municipality),
who
in turn distributes electricity
inter alia
to the applicant’s
plant in Aliwal North, which is situated within the area of the
Municipality. The Municipality fell into
arrears with payment for
electricity to Eskom. The arrears eventually amounted to some R115m.
As part of a strategy to exert pressure
on the Municipality to pay
the arrears, Eskom decided in November 2016 to limit the electricity
supply to the Municipality by way
of disruptions in the supply. A
settlement however was reached in January 2017, in terms of which
Eskom agreed not to enforce the
proposed disruptions. The
municipality however, defaulted in payment in terms of the settlement
agreement as well as a further
settlement agreement entered into in
September 2017, which resulted in a decision by Eskom to implement
the daily disruptions which
it had earlier suspended, with effect
from 14 December 2017. The disruptions severely impacted on the
applicant’s operations
at its plant in Aliwal North. On 22
December 2017 and by notice published in a local newspaper, Eskom
extended the times of the
supply interruptions, for the reason
proffered that Eskom and the municipality had failed to reach an
agreement in regard to the
settlement of the debt owed to Eskom.
[3]
Several attempts to overcome the impasse followed, including
bypassing the Municipality and Eskom supplying electricity direct
to
the applicant, but for various reasons not relevant for present
purposes, all failed.
[4]
During December 2017 the applicant addressed correspondence demanding
that steps be taken and undertakings given to ensure uninterrupted
electricity supply to its Aliwal North plant. No positive response
was received which prompted the applicant to launch urgent
proceedings in this court against Eskom and the Municipality.
The
litigation between the parties
[5]
On 3 January 2018 the applicant brought an urgent application against
Eskom, the second respondent and the third respondent
(the first
application). In the notice of motion, consisting of parts A and B,
the review and setting aside of the decisions by
Eskom to implement
the electricity supply interruptions I have already referred to, is
sought as well as further orders aimed at
compelling Eskom to supply
electricity on an uninterrupted basis to the applicant’s plant
or to the Municipality.
[6]
Eskom and the Municipality each filed a notice of intention to oppose
the application and Eskom filed an answering affidavit.
Prior to the
hearing of the matter, the parties agreed on a draft order, which
Meyer J at the hearing on 16 January 2018, made
an order of court.
The order reads as follows:
1.
The first respondent shall give
the applicant 15 calendar days’ notice before implementing any
further electricity interruptions
to the second respondent, and the
applicant may then re-enrol Part A of the application on the urgent
roll;
2.
Part A of the application is
removed from the urgent court roll for 16 January 2018;
3.
All costs are reserved for
future determination.
(the
Meyer J order)
[7]
On 1 December 2018 the applicant brought a further urgent application
against Eskom in which it sought an order declaring that
Eskom was in
breach and/or wilful contempt of the Meyer J order. The matter was
heard by Siwendu J, who having heard argument on
behalf of the
applicant and Eskom, on 5 December 2018, granted an order in terms of
a draft order prepared by counsel for the applicant.
In terms thereof
the declarator sought was granted and Eskom
and the Municipality
were ordered to cease acting in contravention of the Meyer J order
and to supply electricity on an uninterrupted basis to the
Municipality until such time as the required 15 days’ notice of
implementation of any further electricity supply interruptions
is
given by Eskom to the applicant. The fourth respondent, who without
there having been compliance with the procedural steps providing
for
joinder, was merely added in the case heading as the fourth
respondent, was ordered to ensure that the orders granted, were
implemented by Eskom. A written judgment was delivered by Siwendu J,
on 11 December 2018 (the Siwendu J judgment and order). On
6 December
2018 Eskom filed an application for leave to appeal the Siwendu J
judgment and order. Leave to appeal was refused but
the parties are
still awaiting the judgment.
[8]
On 10 December 2018 a further urgent application was instituted. In
this application the applicant sought a declarator of contempt
of
court against Eskom in respect of both the Meyer J and Siwendu J
orders and, once again, for orders for compliance similar to
those
sought by the applicant against Eskom before Siwendu J. The matter
came up for hearing on 11 December 2018, before Modiba
J, who ordered
that pending the final determination of the application, Eskom was to
comply with the Meyer J and Siwendu J orders
and not to interrupt the
supply of electricity to the Municipality and the applicant (the
Modiba J order). The learned judge did
not deliver a judgment.
[9]
In terms of a directive issued by the Deputy Judge President, dated
25 January 2019, this matter as well as a parallel running,
almost
identical matter between the applicant and Eskom and the Dihlabeng
Local Municipality (case no 2018/11429) (the Dihlabeng
matter) were
enrolled for hearing together on 29 July 2019 and directions given in
order to ensure trial readiness of the matters.
The matters came
before me on 29 July but, by agreement between the parties, were
postponed on 30 July 2019, to 21 October 2019,
and directions issued
in regard to a core bundle of documents and the delivery of
supplementary heads of argument. These are the
matters presently
before me. In view thereof that the matters were not consolidated,
separate judgments will be delivered, which
because of their
similitude, should be read together.
The
Opperman J judgment and order
[10]
On 19 February 2019 the applicant launched urgent applications
against Eskom for contempt of court in respect of the Modiba
J order,
in the present as well as in the Dihlabeng matter. These matters
although not consolidated, were heard together by Opperman
J. On 5
March 2019 Opperman J delivered a written judgment and order in
favour of the applicant in both applications (reported
sub nom
Pioneer Foods (Pty) Ltd v Eskom Holdings Soc Limited
2019 JDR
0564 (GJ)) (the Opperman J judgment and order). I shall revert to the
judgment and the question whether
stare decisis
applies in
respect thereof.
Eskom’s
application in terms of Rule 6(5)(e)
[11]
At the commencement of the hearing before me, Eskom in terms of an
earlier filed notice of motion, applied for the admission
of a
further affidavit and annexures thereto, under the provisions of Rule
6(5)(e). In short, the documents sought to be admitted
are all the
papers filed in the first application.
[12]
The applicant vehemently opposed the admission of those documents on
the grounds which I shall presently deal with.
[13]
Before the commencement of argument before me, I ruled that the
question of admissibility of the documents was to be argued
in
context and as part of the argument on the merits of the main
application.
The
orders granted
[14]
At the conclusion of argument before me, I made the order appearing
at the end of this judgment and indicated to the parties
that written
reasons for the order will be delivered in due course. What follows
are those reasons.
Evaluation
[15]
The heart of the applicant’s case is the Meyer J order. An
interpretation of the order by this court is called for and
consequently in the light thereof, a consideration of the Siwendu J
judgment and order, the Modiba J order and finally, the Opperman
J
judgment and order.
[16]
First then, the Meyer J order. A plain reading of the Meyer J order
reveals that it is purely procedural in nature and that
it does not
impose a duty on Eskom to supply uninterrupted electricity, let alone
whether in circumstances of electricity supply
interruptions or load
shedding. The order simply imposes a duty on Eskom to give notice
before implementing any further electricity
interruptions. The reason
for imposing a time limit to the notice is apparent from the order.
It permitted the applicant to re-enrol
part A of the application in
the urgent court. The order accordingly plainly does not deal with
nor dispose of any of the relief
sought in part A of the notice of
motion. As much is apparent in that part A was removed from the roll
with the expressly stated
reservation of the applicant’s right
to re-enrol the matter on the urgent roll after due notice had been
given by Eskom.
[17]
The relief sought in the notice of motion is anything but a model of
clarity. Meyer J was not required to consider and consequently
did
not consider the nature of the relief sought in the notice of motion,
as the learned judge was informed in a practice note
submitted by
counsel for the applicant, filed prior to the hearing, that a draft
order had been agreed upon between the parties
and that the court was
only required to make the draft order, a copy of which was attached,
an order of court like any other order
of court. Once the order was
made, it for all intends and purposes became an order of court. I do
not consider it relevant for
purposes of this judgment to deal any
further with the confusing and inelegant manner in which the relief
sought in the notice
of motion was formulated. Suffice it to say that
in no less than two separate prayers of part A, direct orders are
sought concerning
Eskom’s electricity supply. First, in prayer
3 thereof, an order is sought that ‘the first respondent is
ordered to
supply electricity on an uninterrupted basis to the
applicant’s premises located at Parson Street in Aliwal North
alternatively
to the second respondent’. Second, an
order is sought, in prayer 5 thereof, ‘
in the further
alternative
to paragraphs 3 and 4 above’ and ‘pending
the final determination of the relief sought in part B below’
for Eskom
‘to supply electricity on an uninterrupted basis to
the applicant’s premises
alternatively
the second
respondent’. For the sake of completeness, prayer 3 of part A
is mirrored in part B of the notice of motion, as
prayer 2, which,
together with the other relief, is sought ‘to the extent that
such relief had not been granted under part
A of the application’.
[18]
Against this backdrop the conclusion is ineluctable that had it been
the intention of the order to impose a duty on Eskom to
supply
uninterrupted electricity, either prayer 3 or 4 of part A would have
been incorporated into the order. It is inconceivable
that an order
imposing a duty on Eskom to supply uninterrupted electricity, when
part A was before the court, would not have been
made effective
pending the adjudication of part B. It was notably assumed in
argument before me, that the Meyer J order was an
interim order,
subject to the finalisation of the application. I am unable to
interpret in any way or to read anything into the
Meyer J order, as
it stands, indicating that it was an interim order.
[19]
The result is that this court is now urged by the applicant to
interpret the Meyer J order, rather opportunistically, as rightly
submitted by counsel for Eskom, to the effect that it imposed a duty
on Eskom to supply uninterrupted electricity. This is what
I now turn
to deal with, on the basis that the findings I have thus far made are
wrong.
[20]
Counsel for the applicant contended for the order of Meyer J to apply
to
all
electricity interruptions by Eskom, whether pursuant to
its enforcement of payment of debt strategy on the one hand, or,
general
load shedding on the other hand. The order, so the argument
went, is clear and unambiguous and therefore does not require
interpretation.
Counsel heavily relied on the judgments and orders of
Siwendu J and Opperman J as constituting definitive binding
precedents which
counsel submitted, must be followed by this court,
based on the principles of
stare decisis
and issue estoppel.
[21]
Concerning the ‘admission’ of the papers filed in the
first application, counsel for the applicant contended that
those
documents were irrelevant and therefore inadmissible for the purpose
of determining the meaning of Meyer J order, which so
the argument
went, is clear as to its meaning as it stands.
[22]
Counsel for Eskom, in comprehensive heads of argument and helpful
argument before me, raised the concern, in my view not without
justification, that the applicant’s objection to the admission
of the documents was merely to hide from this court, the facts
and
circumstances that served before the court in that application.
[23]
The point of departure is to consider the merit of the applicant’s
objection to the admission of the documents. The objection
is
ill-conceived. The judgments relied upon by counsel in support of the
objection, are clearly to be differentiated and are accordingly
not
applicable to this matter. In
Minister of Land Affairs and
Agriculture and Others v D & F Wevell Trust and Others
2008
(2) SA 184
(SCA) the court dealt with reliance on pages or passages
in annexures to an affidavit that were not specifically referred to
or
explained in the affidavit. An analogous
ratio
was
expressed in regard to a statement appearing in an annexure to the
affidavit not relied upon, in
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
.
On the same
footing are arguments raised at the hearing that have not been
specifically raised in the papers and therefore not dealt
with (
Eskom
Holdings Ltd and Another v New Reclamation Group (Pty) Ltd
2009
(4) SA 628
(SCA)). Lastly, counsel referred to the well-established
principle in actions, that parties are held to their pleadings and it
is impermissible to have recourse to issues falling outside the scope
of the pleadings (
Minister of Safety and Security v Slabbert
[2010] 2 All SA 474
(SCA)).
[24]
In the present matter the Meyer J order is pivotal to the applicant’s
case as well as in the consideration of the orders
made subsequent
thereto, all in the very same matter, between the same parties and
equally based on the Meyer J order. In accordance
with the
well-established canons of construction, the order must be
interpreted in its context and in the light of relevant circumstances
which are only to be found in the papers filed in the first
application. Put differently, the court will not consider the order
in isolation but in its contextual setting and with regard to
relevant prevailing circumstances (Cf
Engelbrecht and Another NNO
v Senwes Ltd
2007 (3) SA 29
(SCA) para [6] and [7]). In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
(920/2010)
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA), Wallis JA, writing for the
court, in dealing with the proper approach to interpretation,
reformulated the traditional approach
to the interpretation of
contracts and other documents as follows:
‘
The present state of the law
can be expressed as follows. Interpretation is the process of
attributing meaning to the words used
in a document, be it
legislation, some other statutory instrument, or 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. The process is
objective not subjective. A sensible meaning is to be preferred to
one that leads to
insensible or unbusinesslike results or undermines
the apparent purpose of the document. Judges must be alert to, and
guard against,
the temptation to substitute what they regard as
reasonable, sensible or businesslike for the words actually used. To
do so in
regard to a statute or statutory instrument is to cross the
divide between interpretation and legislation. In a contractual
context
it is to make a contract for the parties other than the one
they in fact made. The ‘inevitable point of departure is the
language of the provision itself’, read in context and having
regard to the purpose of the provision and the background to
the
preparation and production of the document.’
[25]
These principles are consistent with the dictum of the Constitutional
Court in
Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC), that ‘the emerging trend in
statutory construction is to have regard to the context in which the
words occur, even
where the words to be construed are clear and
unambiguous’. (See also
Shakawa Hunting & Game Lodge
(Pty) Ltd v Askari Adventures CC
(44/2014)
[2015] ZASCA 62
(17
April 2015);
Eke v Parsons
2016 (3) SA 37
(CC) para [25]; and
Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport
(Edms) (Bpk)
2014 (2) SA 494
(SCA), where Wallis JA emphasised,
that while the starting point remains the words of the document,
which are the only relevant
medium through which the parties have
expressed their contractual intentions, the process of interpretation
does not stop at a
perceived literal meaning of those words, but
considers them in the light of all relevant and admissible context,
including the
circumstances in which the document came into being.)
[26]
In the present application the applicant, in the founding affidavit,
selectively refers to certain facts in the first application:
reference is made to the interim interdictory relief that was sought
‘to prevent the implementation of electricity supply
interruptions to the Municipality and to review and set aside the
decision made by Eskom to implement interruptions in electricity
supply to the Municipality’. Having sketched a mere skeleton
background, the deponent then arrives at the conclusion:
‘
The relief in the main
application was required by Pioneer Foods on account of, and was
based on, the substantial and irreparable
harm that would be
experienced by Pioneer Foods should
any
interruptions of electricity supply to the Municipality be
implemented.’
[underlining
in the original]
[27]
Two observations are apposite: first, the motivation for seeking the
relief, as I have alluded to, contains incomplete information
as to
the background facts pertaining to obtaining the Meyer J order. But,
it goes further: the information provided cannot be
gleaned from the
Meyer J order when read in isolation. Thus seen, the applicant did
not confine itself to the words of the order
in isolation, as counsel
for the applicant painstakingly urged this court to do, but proceeded
way beyond those words for the unsubstantiated
conclusion that the
order referred to
any
interruptions. Secondly, the applicant’s
reason for obtaining the interim interdictory relief, is directed at
a review and
setting aside of ‘the decision made by Eskom to
implement interruptions in electricity supply to the Municipality’.
That, seemingly, is at odds with the attempt to extend the ambit of
the Meyer J order to
any
interruptions. And finally, had it
been the intention for the order to apply to all interruptions, the
question arises why then
seek a review and setting aside of the
decisions of Eskom to implement interruptions in electricity supply
to the Municipality?
[28]
Applied to this court’s interpretation of the Meyer J order,
the order refers to ‘any further electricity interruptions’
which logically is premised on previous interruptions. Exactly what
kind of interruptions pre-ceded the order cannot be ascertained
from
the order. It requires a consideration of the facts of the matter as
set out in the affidavits and annexures thereto. It
is
imperative that all relevant facts are before this court. I am unable
to find any sound reason for excluding the application
papers from
the consideration of this matter. No formal application for its
‘admission’, in my view, was necessary.
The recalcitrant
attitude adopted by the applicant in objecting thereto, prompted
Eskom to formally apply for its admission. Eskom
cannot be faulted
for ensuring, by way of a formal application, that this court was
apprised of the full content of the application
in order for it to
come to a just decision.
[29]
In this matter the cardinal difference between interruptions in
Eskom’s electricity supply to a Municipality, due to
non-payment to Eskom, one the one hand, and general load shedding
applied countrywide, on the other hand, as is comprehensively
dealt
with in the papers, is of crucial importance. Counsel for the Eskom
have referred me to the judgment of Van der Linde J in
Resilient
Properties (Pty) Ltd v Eskom Holdings SOC Ltd and Others
2019 (2)
SA 577
(GJ) where the learned judge dealt with the differentiation in
the different forms of electricity supply interruption. The main
application is wholly based on the non-payment scenario, indeed, no
mention at all is made of load shedding. It is trite that a
party
will be held to the case made out in the affidavits and that another
issue may not be canvassed at the trial (
Imprefed (Pty) Ltd v
National Transport Commission
1993 (3) SA 94
(A) 107G-H;
Mostert
v Firstrand Bank t/a RMB Private Bank
2018 (4) SA 443
(SCA) para
[13]). The Meyer J order accordingly did not nor could it have
referred to load shedding. It is only when the urgent
contempt
applications were brought that load shedding was brought to the fore.
Eskom explained that the alleged breaches of the
orders all resulted
from load shedding and thus had nothing to do with supply
interruptions. This has not been disputed by the
applicant. The
terminology used to describe each is vastly different: electricity
supply interruptions are not referred to as load
shedding and
vice
versa
.
[30]
I merely need to add, for the sake of completeness, that the relief
sought in the first application cannot in any way be reconciled
with
an application for unrestricted uninterrupted electricity supply by
Eskom, as in now contended for by the applicant. Negating
any such
inference or interpretation is the relief sought, both in part A and
B, ‘to review and set aside the decision of
Eskom to implement
interruptions in the electricity supply to the second respondent
defined as ‘the first decision’
and ‘the second
decision’ in the founding affidavit of Tertius Alwyn Carstens
…’. No doubt, the review
relief would have been
superfluous and indeed irrelevant in regard to load shedding.
[31]
The main application accordingly flounders at this hurdle. I do,
however, consider it necessary to comment on the Siwendu J
judgment
and order and the Opperman J judgment and order, for the purpose of
dealing with counsel for the applicant’s contention
relating to
stare decisis
.
[32]
At the outset it is necessary to once again stress the binding effect
of judgments which is basic to
stare decisis
. The exception
allowing for a departure from stare decisis is where the earlier
decision is held to be clearly wrong. In
Patmar Explorations (Pty)
Ltd and Others v Limpopo Development Tribunal and Others
2018 (4)
SA 107
(SCA), Wallis JA dealt with the basic principle and exception
thereto, as follows:
‘
The basic principle is stare
decisis, that is, the Court stands by its previous decisions, subject
to an exception where the earlier
decision is held to be clearly
wrong. A decision will be held to have been clearly wrong where it
has been arrived at on some fundamental
departure from principle, or
a manifest oversight or misunderstanding, that is, there has been
something in the nature of a palpable
mistake. This Court will only
depart from its previous decision if it is clear that the earlier
court erred or that the reasoning
upon which the decision rested was
clearly erroneous. The cases in support of these propositions are
legion. The need for palpable
error is illustrated by cases in which
the court has overruled its earlier decisions. Mere disagreement with
the earlier decision
on the basis of a differing view of the law by a
court differently constituted is not a ground for overruling it.’
The
Siwendu J judgment and order
[33]
The matter before Siwendu J initially was for an order that Eskom was
in wilful contempt/breach of the Meyer J order. Siwendu
J mentions in
her judgment that the applicant amended the relief sought in that it
no longer wished to pursue the order for wilful
contempt but merely
‘to compel enforcement of the order’, the meaning of
which escapes me. In paragraph 1 of the Siwendu
J order, a declarator
is issued that Eskom is in breach of the Meyer J order. No instances
of Eskom’s breach of the Meyer
J order are mentioned in the
judgment of Siwendu J, and in respect of load shedding, the learned
judge found, ‘There is no
doubt that there are compelling
reasons and justifications for these interruptions which have become
a fact of life countrywide’.
[34]
Having found the issue before the court concerned the interpretation
of the Meyer J order, Siwendu J held:
‘
The order as it stands
constitutes the common intention of the parties at the time and is
complete memorial of the agreement ultimately
made an order of court
and extrinsic evidence may not be lead contradicting its terms….The
issue is not what either of them
may have had in mind or a reasonable
explanation by a party. Where the language is clear and unambiguous,
the court must give effect
to it.’
[35]
The finding of
Siwendu J in the excerpt quoted, that Meyer J order was clear and
unambiguous, seems to be at odds with the further
finding
‘notwithstanding the genesis of the application and the dispute
between the parties’ the Meyer J order refers
to ‘any
further interruptions’ which ‘is not qualified, making it
impossible to distinguish between the various
categories of
interruptions that may arise’. Had the learned judge considered
the context of and the relevant circumstances
relating to the Meyer J
order, the findings I have referred to, would have been in direct
conflict therewith. The learned judge
moreover, closed the door to a
consideration of context and relevant surrounding circumstances,
which having regard to the judgments
I have alluded to, is plainly
incorrect.
[36]
Siwendu J then
reasoned, in order to overcome the apparent difficulty, that had
Eskom sought ‘to exclude the multiple categories
of
interruptions it would have included this in the order’. I am
unable to approve of the reasoning. The court was required
to
interpret the Meyer J order in the process of determining the true
meaning thereof, as I have dealt with above. The onus placed
on Eskom
to have included this in the Meyer J order and further disapproving
Eskom’s failure in seeking ‘to vary the
order either
before or during the proceedings’, in my view, are irrelevant
considerations in the adjudication of the dispute
between the
parties. Nor could these considerations, in the absence of an
interpretation of the Meyer J order, have served as ‘securing’
the applicant’s contention ‘that it is in respect of all
interruptions implemented by Eskom’.
[37]
In paragraph 2 of the Siwendu J order both Eskom and the Municipality
are ordered to cease acting in contravention of the Meyer
J order.
From a reading of the Siwendu J judgment it is apparent that no case
for such relief against the Municipality is made
out. The reason for
making this order is hard to find. A court order must be obeyed at
all times and a further order in the event
of a breach thereof, to
cease such breach or contravention, in my view, is toutologous and
unnecessary.
[38]
In paragraph 3 of the Siwendu J order, Eskom is ordered ‘to
supply electricity on an interrupted basis’ to the
Municipality
‘until such time as the required 15 days’ calendar notice
of implementation of any further electricity
supply interruptions’
to the Municipality is given by Eskom to the applicant ‘as
required by the 16 January 2018 order’.
This part of the order
evidently constitutes an amendment of paragraph 1 of the Meyer J
order: Eskom is now ordered to supply electricity
on an uninterrupted
basis, words one looks in vain for in the Meyer J order. Siwendu J
does not deal with this aspect in her judgment.
[39]
For all the given reasons I am driven to conclude that the Siwendu J
judgment and order are clearly wrong and I accordingly
decline to
follow it.
The
Opperman J judgment and order
[40]
In the applications before Opperman J, the applications for contempt
of court were based on the Modiba J orders of 11 December
2018.
In setting out the chronology of relevant facts, the learned judge
refers to the Meyer J order. In the course of the
judgment, Opperman
J refers to the common cause fact that all power cuts alleged to have
constituted breaches of the Modiba J order,
were due to load shedding
and not to non-payment of electricity accounts by the Municipality to
Eskom. The learned judge accordingly,
as is readily apparent from
other portions of the judgment, was acutely alive to the difference
between electricity supply interruptions
on account of non-payment
and load shedding.
[41]
Opperman J considered the arguments advanced in regard to the
interpretation of the Meyer J order as ‘a waste of time’
thereby disregarding the importance of considering the nature and
interpretation of the Meyer J order. In my view, as I have alluded
to, the Meyer J order constitutes the genesis in all the
inter-related applications. An interpretation of any of the
subsequent
orders, including the Modiba J order, without first having
properly interpreted the Meyer J order, would result in an exercise
in futility. As much must by now be apparent from my consideration of
and findings in regard to the Siwendu J judgment and order.
[42]
The reasoning of Opperman J in upholding the applicant’s
contentions reveals a misdirection as to concessions made during
oral
argument by counsel. It is dealt with as follows. Having found it
‘strange’ that ‘the scope of the interim
orders
have been interpreted to be wider than that which defines the
lis
between the parties in the part B relief’ the learned judge
continues as follows:
‘
There is no review of the load
shedding pending. What is being reviewed is interruption of
electricity supply to the municipalities
on a basis other than
national load shedding. Although the relief itself is couched in wide
terms the founding affidavits do not
mention load shedding. The
disputes are confined to non-payment of arrear accounts and Eskom’s
termination of electricity
supply due to non-payment of accounts by
the Municipalities.’
[43]
The learned judge, in my view, correctly embarked upon an
interpretation of the orders in their context and having regard to
the relevant circumstances, much in line with the process of
interpretation I followed. And, I hasten to add, all the
considerations
referred to by the learned judge before turning to the
concession, definitively militate against the applicant’s
interpretation
of the orders.
[44]
Regrettably, with respect to the learned judge, the exercise of
interpretation was interrupted by the learned judge’s
reference
to and weight afforded to a concession that had been made by counsel
for Eskom. The concession is referred to in the
judgment as follows:
‘
The meaning and scope of such
orders (that the Madiba orders include within their ambit
interruptions in the electrical supply attributable
to load shedding)
have been conceded by Mr
Koza
and his two juniors and
were in fact consented to.’
and
further
‘
[M]uch time in court was wasted
debating the interpretation of the [Meyer J] order. In the end the
interpretation was conceded.’
The
concession made persuaded the learned judge that load shedding was
included in the ambit of the Madiba J orders and a declarator
that
Eskom was in breach of the Modiba J order, was issued.
[45]
Interpretation is a matter of law. It is trite law that the court is
not bound by a legal concession made by counsel if in
the view of the
court, such concession is clearly erroneous. In this regard the
remarks of Ngcobo J in
Matatiele Municipality and Others v
President of the Republic of South Africa and Others
[2006] ZACC 2
;
2006 (5)
BCLR 622
(CC);
2006 (5) SA 47
(CC) (para [67]) are apposite:
‘
Here, we are concerned with a
legal concession. It is trite law that this Court is not bound by a
legal concession if it considers
the concession to be wrong in law.
Indeed, in
Azanian Peoples
Organisation (AZAPO) and Others v President of the Republic of South
Africa and Others
[1996] ZACC 16
;
[1996 (4)
SA 671
(CC);
1996 (8) BCLR 1015
(CC)] this Court firmly rejected the
proposition that it is bound by an incorrect legal concession,
holding that [Id at para 16],
‘if that concession was wrong in
law [it], would have no hesitation whatsoever in rejecting it’.
Were it to be otherwise,
this could lead to an intolerable situation
where this Court would be bound by a mistake of law on the part of a
litigant. The
result would be the certification of law or conduct as
consistent with the Constitution when the law or conduct, in fact, it
is
inconsistent with the Constitution.’
[46]
Applied to the concession made counsel for Eskom before Opperman J,
it would only have been of any value, had it been assessed
by the
learned judge as correct or, for example, where it was made by way of
confirmation by counsel of the court’s
prima facie
view
in argument which in the judgment is made final. Put differently, a
concession, for it to be accepted, must accord with the
findings of
the court on the legal matter so conceded. The court should not
blindly accept a concession on a legal matter in substitution
of its
own adjudication of that matter.
[47]
As I have alluded to, Opperman J commenced with the exercise of
interpreting the order. The learned judge however did not conclude
the exercise but solely relied on the concession made by Eskom’s
counsel that the applicant’s interpretation was correct.
The
concession, in my view, was wrongly made and should have been
rejected by the court. Another difficulty is apparent from the
reasoning: I fail to understand the significance or relevance of
counsel for Eskom having ‘consented’ to the meaning
and
scope of the orders.
[48]
In view of Opperman J’s reliance that was wrongly placed on the
concession, I do not consider myself bound to follow
the judgment.
Conclusion
[49]
For all the above reasons I have come to the conclusion that the
application must fail. Turning to costs, the first and fourth
respondents are entitled to their costs and the employment of two
counsel was clearly warranted.
[50]
One last observation. The part B review is still pending. The
applicant went to great lengths in bringing numerous urgent
applications in this court. What seems to have been overlooked is the
real purpose of the application which is the review of the
Eskom
decisions. It is now almost two years since the first application was
launched and part B is still not ready for trial. It
would have been
finalised long ago had the same vigour and industriousness displayed
in the launching of the numerous urgent applications,
persevered. The
finalisation of the application is still not nigh. In the meanwhile,
Mr Hadebe, the fourth respondent, has left
the employ of Eskom. The
Eskom decisions sought to be reviewed, were taken in a specific set
of circumstances that existed at the
time, which by now and almost
certainly when the matter is eventually heard, will have gathered
dust probably having paled into
insignificance. The question is: even
assuming that the Eskom decisions were to be reviewed and set aside,
where does that take
the applicant? The matter may well have become
moot and pursuing the matter just for some ulterior motive, absent
any practical
impact, necessitates careful re-consideration (
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs
2000 (2) SA 1
(CC) para [21]). I do however derive
comfort from the absence of any doubt that this aspect will not
escape the attention of the
court hearing part B.
Order
[51]
In the result the following order is made:
1.
The first
respondent’s further affidavit with annexures thereto, is
allowed in terms of Rule 6(5)(e).
2.
The main
application is dismissed.
3.
The
applicant is to pay the costs of:
2.1
the first
respondent’s application in terms of Rule 6(5)(e); and
2.2
the
main application,
such costs to include the
costs consequent upon the employment of two counsel.
____(
ORIGINAL
SIGNED)
_
___
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPLICANT: ADV PL CARSTENSEN SC
APPLICANT’S
ATTORNEYS: WEBBER WENTZEL
COUNSEL
FOR 1
ST
& 4
th
RESPONDENTS: ADV
SL SHANGISA
ADV
L RAKGWALA
1
st
& 4
th
RESPONDENTS’
ATTORNEYS: NGENO & MTETO INC
DATE
OF HEARING: 21 OCTOBER 2019
DATE
OF ORDER: 21 OCTOBER 2019
DATE
OF JUDGMENT: 31 OCTOBER 2019