CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 44/22
In the matter between:
ESKOM HOLDINGS SOC LIMITED Applicant
and
VAAL RIVER DEVELOPMENT ASSOCIATION (PTY)
LIMITED First Respondent
NGWATHE LOCAL MUNICIPALITY Second Respondent
NATIONAL ENERGY REGULATOR OF SOUTH AFRICA Third Respondent
MINISTER OF ENERGY Fourth Respondent
PREMIER, FREE STATE Fifth Respondent
MEMBER OF THE EXECUTIVE COUNCIL FOR
COOPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS,
FREE STATE Sixth Respondent
Case CCT 44/22
ESKOM HOLDINGS SOC LIMITED Applicant
and
LEKWA RATEPAYERS ASSOCIATION NPC First Respondent
LEKWA LOCAL MUNICIPALITY Second Respondent
NATIONAL ENERGY REGULATOR OF SOUTH AFRICA Third Respondent
MINISTER OF ENERGY Fourth Respondent
PREMIER, MPUMALANGA Fifth Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS,
MPUMALANGA Sixth Respondent
Neutral citation: Eskom Holdings SOC Ltd v Vaal River Development Association
(Pty) Ltd and Others [2022] ZACC 44
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ
Judgments: Unterhalter J (minority): [1] to [188]
Madlanga J (majority): [189] to [310]
Heard on: 23 May 2022
Decided on: 23 December 2022
Summary: Interim interdicts — nature of prima facie right — rights in Bill of
Rights — content of rights — whether rights established — role of
final relief in interim orders
Bulk electricity supply — reduction of elect ricity supply —
section 21(5) of the Electricity Regulation Act
Pleadings — interpretation and purpose of pleadings —
sufficiency of pleaded case
Section 7(2) of the Constitution — duty to respect rights — duties
of different organs of state — role and functions of local
government — section 152 and 153 of the Constitution
Section 7(2) of the Promotion of Administrative Act — exhaustion
of internal remedies — section 30 of the Electricity Regulation Act
Subsidiarity — direct invocation of the Constitution or not —
electricity regulatory framework
3
Grounds of review — procedural fairness — rationality — ulterior
motive
Balance of convenience — separation of powers —
polycentricty — rights violations — stability of national grid
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Division, Pretoria):
1. Leave to appeal is granted.
2. The appeal is dismissed with costs, such costs to include the costs of two
counsel.
JUDGMENT
UNTERHALTER AJ (Kollapen J, Majiedt J and Mlambo AJ concurring):
Introduction
[1] This is an application for leave to appeal against a judgment and order of the
Supreme Court of Appeal dismissing the applicant’s appeal against the judgment and
order of the High Court of South Africa, Gauteng Division, Pretoria (High Court).1 The
High Court granted an interim interdict in terms of which it prohibited the applicant
1 Eskom Holdings SOC Ltd v Lekwa Ratepayers Association [2022] ZASCA 10; 2022 (4) SA 78 (SCA)
(Supreme Court of Appeal judgment).
UNTERHALTER AJ
4
from implementing its decision to reduce bulk electricity supply to two municipalities,
pending finalisation of an application to review that decision.2
Parties
[2] The matter originates from two urgent applications that were joined before the
High Court. Before this Court , although there is but one application, the parties are
cited as they were in the original applications.
[3] Eskom Holdings SOC Limite d (Eskom) is the applicant in both applications.
The National Energy Regulator of South Africa (NERSA) and the Minister of Energy
(Minister) are the third and fourth respondents in both applications.
[4] In the first application, the first respondent is the Vaal River Development
Association (Pty) Limite d, a non -profit organisation representing the residents of
Ngwathe Local Municipality (Ngwathe Municipality) . Ngwathe Municipality is the
second respondent. The fifth and sixth responde nts are the Premier of the Free State
and the Member of the Executive Council for Cooperative Governance and Traditional
Affairs, Free State.
[5] In the second application, the first respondent is the Lekwa Ratepayers
Association, a non -profit organisation representing the residen ts of Lekwa Local
Municipality (Lekwa Municipality) . Lekwa Municipality is the second respondent.
The fifth and sixth respondents are the Premier of Mpumalanga and the Member of the
Executive Council for Cooperative Governance and Tra ditional Affairs, Mpumalanga.
The first respondents in both applications are referred to jointly as “the Associations”
or “the residents”.
2 Vaal River Development Association (Pty) Ltd v Eskom Holdings SOC Ltd; Lekwa Rate Payers Association NPC
v Eskom Holdings SOC Ltd 2020 JOL 48273 (GP) (High Court judgment) at para 51.4.2.
UNTERHALTER AJ
5
[6] In both applications, only Eskom and the Associations filed papers before
this Court.
The origins of the case
[7] Eskom supplies bulk electricity, under contract, to the Lekwa and Ngwathe
Municipalities (municipalities). The contracts concluded between Eskom and the
municipalities for the supply of electricity obliged Eskom to supply electri city up to
each municipality’s Notified Maximu m D emand (NMD). The NMD for the
Ngwathe Municipality was agreed in 2008. For the Lekwa Municipality, an increased
NMD was agreed to in 2010. For extended periods since these agreements were struck,
Eskom supplied electricity to the municipalities in excess of their NMD.
[8] In July 2020, Eskom applied what it styled “rotational load reduction ” to the
supply of bulk electricity to the municipalities. In effect, Eskom restricted the supply
of electricity to the municipalities to accord with the NMD of each municipality. There
was some dispute as to the reasons for Eskom’s actions. Certainly it is that the
municipalities had failed to pay Eskom for all the electricity supplied to them. Indeed,
the municipalities are severely dysfunctional and in serial default of their constitutional
and statutory obligations towards both Eskom and the residents . Despite owing a
constitutional duty to the residents to supply municipal services as provided in
sections 1523 and 153(a)4 of the Constitution; and ow ing statutory duties to Eskom in
3 Section 152 states:
“(1) The objects of local government are—
(a) to provide democratic and accountable government for local communities ;
(b) to ensure the provision of services to communities in a sustainable manner ;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment; and
(e) to encourage the involvement of communities and community organisations
in the matters of local government.
(2) A municipality must strive, within its financial and administrative capacity, to achieve
the objects set out in subsection (1).” (Emphasis added.)
4 In terms of section 153(a), “[a] municipality must structure and manage its administration and budgeting and
planning processes to give priority to the basic needs of the community, and to promote the social and economic
development of the community”.
UNTERHALTER AJ
6
terms of the Electricity Regulation Act5 (ERA), the municipalities have failed dismally
and have shown gross incompetence in the execution of their duties. Eskom announced
that its restrictions of supply were necessitated by the failure of the municipalities to
eliminate illegal connections; their inability to recover payment for electricity supplied;
and their failure to provide the infrastructure required to support the supply of electricity
above the NMD, and thus secure the integrity of the national grid.
[9] The restriction of supply to the municipalities required the municipalities, in turn,
to reduce the supply of electricity to their customers. Residents of the municipalities,
who conducted their businesses in the tow ns administered by the municipalities, were
moved to bring legal proceedings in the High Court. Their complaint was this. They
were paying the municipalities for the electricity they received and required to run their
businesses. If the municipalities had failed to honour their contractual obligations to
Eskom, that did not permit Eskom to restrict the supply of electricity, as it had done.
The consequences of Eskom’s actions were dire. In addition to the harm caused to
businesses from rotational disruptions, the effect upon essential services in the two
towns was described as “ an unfolding huma n and environmental catastrophe”. I t
compromised drinking water supply and sewage disposal; adversely affected hospitals
and old age homes; and caused the pollution of the Vaal River from untreated waste.
[10] The residents, acting th rough the Associations, brought urgent applications
before the High Court. The Associations sought, in essence, interim relief to secure the
restoration of the supply of electricity that Eskom had provided to the municipalities
prior to the restrictions it had imposed. This interim relief was to operate pending the
final adjudication of a judicial review to set aside Eskom’s decision to limit the bulk
supply of electricity to the municipalities to the level of their NMD.
5 4 of 2006.
UNTERHALTER AJ
7
The salient facts
[11] On 29 September 2008, Eskom and the Ngwathe Municipality concluded a bulk
electricity supply agreement. In terms of the agreement, Eskom would supply
24 300 kVA to the municipality. Clause 11.3 of the agreement stated that if an increase
of the NMD is required, the municipality must give adequate notice to Eskom. An
increase shall be subject to the terms and conditions agreed up on by the parties in
writing and, in the absence of such an agreement, no increase in the NMD sh all be
implemented. The terms and conditions of the increase must take into account the
additional capital expenditure to be incurred by Eskom and the additional capacity
required by Eskom to meet the demand.
[12] In January 1981, Esc om (the Electricity Suppl y Commission , Eskom’s
predecessor, established under the Electricity Act )6 and Lekwa Municipality entered
into a bulk electricity supply agreement. In terms of the agreement, Eskom would
supply 22 260 kVA to the municipality . In 2010, the bulk electrici ty supply was
increased to 55 000 kVA. Similar to the agreement concluded between Eskom and
Ngwathe Municipality, any increase of the NMD require d adequate notice to Eskom.
Additionally, no increase c ould be implemented without an agreement between the
parties.
[13] Since 2008 and 2010, no increase in the NMD was agreed between Eskom and
the municipalities . However, the consumption of and need for electricity by the
residents of the municipalities exceeded the agreed NMD. Eskom supplied electricity
in excess of the contracted NMD to both municipalities for an extended period of time.
Eskom charged monthly penalties to the municipalities each time they exceeded t heir
agreed NMD. This was done in terms of the NMD and Maximum Export Capac ity
(MEC) Rules (NERSA Rules), which state:
6 42 of 1922.
UNTERHALTER AJ
8
“When customers exceed their monthly NMDs and/or MEC, a network access charge
(NCC) is imposed for the excess. This is due to the fact [that] a customer that exceeds
the NMD/MEC does so without permission. They use capacity that is not allocated to
their point of delivery, put the network under strain, hamper the ability to do proper
network and capacity planning. Moreover they place the network and other customers’
electricity supply and the licensee at risk.”7
[14] The municipalities applied to increase their NMD supply levels to meet the
additional electricity demand , but Eskom refused to agree to these increases .
Seemingly, because the municipalities had defaulted on their payment obligations.
[15] In February 20 20, Eskom decided to reduce bulk electricity supply to the
municipalities to the NMD levels set out in the supply agreements (the reduction
decision). This meant that it would no longer supply electricity to the municipalities in
excess of the agreed NMD levels. Eskom informed the municipalities of the reduction
decision but did not inform the residents. The decision was implemented in 2020 and
resulted in rotational load shedding in the municipalities. This had a significant impact
on essential services such as water supply and the functioning of sewage works. Once
the electricity supply was disrupted, the water treatment plants came to a standstill. As
a result, taps ran dry and in dustrial and commercial activities , such as the poultry
industry and abattoirs in or close to the affected towns, ceased functioning. Sewage
also started spilling into the streets of the affected towns and into the Vaal River.
[16] Efforts on the part of the Ngwathe and Lekwa residents to engage with Eskom,
the municipalities and Members of the Executive in the ir respective provinces were
unsuccessful. Furthermore, negotiations between Eskom and the two municipalities to
increase their contractually agreed NMD supply levels y ielded no results. Thus, the
Ngwathe and Lekwa residents, through the Vaal River Development Association on
behalf of the Ngwathe residents, and the Lekwa Ratepayers Association on behalf of
the Lekwa residents, approached the High Court for urgent relief.
7 See rule 2 of the NERSA Rules.
UNTERHALTER AJ
9
Litigation history
High Court
[17] Before the High Court, the Associations sought interim orders , pending the
determination of review proceedings . The interim relief sought was, inter alia, to
compel Eskom, as the sole supplier of electricity to the munici palities, to restore the
supply of electricity to the levels enjoyed before the implementation of the reduction
decision.8
[18] Eskom contended that it had no obligation to the residents of the municipalities;9
that it was entitled to enforce the contracts concluded with the municipalities ; and, if
the residents were adversely affected, they should seek relief from the municipalities.10
Eskom further submitted that this case differed from previous matters in which the
supply of electricity had been terminated ; here it was reduced in confor mity with the
supply agreements.11
[19] On behalf of the residents , it was argued that the reduction decision constituted
administrative action and that Eskom had a constitutional obligation to the residents of
the municipalities. 12 It was also submitted that Eskom’s decision resulted in
catastrophic humanitarian and environmental consequences. The residents sought an
interim interdict prohibiting Eskom from implementing its decis ion to reduce the bulk
electricity supply to the municipalities.13
[20] The High Court held the view that the applications were urgent and granted the
interim interdicts.
8 High Court judgment above n 2 at para 2.
9 Id at para 28.
10 Id at para 29.
11 Id at para 49.
12 Id at para 28.
13 Id at para 30.
UNTERHALTER AJ
10
[21] First, it determined whether the residents had a prima facie right, though open to
some doubt, notwithstanding that there was no contractual relationship between the
residents of the municipalities and Eskom.14
[22] The High Court held that , although the right to electricity is not specifically
provided for in the Bill of Rig hts, the supply of electricity is inextricably intertwined
with the rig hts to dignity, life , housing, healthcare, food, water and social security. 15
With reference to Grootboom,16 the Court held:
“While there is no specific reference in Grootboom to the provision of access to and
supply of electricity, it is self -evident that the supply of electricity is the cornerstone
upon which all the realisation of other rights is based.”17
[23] The High Court found that although the residents were not parties to the
agreements concluded between Eskom and the municipalities, Eskom’s enforcement of
those agreements infringed the rights of the residents.18 It found that Eskom’s reliance
on its contractual relationships with the municipalities did not detract from the fact that
it is a state-owned enterprise that—
“exists with the benefit of an ostensible monopoly on the supply of electricity, not only
for the purpose of generating income for the state but also for the promotion of the
rights of individual citizens.”19
14 Id at para 32.
15 Id at para 35.
16 Government of the Republic of South Africa v Grootboom [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11)
BCLR 1169 (CC).
17 High Court judgment above n 2 at para 37, citing id at para 34.
18 High Court judgment above n 2 at para 39.
19 Id at para 38.
UNTERHALTER AJ
11
[24] Thus, it held, the residents have a right to the supp ly of electricity and therefore
a prima facie right had been established.20
[25] The High Court went on to hold that enjoying a clear right to be supplied with
electricity requires the supply of sufficient electricity “to meet the basic threshold of the
individual rights in the Bill of Rights”. To find otherwise would render those rights and
the obligation of state organs, such as Eskom, to fulfil those rights nugatory.21
[26] Second, the High Court found that t he limited electrical supply had an adverse
effect on all basic municipal services, most notably in respect of sewerage reticulation
and the provision of clean water. The harm suffered by the residents was not contested
by Eskom.22
[27] Third, the High Court considered that for an extended period of time before the
implementation of the NMD limitations, Eskom provided both municipalities with
electricity in excess of the NMD. 23 It held that the municipalities’ debt levels and the
extent of the time during which Eskom permitted them to exceed the NMD whil e
imposing penalties for doing so, militated against any prejudice that Eskom may suffer.
The residents, however, were faced with prejudice that could not be measured in
monetary terms or even mitigated. The balance of convenience thus favoured the
residents.24 Fourth, the Court held that Eskom enjoys a monopoly over the supply of
bulk electricity.
20 Id at para 40.
21 Id.
22 Id at para 41.
23 Id at para 42.
24 Id at para 45.
UNTERHALTER AJ
12
[28] The residents thus had no alternative other than to approach the High Court for
relief.25 The Court accordingly granted the order as set out in para graphs 5126 and 52
of the judgment.27 In summary, Eskom was ordered to increase or, alternatively, restore
25 Id at para 47.
26 Para 51 of the High Court judgment above n 2 states the following:
“In the circumstances it is ordered:
In Case number 31813/20
51.1 The First Respondent, Eskom, is to increase, alternatively restore the maximum
electricity load supply to Parys and Vredefort to the level supplied prior to Eskom’s
recent implementation of the current limited 95% of 21 MVA to Parys and 4.3 MVA to
Vredefort; thus interdicting and proh ibiting Eskom from implementing its decision to
limit electricity supply to Ngwathe per Parys and Vredefort to the Notified Maximum
Demand (“NMD”) of 95% of 21 MVA in Parys and 4.3 MVA in Vredefort pending an
agreement acceptable to Eskom on the settlement of arrears owed by the
Second Respondent (“the decision”);
51.2 The First and Second Respondents jointly and severally are ordered to, within [five] days
of the order, alternatively a time period set by the Court, restore the bulk electricity
supply equip ment to enable both transformers at Parys to be available and to render
sufficient capacity at Parys, alternatively to install infrastructure to permit and allow
electricity supply to Parys to the levels experienced prior to recent limitation associated
with the NMD of 21 MVA for Parys following upon implementation of the decision;
51.3 The First Respondent is directed to provide and assist the Second Respondent to enable
ringfeed of supply to Parys, to serve as back -up and to serve as a source in cases of
emergency ensuring that adequate alternative capacity is available at the aforesaid towns.
51.4 The order in paragraphs 51.1 to 51.3 above will operate as an interim interdict pending:
51.4.1 the finalization of this application; and
51.4.2 the final adjudication of the Applicant’s application for a review of the
First Respondent’s decision(s), in terms of the Promotion of Administrative
Justice Act No 3 of 2000 (“PAJA”) and/or legality review to set aside the
First Respondent’s decision(s) to implement the limit to the bulk electricity
supply to the Second Respondent per Parys and Vredefort;
51.4.3 the relief in paragraphs 51.1 to 51.3 above will lapse if the Applicant fails to
institute the aforesaid review application on or before 30 October 2020 .
51.5 The First and Second Respondents, jointly and severally, the one paying the other to be
absolved, are ordered to pay the costs of this application which include the reserved costs
of 6 August 2020 on the scale as between attorney and client, such costs to also include
the costs consequent upon the employment of two counsel.”
27 Para 52 of the High Court judgment above n 2 states the following:
“In Case number 35054/20
52.1 The First Respondent, Eskom, is to increase, alternatively restore the maximu m
electricity load supply to Lekwa Local Municipality (“Lekwa”) per the towns of
Standerton, Sakhile, Meyerville and surrounds to the level supplied prior to Eskom’s
implementation of the current limited 55 MVA, being at least 67 MVA; thus interdicting
and prohibiting Eskom from continuing with implementation of its decision to limit
electricity supply to Lekwa to the Notified Maximum Demand (“NMD”) of 55 MVA
(“the decision”);
UNTERHALTER AJ
13
the maximum electricity load supply to the level supplied prior to the reduction
decision; thus interdicting and prohibiting Eskom from implementing its decision to
limit electricity supply. The order of the High Court was to operate as an
interim interdict pending final adjudication of the residents’ application for a review of
Eskom’s reduction decision in terms of the Promotion of Administrative Justice Act 28
(PAJA) and/or legality.
[29] The High Court also noted that—
“[f]or so long as the NMD penalties and interest charges which Eskom levies on the
municipalities exceed the cost of actual consumpt ion, paying consumers will be
saddled with hopelessly insolvent municipalities that have no prospect whatsoever,
without outside intervention or assistance, of paying their outstanding debt to Eskom.
The result is a catch 22 situation for the applicants and consumers in the municipalities
and Eskom has become the proverbial cholesterol in the municipal service delivery
breakdown in Ngwathe and Lekwa . They simply have no other recourse than to
approach the court.”29 (Emphasis added.)
[30] A punitive costs order was granted against Eskom.30
52.2 Interdicting the Second Respondent from implementing rotational load shedding
permitted on a limitation linked to NMD of 55 MVA to Standerton, Sakhile, Meyerville
and surrounds;
52.3 The order in paragraphs 52.1 to 52.2 above will operate as an interim int erdict pending:
52.3.1 the finalization of this application; and
52.3.2 the final adjudication of the Applicant’s application for a review of the
First Respondent’s decision(s), in terms of the Promotion of Administrative
Justice Act No 3 of 2000 (“PAJA”) and/or legality review to set aside the
First Respondent’s decision(s) to implement the limit to the bulk electricity
supply to the Second Respondent to the level of the NMD set or agreed to as
55 MVA.
52.3.3 the relief in paragraphs 52.1 to 52.2 above wi ll lapse if the Applicant fails to
institute the aforesaid review application on or before 30 October 2020.
52.4 The First and Second Respondents, jointly and severally, the one paying the other to be
absolved, are ordered to pay the costs of this applicat ion which include the reserved costs
of 21 August 2020 on the scale as between attorney and client, such costs to also include
the costs consequent upon the employment of two counsel.”
28 3 of 2000.
29 High Court judgment above n 2 at para 47.
30 Id at para 49.
UNTERHALTER AJ
14
Supreme Court of Appeal
[31] The question for determination on appeal wa s whether the High Court was
correct in its finding that the residents had established a prima facie right to interim
interdictory relief .31 It was common ground that the matter was one in which the
interests of justice demanded that the interim interdicts granted by the High Court were
appealable. The Supreme Court of Appeal held that the appeal raised an issue of special
public importance.32
[32] The Supreme Court of Appeal referred (with approval) to Resilient High Court33
where the High Court found that although Eskom has the power to interrupt the supply
of electricity for non -payment in terms of section 21(5) of ERA, given the nature and
source of this power, its exercise amounted to administrative action for the purposes of
section 33 of the Constitution and PAJA. The exercise of the power is constrained, if
not by the requirement o f reasonableness, then certainly under the standard of
rationality.34 In Resilient High Court, in light of the catastrophic socio -economic and
humanitarian conseq uences that were to follow, the High Court found that Eskom’s
decision to incrementally reduce electricity supply with the ultimate goal of terminating
supply altogether, was not rationally connected to the purpose for which the power to
do so was given.35
[33] The Supreme Court of Appeal also referred, with approval, to its decision in
Resilient SCA.36 In Resilient SCA, the Supreme Court of Appeal held that electricity is
a component of the basic services that municipalities are constitutionally obliged to
31 Supreme Court of Appeal judgment above n 1 at para 21.
32 Id at para 6.
33 Resilient Properties (Pty) Ltd v Eskom Holdings SOC Ltd 2019 (2) SA 577 (GJ).
34 Id at para 74.
35 Id at paras 77-80.
36 Eskom Holdings SOC Ltd v Resilient Properties (Pty) Ltd; [2020] ZASCA 185; 2021 (3) SA 47 (SCA).
UNTERHALTER AJ
15
provide to their residents. 37 Thus, before Eskom decide d to invoke its powers under
section 21(5), it was required to take into account its constitutional obligations as an
organ of state. The Supreme Court of Appeal held further that Eskom, as an organ of
state, supplies electricity to local spheres of government to secu re the economic and
social well-being of the people. This brought the relationship within the purview of the
Intergovernmental Relations Framework Act 38 (IRFA). In terms of IRFA, 39 organs of
state are constitutionally and statutorily required to make reasonable efforts in good
faith to settle intergovernmental disputes.40
[34] The Supreme Court of Appeal , in the present matter, held that the attempt by
Eskom to distinguish the findings in Resilient SCA was artificial. The
Supreme Court of Appeal, adopting the reasoning in Resilient SCA, held that Eskom
was not constitutionally and statutorily permitted to unilaterally reduce the bulk
electricity supply to the municipalities without first making every reason able effort to
settle its intergovernmental disputes with the municipalities and other spheres of
government.
[35] The Supreme Court of Appeal found that all the requirements for granting
interim interdictory relief had been established and that the High Court had correctly
granted the interim interdicts.41
37 Id at paras 29-34.
38 13 of 2005.
39 See section 41 of IRFA which states the following:
“(1) All organs of state must make every reasonable effort—
(a) to avoid intergovernmental disputes when exerc ising their statutory powers
or performing their statutory functions; and
(b) to settle intergovernmental disputes without resorting to judicial proceedings.
(2) Any formal agreement between two or more organs of state in different governments
regulating t he exercise of statutory powers or performance of statutory functions,
including any implementation protocol or agency agreement, must include
dispute-settlement mechanisms or procedures that are appropriate to the nature of the
agreement and the matters that are likely to become the subject of a dispute.”
40 Supreme Court of Appeal judgment above n 1 at para 24.
41 Id at para 32.
UNTERHALTER AJ
16
Submissions before this Court
Applicant’s submissions
[36] Eskom submits that the key issues requiring determination by this Court are—
(a) whether the residents are entitled to an order compelling Eskom to supply
them with sufficient electricity;
(b) whether the residents are entitled to sufficient electricity and , if so, who
determines the appropriate NMD to be supplied; and
(c) whether a dispute concerning NMD ought to be resolved in terms of ERA
or IRFA.
Urgency and jurisdiction
[37] Eskom contends that the interlocutory order compels it to supply electricity that
it cannot generate. According to Eskom, it must consider the national grid and its lack
of capacity to comply with such a broad and drastic order. Furthermore, Eskom submits
that the order will result in its financial ruin, which would ultimately be to the detriment
of the whole country and will not be in the interests of justice.
[38] Eskom argues that the question whether IRFA takes precedence over ERA
engages a constitutional issue. It argues that t he issue pertaining to the NMD raises a
novel point of law and refers to the Supreme Court of Appeal’s finding that the issues
in this matter are of “special public importance”.
Grounds of appeal
[39] Eskom submits that an order to compel it to supply sufficient electricity to the
municipalities is at odds with this Court’s decision in Mazibuko42 where it was held that
section 26(2) of the Constitution stipulates that the state must take reasonable legislative
42 Mazibuko v City of Johannesburg [2009] ZACC 28 ; 2010 (4) S A 1 (CC); 2010 (3) BCLR 239 (CC) at
paras 48-9.
UNTERHALTER AJ
17
and other measures progressively to realise the right of access to adequate housing
within its available resources. Eskom also relies on Treatment Action Campaign.43 It
says the reasoning in these decisions does not support the conclusion that Eskom is
compelled to supply a particular amount of electricity. Additionally, so Eskom submits,
a dispute regarding the amount of electricity to be supplied must be decided by NERSA
as the specialist regulator under ERA.
[40] Eskom submits that in some instances the NMD was exceeded as a result of
illegal connections, and it has no obligation to supply electricity to meet illegal demand.
Eskom relies on Sidoyi44 to contend that if there is no underlying lawful basis to supply,
such as an electricity supply agreement, Eskom cannot be compelled to supply
electricity to that customer.
[41] Eskom contends that the High Court and Supreme Court of Appeal failed to
consider that it does not have excess electricity and that supplying electricity above the
contracted NMD levels puts a strain on the infrastructure and Eskom’s network. Eskom
further submits that the lower c ourts also failed to distinguish between the different
roles that Eskom and municipalities play in supplying electricity. The municipalities
have been absolved from their constitutional obligations. Relying upon New National
Party,45 Eskom contends that fault must lie with the municipalities for failing to carry
out their duties. Eskom further submits that the lower courts failed to take into account
that any increase to NMD levels must be in accordan ce with the NMD Rules and a
dispute pertaining to NMD must be decided in accordance with ERA, not IRFA.
[42] In respect of ERA, Eskom submits that section 30 of ERA provides an internal
remedy to resolve such disputes.46 Thus, the internal remedies provided by ERA should
43 Minister of Health v Treatment Action Campaign (No 2) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10)
BCLR 1033 (CC) at paras 49-50.
44 Eskom Holdings SOC Ltd v Sidoyi [2019] ZASCA 65; 2019 JDR 0963 (SCA).
45 New National Party of South Africa v Government of the Republic of South Africa [1999] ZACC 5; 1999 (3)
SA 191 (CC); 1999 (5) BCLR 489 (CC) at paras 22-3.
46 Section 30, headed “Resolution of disputes by Regulator”, states the following:
UNTERHALTER AJ
18
have been utilised before invoking PAJA and approaching the courts. Eskom submits
that in terms of section 7(2)(a) of P AJA,47 the High Court had no jurisdiction to hear
the matter prior to the internal remedies of ERA having been exhausted. According to
Eskom, NERSA, as the specialist regulator , has the necessary expertise and exclusive
jurisdiction to resolve a dispute p ertaining to a complex issue such as NMD supply.
Eskom relies on Bato Star ,48 where this Court enunciated the import of judicial
deference to admini strative agencies such as NERSA .49 Eskom also referred to
Koyabe,50 where the failure to exhaust internal remedies proved fatal to a party’s review
under PAJA.
[43] Finally, Eskom submits that interruptions resulting from a municipalit y’s poor
planning differ from interruptions in terms of section 21(5) ; because in the former ,
Eskom is still supplying ele ctricity, albeit strictly in accordance with the contracted
NMD. According to Eskom, t hese are legitimate interruptions that fall outside the
purview of Resilient SCA, where the interruptions occurred with the aim of terminating
“(1) The Regulator must, in relation to any dispute arising out of this Act—
(a) if it is a dispute between licensees, act as mediator if so requested by both
parties to the dispute;
(b) if it is a dispute between a customer or end user on the one hand and a licensee,
registered person, a person who trades, generates, transmits, or distributes
electricity on the other hand, settle that dispute by such means and on such
terms as the Regulator thinks fit.
(2) The Regulator may appoint a suitable person to act as mediator on its behalf and any
action or decision of a person so appointed is deemed to be an action by or decision of
the Regulator.
(3) The Minister must prescribe the procedure to be followed in the mediation and the fees
to be paid.
(4) The mediation or arbitration in terms of this section is done at the request of the parties
to the dispute and no decision of the Regulator or the person contemplated in
subsection (2), taken in the course of the mediation process, m ust be regarded as a
decision contemplated in section 10(3) or (4) of the National Energy Regulator Act.”
(Emphasis added.)
47 Section 7(2)(a) states that “[s]ubject to paragraph (c), no court or tribunal shall review an administrative action
in terms of this Act unless any internal remedy provided for in any other law has first been exhausted ”.
48 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism [2004] ZACC 15; 2004 (4) SA
490 (CC); 2004 (7) BCLR 687 (CC).
49 Id at para 48.
50 Koyabe v Minister for Home Affairs [2009] ZACC 23; 2010 (4) SA 327 (CC); 2009 (12) BCLR 1192 (CC).
UNTERHALTER AJ
19
electricity supply. In th e present matter, Eskom continues to supply electricity to the
municipalities.
The Associations’ joint submissions
Jurisdiction
[44] The Associations submit that Eskom has not raised a constitutional issue or an
arguable point of law of general public import ance outside of the law settled in
Resilient SCA. They also submit that Eskom does not raise a dispute between organs
of state requiring a decision by this Court. Thus, this Court’s jurisdiction is not engaged.
As to Eskom’s submission that the High Court and the Supreme Court of Appeal failed
to consider the municipalities’ payment obligations, this cannot be entertained absent a
counter-application by Eskom against the municipalities.
Leave to appeal
[45] The Associations contend that before the Supreme Court of Appeal, the interests
of justice demanded that the interim interdict was appealable due to the issue of special
public interest, namely whether the residents had established a prima facie right to be
supplied with a specified amount of electricity. The Associations submit that it is not
in the interests of justice to grant leave to appeal to this Court, because there are no
conflicting judgments in respect of the issues raised by Eskom and all relevant
principles that have already been established in Resilient SCA.
[46] The Associations submit that there are no material differences between the
present case and Resilient SCA. There, Eskom reduced electricity supply to the
municipalities to obtain payment. That is the case in this instance as well. In
Resilient SCA, Eskom relied on a contractual right to interrupt electricity supply in the
event of non-payment. Here, Eskom relies on the contractual right relating to the NMD
to reduce supply. The Associations contend that the same legal framework is applicable
and the effect of both decisions (to interrupt or reduce electricity supply) is the same,
namely catastrophic consequences for the residents.
UNTERHALTER AJ
20
[47] The Associations contend that Eskom cannot reduce or interrupt the supply of
electricity by relying on a contractual right it has against a municipality , without
engaging with the affected residents. They rely on this Court’s decision in Joseph,51
where this Court held that a municipal service cannot be denied to a citizen because of
a municipality’s outstanding debts.52
[48] The Associations contest Eskom’s reliance on its contracts to justify the
reduction decision because, while the supply agreements subsist between state organs,
the agreements impact the residents. The residents do not seek to enforce contractual
rights, but instead seek to enforce their public law rights because Eskom is an organ of
state. Therefore, its decisions constitute administrative action and are reviewable under
PAJA.
[49] The Associations also submit that Eskom has created an impossible situation
where it knows that the municipalities’ electricity demands are much higher than the
contracted NMD. It has been supplying electricity to the municipalities in excess of the
contracted NMD over an extended period of time; yet it refuses to revise the supply
agreements to make provision for the increased demand.
[50] In respect of Eskom’s submission that this matter must be resolved by NE RSA,
the Associations submit that it was incumbent on Eskom to refer the dispute to NERSA
but it failed to do so.
[51] Finally, the Associations submit that the question of whether they have the right
to sufficient electricity, as posited by Eskom before this Court , was never an issue
before the courts below. The only issue was Eskom’s reduction of supply to outdated
51 Joseph v City of Johannesburg [2009] ZACC 30; 2010 (4) SA 55 (CC); 2010 (3) BCLR 212 (CC).
52 Id at para 53.
UNTERHALTER AJ
21
NMD levels without following due process . Any dispute regarding payment and
increasing the NMD levels must be resolved by the relevant intergovernmental players.
Assessment
[52] The following issues require our consideration. First, does this Court enjoy
jurisdiction to entertain this application? Second, if so, should we grant leave to appeal?
Third, if we grant leave to appeal, was the Supreme Court of Appeal correct to dismiss
Eskom’s appeal and affirm the interim relief ordered by the High Court?
Jurisdiction and leave to appeal
[53] There can be n o doubt that this appeal raises a constitutional issue. The
interim relief granted to the residents is predicated upon their prima facie right to seek
judicial review of Eskom’s power to restrict the supply of electricity to the
municipalities. A review brought under s ection 6 of PAJA gives effect to the right to
just administrative action in the Constitution. Central to the review are two issues.
First, does Eskom owe constitutional or statutory duties to the residents of the
municipalities to maintain the supply of electricity that it made available in the past ?
Second, may Eskom reduce the supply of electricity to the NMD agreed with the
municipalities without taking reasonable measures to settle the intergovernmental
disputes affecting that supply, pursuant to the Constitution53 and IRFA?
[54] Eskom provides the great majority of the country’s electricity. It is a near
monopoly. Electricity is essential to the social and economic well-being of the country
and its people. What constitutional and statutory duties Eskom o wes and to whom are
plainly constitutional matters of importance. Our jurisdiction is thus engaged in terms
of section 167(3)(b) of the Constitution.
53 Section 41 of the Constitut ion sets out the principles of co -operative government and intergovernmental
relations.
UNTERHALTER AJ
22
[55] Whether we should grant leave to appeal on an urgent basis is a question of what
the capacious considerations of the interests of justice require. It will be a rare case in
which an application for leave to appeal to this Court will be granted where it concerns
an order for interim relief that has already enjoyed the attention of the
Supreme Court of Appeal. In OUTA54 and Afriforum,55 this Court set out what the
interests of justice entail when an application for leave to appeal is brought to appeal an
interim order. That an interim order is not usually of final effect and does not dispose
of a substantial portion of the relief claimed are relevant matters to weigh, but they are
not decisive. What is salient is the intrusion of the interim or der upon the exercise of
public powers that takes place until the final adjudication of the review.
[56] In the present matter, we are faced with the following problem. The
municipalities have failed to discharge their constitutional and statutory duties. Th eir
failure causes serious harm to the residents of the towns they are required to serve.
Residents who pay for their electricity suffer shortages of electricity . This damages
their businesses and cause s widespread civic degradation. The municipalities are in
serial default of their obligations to pay Eskom for the electricity supplied to them.
Furthermore, Eskom complains that the municipalities have failed to terminate illegal
connections; nor have th ey invested in the infrastructure required to maintain the grid
and support the supply of electricity that the residents require. Hence Eskom has
reduced the supply of electricity to the municipalities.
[57] Faced with permutations of this problem, courts hav e provided an answer that
holds Eskom to the maintenance of the supply of electricity. Both in Resilient SCA and
in the present case, the Supreme Court of Appeal held that Eskom cannot terminate or
reduce its supply of electricity to defaulting municipali ties, unless it makes reasonable
efforts first to settle its intergovernmental disputes under the Constitution and IRFA.
The duties of Eskom that have been found to support this decision require careful
54 National Treasury v Opposition to Urban Tolling Alliance [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012 (11)
BCLR 1148 (CC) at paras 22-30.
55 Tshwane City v Afriforum [2016] ZACC 19; 2016 (6) SA 279 (CC); 2016 (9) BCLR 1133 (CC) at paras 40-3.
UNTERHALTER AJ
23
consideration. The Supreme Court of Appeal considered Resilient SCA to be
dispositive. Whether that is so requires the consideration of this Court . Furthermore,
given the widespread disarray that has assailed a great many municipalities throughout
the country, there is every likelihood that resi dents in these municipalities will secure
interim relief to hold Eskom to supply electricity, as they have in the past, should Eskom
attempt to terminate or reduce supply to municipalities in default. This is a systemic
issue of great importance that requ ires an authoritative determination by this Court.
Such a determination will have significant consequences for residents, municipalities,
other spheres of government, and of course Eskom itself.
[58] I find that it is in the interests of justice that leave to appeal should be granted
and that the appeal was warrantably brought on an urgent basis.
On interim relief
[59] To obtain the interim relief secured from the High Court, the residents, who had
paid for electricity and would continue to do so, were required to show that they enjoyed
a prima facie right, though open to some doubt. The residents contended in their
founding affidavits that they, or at least those that pay the municipalities for electricity,
have a rig ht to the supply of electricity from Eskom. According to the residents, t he
supply of electricity is the means by which other fundamental rights are reali sed, such
as the right to water, education and a healthy environment. The reduction of electricity
supply by Eskom interferes with the enjoyment of these rights, and it prevents the
municipalities from discharging their constitutional obligations to the residents.
[60] In both applications br ought by the Associations, the n otices of motion sought
interim relief pending “the final adjudication of the applicants’ application for a review
of the first respondent’s ( Eskom’s) decision(s) in terms of the Promotion of
Administrative Justice Act No 3 of 2000”. The founding affidavits referenced a number
of cases in which interim orders were granted against Eskom in like circumstances, and
then reproduce d and rel ied upon passages in Sabie Chamber of Commerce and
UNTERHALTER AJ
24
Resilient.56 There, the North Gauteng High Court (per Hughes J) reviewed and set aside
the decisions of Eskom to interrupt the supply of electricity . It did so on the basis of
the failure by Eskom and the municipalities to resolve their disputes by recourse to
section 41(3) of the Constitution.
[61] I draw attention to the pleaded case of the Associations for the following reasons.
First, the interim relief that was sought was an order pending the final determination of
the Associations’ judicial review of Eskom’s reduction decisions. Second, the
Associations referenced no rights, save those invok ed to bring under review Eskom’s
reduction decision. Third, I have identified the rights relied upon by the residents as
the basis upon which the Associations contend that the reduction decision is unlawful
and hence reviewable. The more expansive account of the rights of the residents that
are said to have been compromised by the reduction decision, taken up in the reasoning
of the High Court, and by way of submission before this Court, is not borne out by the
pleaded case. This is of no small significance. Eskom was entitled to know the case it
had to meet and, in particular, the rights claimed by the residents to give rise to a duty
owed by Eskom to supply them with electricity.
[62] Some c larity is also required as to the showing that the Associations were
required to make in order to secure the interim relief that they sought. I engage upon
this matter because the judgment of Madlanga J appears to understand an application
for interim rel ief, pending a judicial review, to engage an enquiry distinct from the
prospects of success of the proposed judicial review. That is not so. When a person
contends that their rights have been adversely affected by unlawful administrative
action, they may bring that action under judicial review to have it set aside. That is
what the Associations say they will seek by way of final relief.
[63] What prima facie right then, must the Associations establish to secure
interim relief pending the determination of the ir review? It is a prima facie right to
56 Sabie Chamber of Commerce and Tourism v Thaba Chweu Local Municipality; Resilient Properties Proprietary
Limited v Eskom Holdings SOC Ltd [2019] ZAGPPHC 112.
UNTERHALTER AJ
25
review and set aside the reduction decisions made by Eskom. The grounds upon which
that review will be brought are two -fold. First, that the residents have a right to the
supply of electricity from Eskom and hence the reduction decisions are unlawful.
Second, that Eskom has breached its constitutional and statutory duties to resolve its
disputes with the municipalities.
[64] A very long line of cases, stretching back to the authoritative pronouncement of
our modern law in Setlogelo,57 has made it plain that a prima facie right, though open
to some doubt, is the standard used to assess the applicant’s prospects of success in
obtaining final relief. The enqui ry is of necessity provisional because the available
evidence is usually incomplete, untested under cross -examination (where there are
disputes of fact), and the case may yet be more fully developed.
[65] What the standard requires has given rise to no small m easure of difference.
According to Webster v Mitchell ,58 as qualified in Gool,59 the test is whether the
applicant has furnished proof which , if uncontradicted at trial (here in the review) ,
would entitle the applicant to final relief. The Court will then consider the case of the
respondent to decide whether it casts serious doubt on the case of the applicant. If it
does, the standard is not met. In Ferreira,60 a majority of a Full Court considered this
test to be too exacting. It held that the prospects of success of the claim for the principal
relief, albeit weak, may nevertheless suffice. This is so because other requirements for
the grant of an interim interdict may be strongly grounded and hence compensate for
the weakness as to prospects. This, it was thought better chimed with the holding in
Eriksen Motors .61 More recently, this Court, in Economic Freedom Fighters 62 held
that—
57 Setlogelo v Setlogelo 1914 AD 221 at 227.
58 Webster v Mitchell 1948 (1) SA 1186 (W) at 1189.
59 Gool v Minister of Justice 1955 (2) SA 682 (C) at 688E-F.
60 Ferreira v Levin 1995 (2) SA 813 (W) at 830-34.
61 Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 686 (A) at 691C-G.
62 Economic Freedom Fighters v Gordhan [2020] ZACC 10; 2020 (6) SA 325 (CC); 2020 (8) BCLR 916 (CC).
UNTERHALTER AJ
26
“before a court may grant an interim interdict, it must be satisfied that the applicant
for an interdict has good prospects of success in the main review. The claim for review
must be based on strong grounds which are likely to succeed. This requires the court
adjudicating the interdict application to peek into the grounds of review raised in the
main review application and assess their strength. It is only if a court is convinced that
the review is likely to succeed that it may appropriately grant the interdic t.”63
(Emphasis added.)
[66] What all of these cases make clear is that to secure interim relief, an applicant
must establish their prospects of success of obtaining final relief to the required
standard. Without that showing, there is no basis upon which a respondent can be
required to endure the strictures of an interim order, pending the final determination of
the case for final relief. And even if the standard is satisfied and the applicant is granted
an interim order, the order is generally subj ect to the following condition. If the
applicant ultimately fails in the main action, they will be liable for the damages that the
respondent may have suffered as a result of the imposition of the interim order.64 This
is a further demonstration of the manifest connection between the grant of interim relief
and the likely outcome of the proceedings that will finally determine the matter.
[67] In sum, the following may be said of this account of our law. First, an application
for interim relief is decided upon a consideration of the applicant’s prospects of success
in obtaining final relief. The prima facie right, though open to some doubt, that must
be established to obtain interim relief is the right th at is the subject of the main action
(or proceedings). In the present case that is the Associations’ right to the judicial review
of Eskom’s reduction decisions. Hence, an application for interim relief is never
decided on some separate consideration of rights unrelated to the claim for final relief.
As I shall show, t he second judgment proceeds without sufficient regard to this
fundamental precept. For this reason, I am in respectful disagreement with its approach.
63 Id at para 42.
64 Hix Networking Technologies CC v System Publishers (Pty) Ltd 1997 (1) SA 391 (SCA) at 403.
UNTERHALTER AJ
27
[68] Second, it is axiomatic that if an a pplicant cannot prove that they have a clear
right, the very nature of satisfying a court that they have a prima facie right, though
open to some doubt, is a provisional judgment. The court that finally determines the
matter will decide whether the right, that the applicant relied upon to secure
interim relief, has been proven on a balance of probabilities so as to secure final relief.
The second judgment cites a passage from the decision of this Court in National
Gambling Board65 to support the proposition that what is before us at this stage is about
what must happen in the interim, what is to be decided by the reviewing court is left
open for that court.
[69] National Gambling Board held that the High Court enjoyed jurisdiction to grant
interim relief, even though the High Court lacked jurisdiction to determine the final
relief because that matter fell into this Court’s exclusive jurisdiction. That holding
followed the position at common law that a court may grant interim relief even though
it lacks jurisdi ction to decide the main dispute. National Gambling Board casts no
doubt on the proposition, dealt with above, that the grant of interim relief requires the
consideration of the prospects of success in the main proceedings. That is so even if
the High Court lacks jurisdiction over those proceedings. In Airoadexpress, the Court
held that it was precisely because the appellant was bound to succeed in its
administrative appeal that the High Court was empowered to grant interim relief. 66
[70] Nor does National Gambling Board hold to the position that the outcome of an
application for interim relief always entails that no final determination of the rights of
the parties can occur. There is an important distinction between what an application for
interim relief seeks and what the court that considers that application may decide.
National Gambling Board references this matter .67 If, in an application for
interim relief, there are no disputes of fact or law, there is no reason why a court should
65 National Gambling Board v Premier, KwaZulu-Natal [2001] ZACC 8; 2002 (2) SA 715 (CC); 2002 (2) BCLR
156 (CC) at para 49.
66 Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation Board, Durban [1986] ZASCA 6; 1986 (2)
SA 663 (A).
67 National Gambling Board above n 65 at para 52.
UNTERHALTER AJ
28
not grant final relief. So too, if the court should find that the application is premised
upon a proposition of law that cannot be sustained, there is no reason why the court
should not decide the question of law and dismiss the application. Of course, where
the court grants the interim relief on the basis that the applicant has shown a prima facie
right, though open to some doubt, the court that decides whether final rel ief should be
granted will not be bound by the prior interim decision.
[71] In the case before us, there are important questions of law that need to be
considered as to whether the residents have a right to the supply of electricity from
Eskom, and hence whether the Associations have prospects of success in the review. It
is for this very reason that the matter falls within our jurisdiction, and it is in the interests
of justice to decide the appeal. If those questions of law are decided against the
residents, then that is dispositive of the matter and the High Court would have erred in
granting the relief that it did. Just as the High Court must dismiss an application for
interim relief if it finds , as a matter of law , that the applicants do not enjoy the ri ghts
they claim, so too this Court may so find on appeal. That the second judgment hold s
otherwise, and does so relying upon National Gambling Board, is an error.
Eskom’s duties and the residents’ rights
[72] The starting point is therefore to determine what duties Eskom has, and to whom
these duties are owed . The Eskom Conversion Act 68 (Conversion Act) converted
Eskom into a public company , incorporated in terms of the Companies Act.69 The
Conversion Act did not privatise Eskom. Upon conversion, the state was Eskom’s sole
shareholder. Its conversion required Eskom and the Minister of Public Enterprises to
enter a Shareholder compact. The Shareholder compact is defined in s ection 1 of the
Conversion Act to mean “the performance agreement to be entered into between Eskom
and the government of the Republic of South Africa ”. In doing so, the Minister was
required to take account of the “developmental role of Eskom ” and “the promotion of
68 13 of 2001.
69 71 of 2008.
UNTERHALTER AJ
29
universal access to, and the provision of, af fordable electricity, taking into account the
cost of electricity, financial sustainability and the competitiveness of Eskom”.70
[73] The Conversion Act is not a charter for the singular pursuit of profit by Eskom
for the benefit of its shareholder. Rather, the point of the Shareholder compact is to
give statutory force to the role of Eskom as a provider of public goods, taking account
of cost, financial sustainability and competitiveness. Eskom is a state-owned enterprise.
Whilst so constituted, the Conversion Act requires the Minister of Public Enterprises to
take account of the development al role of Eskom, under the commercial disciplines
listed in s ection 6(5)(b). The Shareholder compact is enforceable as between Eskom
and its shareholder, the state.
[74] The provision of electricity is an essential resource. Eskom has historically
enjoyed a near monopoly over the generation, transmission and distribution of
electricity in the country. Unsurprisingly, therefore, the electricity industry has been
made subject to extensive regulation. The regulatory framework is to be found in ERA.
ERA empowers NERSA as the independent regulator of this framework.
[75] The essential features of the framework are as follows:
(a) No person may, without a licen ce, operate any generation, transmission
or distribution facility.71
(b) A person may apply to NERSA for a licence.72 NERSA must decide upon
an application for a licen ce and may make any licen ce subject to
conditions relating to defined but broad ly framed areas of regulation .73
Among these are prices and tariffs, performance targets and service
quality; the regulation of a licensee ’s revenue; the obligations of a
licensee to generate, transmit o r distribute electricity; the termination of
70 Section 6(5)(b) of the Conversion Act.
71 Section 7(1) of ERA.
72 Section 10 of ERA.
73 Sections 13 and 14 of ERA.
UNTERHALTER AJ
30
electricity supply to customers and end users; and the classes of customers
and end users to whom electricity may or must be supplied.74
[76] NERSA may also vary, suspend or remove any licen ce condition, and include
any additional licence conditions.75 This may be done on application by a licensee but
also, if necessary, for the purposes of ERA, upon application by an affected party. Thus,
for example, an end user may not only hold Eskom to the conditions of its licen ce, but
if Eskom’s licence conditions fail to give effect to some aspect of supply that affects an
end user, they may seek an amendment to Eskom’s licence.
[77] The scope of N ERSA’s regulatory competence is wide. NERSA may regulate
much of what a firm would otherwise be free to decide if it operated in an unregulated
market. What may be produced, how much may be produced, at what price, to whom
and under what conditions, all fall within the scope of NERSA’s regulatory powers.
[78] NERSA’s powers go further still. It adjudicates contraventions of licen ces.76
NERSA must settle disputes between a customer or end user and a licensee.77 NERSA’s
decisions are, in turn, governed by the National Energy Regulator Act,78 which specifies
how NERSA is to take decisions and provides for rights of appeal and review.79
[79] Furthermore, ERA outlines a number of objects it was created to fulfill. In terms
of section 2 of ERA, the objects of the Act are to—
“(a) achieve the efficient, effective, sustainable and orderly development and
operation of electricity supply infrastructure in South Africa;
74 Id.
75 Section 16 of ERA.
76 Section 18 of ERA.
77 Section 30 of ERA.
78 40 of 2004.
79 Section 10 of the National Energy Regulator Act.
UNTERHALTER AJ
31
(b) ensure that the interests and needs of present and futur e electricity customer s and
end users are safeguarded and met, having regard to the governance, efficiency,
effectiveness and long-term sustainability of the electricity supply industry within the
broader context of economic energy regulation in the Republic;
. . .
(g) facilitate a fair balance between the interests of customers and end users,
licensees, investors in the electricity supply industry and the public.”
[80] The sustainability and efficiency model contemplated in ERA is further
amplified in section 15 which regulates tariffs. In terms of section 15—
“(1) [a] licence condition determined under sectio n 1480 relating to the setting or approval
of prices, charges and tariffs and the regulation of revenues—
(a) must enable an efficient licensee to recover the full cost of its licensed
activities, including a reasonable margin or return;
. . .
(c) must give end users proper information regarding the costs that t heir
consumption imposes on the licensee’s business;
. . .
(2) A licensee may not charge a customer any other tar iff and make use of
provisions in agreements other than that determined or approved by the
Regulator as part of its licensing conditions.”
[81] It is thus evident that any duty imposed on Es kom to provide electricity, cannot
be separated from its fiscal respon sibilities. These fiscal duties are not only aimed at
protecting Eskom as a licensee, but also serve the purpose of protecting it as the nation’s
electricity provider. Of significance is NERSA’s Multi-Year Price Determination
Methodology81 (MYPDM). The MYPDM is developed for the regulation of Eskom’s
required revenues. It forms the basis upon which NERSA evaluate s the price
80 Section 14 of the ERA regulates the conditions of a licence.
81 Section 14(1)(e) of ERA describes the MYPDM as “ the methodology to be used in the determination of rates
and tariffs which must be imposed by licensees”.
UNTERHALTER AJ
32
adjustment applications received from Eskom. It is a cost -of-service based
methodology, with incentives for cost savings and efficient and prudent procurement
by the licensee (Eskom).82 Thus, Eskom is meant to function as a viable licensee.
[82] That, in summary, is the regulatory landscape governing the generation,
transmission and distribution of electricity.
[83] Municipalities have a central role to play in the distribution of electricity. In
Joseph, this Court set out the constitutional and statutory basis of the public duty of a
municipality to provide electricity to its residents.83 Under the provisions of the Local
Government: Municipal Structures Act 84 (Structures Act) , municipalities are
empowered to manage the bulk supply of electricity to end consumers. Municipalities
procure bulk supplies of electricity from Eskom and must then discharge their duties to
supply end consumers.85
[84] ERA recognises the importance of municipalities. It contains provisions that
give effect to the constitutional duty of municipalities to supply electricity to their
residents. In terms of section 27, each municipality is required to exercise its executive
authority to perform a list of stated duties. These duties include: ensuring sustainable
reticulation; progressively ensuring access to at least basic reticulation services through
appropriate investment in electricity infrastructure; providing reticulation services at no
cost or at minimum cost to certain classes of end users within its available resources;
and preparing and implementing relevant plans and budgets.
[85] Under the provisions of ERA, mun icipalities are the customers of Eskom when
they purchase bulk electricity. Those to whom the municipalities, in turn, supply
electricity are end users, under the definition in ERA. The Local Government
82 Id.
83 Joseph above n 51 at paras 34–40.
84 117 of 1998.
85 Section 84(1)(c) of the Structures Act.
UNTERHALTER AJ
33
Municipal Finance Act86 (Municipal Finance Act) provides for the budgetary control of
municipalities, including revenue collection in accordance with the municipal budget;87
treasury oversight of the pricing of bulk electricity and the payments made by
municipalities for bulk ele ctricity;88 and the regulation of proposed price increases by
an organ of state for the supply of bulk electricity to a municipality.89
[86] The following may be said of the regulatory scheme that I have sketched. First,
Eskom is constituted to supply electri city for the country . T he s tate, as its sole
shareholder, may require Eskom to secure public goods , consonant with the
Conversion Act. Eskom is regulated by NERSA under ERA. Among the extensive
powers conferred upon NERSA, it enjoys the power to regulate licensees which would
otherwise enjoy monopoly power. But NERSA also has the competence to implement
national government’s electricity policy framework. That is a further indication that a
licensee such as Eskom may be used to secure public goods. Eskom is also a major
public entity listed in schedule 2 of the Public Finance Management Act 90 (PFMA).
Eskom is thus made subject to the application of chapter 6 of the PFMA , which
regulates the duties of accounting authorities responsible for public monies. It follows
that Eskom does perform public functions in terms of legislation and thus qualifies as
an organ of state under the definition in section 239 of the Constitution.91
86 56 of 2003.
87 Section 54(1)(d)(ii) of the Municipal Finance Act.
88 Section 41(1) of the Municipal Finance Act.
89 Section 42 of the Municipal Finance Act.
90 1 of 1999.
91 In terms of section 239, an “organ of state” means—
“(a) any department of state or administration in the national, provincial or local sphere of
government; or
(b) any other functionary or institution—
(i) exercising a power or performing a function in terms of the Constitution or a
provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any
legislation,
but does not include a court or a judicial officer.”
UNTERHALTER AJ
34
[87] Second, municipalities, as this Court found in Joseph, have constitutional and
statutory duties to procure and pay for bulk electricity and then to supply electricity to
residents. That must be done by the provision of a system of reticulation that serves the
residents, makes provision for the poor, within the resources available to a municipality,
and implements a budget to collect revenue so that the municipality can procure
electricity to supply to its residents.
[88] In fact, so far do a municipality’s powers to collect revenue extend that
this Court, in Rademan,92 confirmed that a municipality may disconnect a resident’s
electricity supply where that resident failed to pay for other municipal services, but still
paid for electricity supply.93 There, this Court held that where a resident, as a customer
of the municipality, contravened the municipality’s conditions of payment, as set out in
the municipal by-laws read with the Local Go vernment: Municipal Systems Act 94
(Systems Act) and the agreement between the parties, then section 21(5)(c) of ERA was
met. Accordingly, a municipality is then entitled to cut off the resident’s electricity
supply. On what basis then can Eskom, an organ of state that does not bear the
responsibility of providing municipal services directly to the residents, be held liable
for the supply of electricity if the conditions of its electricity supply agreements have
been breached?
[89] Third, the relationship s between Eskom , as supplier; the municipalities as
customers; and the residents as end users of electricity, are regulated under ERA. ERA,
as I have observed, gives NERSA extensive powers to do so. Those powers include the
resolution of disputes that end users may have against Eskom.
[90] I reiterate, where do the residents locate the duties that Eskom has to the m that
they may enforce against Eskom? It is not in the contracts for the supply of electricity
that subsist between the municipalities and Eskom. The residents are not parties to
92 Rademan v Moqhaka Local Municipality [2013] ZACC 11; 2013 (4) SA 225 (CC); 2013 (7) BCLR 791 (CC).
93 Id at para 39.
94 32 of 2000.
UNTERHALTER AJ
35
those contracts. Nor do the residents rely upon any contravention by Eskom of its
licence. They do not seek to enforce any provision of Eskom’s licence against Eskom.
The residents also do not seek an amendment to Eskom’s licence to place an obligation
upon Eskom to supply them.
[91] Furthermore, the residents do not contend that Eskom was prohibited by
section 21(5) of ERA from reducing the supply of electricity to the municipalities. That
provision reads as follows:
“A licensee may not reduce or terminate the supply of electricity to a customer,
unless—
(a) the customer is insolvent;
(b) the customer has failed to honour, or refuses to enter into, an agreement for the
supply of electricity; or
(c) the customer has contravened the payment conditions of that licensee.”
[92] It is clear that the municipalities, as customers, are in arrears and do not pay for
all of the electricity they procure from Eskom . Therefore, the condition for the
reduction of supply in terms of s ection 21(5)(c) was met. Section 21(5) authorised
Eskom to take the reduction decision.
[93] The residents do not rely upon the Conversion Act. They do not say that the
Minister of Public Enterprises has failed to discharge his mandate to agree to a
Shareholder compact that would protect the interests of the residents.
[94] What rights then do the residents contend they may invoke to impugn the
reduction decision? That is the threshold issue of importance for two reasons. First,
even in the extended sense explained in Grey’s Marine,95 the proposed review under
PAJA requires that the administrative action adversely affect the rights of the residents.
95 Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works [2005] ZASCA 43 ; 2005 (6) SA 313 (SCA);
2005 (10) BCLR 931 (SCA) at para 23.
UNTERHALTER AJ
36
Second, the grounds of review relied upon by the residents are based upon the
proposition that Eskom’s duty of supply to the residents rendered the reduction decision
unlawful.
The pleadings
[95] In their founding affidavits, the residents invoke what they style a basic public
right to the supply of electricity. The specific rights they mention are the rights to life,
dignity, water, education and a healthy environment. The founding affidavits do not
contend that these rights include the right to the supply of electricity. Indeed, they say
nothing as to the contents of these rights. Rather, they aver that electricity is a means
by which these rights are realised. They also reference decisions of the High Court that
have interdicted Eskom’s termination or restrictions of supply , and rely upon the
holding in Resilient SCA.
[96] In the High Court, Millar AJ reasoned that the residents’ right to the supply of
electricity was inextricably bound up with their constitutional rights to dignity, life,
housing, healthcare, food, water and social security. The second judgment agrees. It
also adds, to the list of rights infringed by Eskom’s reduction decision , the right to a
basic education.
[97] The first difficulty with these wide -ranging findings is to source their origin in
the pleaded case. Beyond the bare averment that the supply of su fficient electricity to
the citizens of municipalities is a basic public law right; and, that “the continuous supply
of electricity serves as a means to realise other fundamental rights such as rights to
water, education and a healthy environment” , nothing more is said in the
founding affidavits as to the contents of the rights invoked by the residents. Neither the
High Court, nor the second judgment, explain how the long list of rights they rely upon
have a content that gives rise to the infringement they find to have been established .
Rather, as I shall explain, the second judgment proceeds from the premise that the
calamitous social and economic effects of the reduction decision self-evidently establish
UNTERHALTER AJ
37
the infringement of the rights referenced in the founding affidavits and those inferred in
the second judgment.
[98] The second judgment says that it suffices for a court to examine the facts that
have been pleaded and derive the infringement of rights from those facts. The
second judgment frames the matter as thus: “ [t]he residents make a simple case.
Eskom’s decision of substantially reducing the electricity supply has resulted in a
breach of several rights prot ected by the Bill of Rights ”.96 The reasoning of the
second judgment is this. Eskom substantially reduced the supply of electricity to the
municipalities. This has caused deplorable conditions in the municipalities. Therefore,
the identified constitutional rights of the residents have been infringed.
[99] There is a missing step in the reasoning , which is fundamental. Does Eskom
owe a duty to the residents to supply them with the electricity that supports their
well-being? And do the residents enjoy a correlative right to claim that electricity from
Eskom? If Eskom has no such duty and the residents have no such right, the reduction
of supply by Eskom cannot infringe a right, the contents of which does not include a
claim by the residents to the supply of electricity from Eskom. Put differently, how, in
law, can Eskom be required to supply electricity to the residents that it has no duty to
supply because its failure to do so causes substantial suffering to the residents? The
answer is that Eskom cann ot be required to do what it has no duty to do. The duty to
act lies elsewhere. That is, with the municipalities. The Associations do not plead that
Eskom has a duty of supply to the residents. The second judgment insists that no such
pleading is required.
[100] This is a surprising position to adopt. While a court will often wish to interpret
pleadings with generosity, as this Court made plain in Bato Star,97 “it is desirable for
litigants who seek to review administrative action to identify clearly both the facts upon
96 See [261] of the second judgment.
97 Bato Star above n 48 at para 27.
UNTERHALTER AJ
38
which they base their cause of action, and the legal basis of their cause of action”. Since
the Associations base their proposed review on what they style a basic public law right,
it is not fetishistic formalism to require the Associations to specify the rights of the
residents upon which they rely , the contents of those rights, and the facts that support
their infringement. The residents list the rights they rely upon, but fail to plead the
contents of these rights that impose a duty upon Eskom to supply them with electricity.
Hence, they make no showing as to how Eskom has breached a duty that the residents
have never pleaded or established.
[101] This is an issue of some importance. The rights advanced by an applicant have
a specific content. First, a respondent is entitled to know what rights are claimed so as
to understand its correlative duties; whether it has complied with those duties ; and, if
not, whether its breach may be justified by way of limitation. Second, a court must
decide the dispute before it, and not author a result on equitable grounds when no case
in law has been pleaded or made out.
[102] The approach adopted in the second judgment allows a court to read into the
facts the rights and their contents that it considers worthy of vindication. That is an
invocation of divination at the instance of the court. It is not the role of the courts to do
so, nor is it our law.
[103] Do residents who procure electricity from the municipalities in which they reside
enjoy constitutional rights to the supply of electricity from Eskom ? This Court’s
decision in Joseph identified the obligation s of local government to provide basic
municipal services, including electricity. Those obligations derive from the objects of
local government in s ection 152 of the Constitution and the developmental duties of
municipalities set out in s ection 153 of the Constitution, read with the relevant
provisions of the Municipal Systems Act.
[104] Our holding in Joseph has been held by certain High Courts as being capable of
extension so as to impute onto Eskom the obligations of a municipality to supply
UNTERHALTER AJ
39
electricity. An exposition of this reasoning is to be found in Cape Gate.98 That Court
reasoned as follows. The municipality is a conduit between the supplier of electricity,
Eskom, and the consumers who pay for the electricity supplied, that is the residents. If
the residents have a public law right as against the municipality to pro cure a supply of
electricity, “it would be incongruous if the ultimate beneficiary of and payer of the
electricity stream downwards did not have the right to enforce due performance by the
initiating supplier of the electricity of a public-law duty owed by it to the conduit of the
electricity”.99
[105] This reasoning is mistaken. The Constitution imposes obligations upon
municipalities. Municipalities constitute the autonomous local sphere of government
under the Constitution. They enjoy specified powers, discharge crucial functions, bear
defined duties and form part of the democratic government of the country.
Municipalities can in no measure be characterised as a conduit. That is to transpose the
commercial interposition of a middleman upon a constitutionally ordained autonomous
sphere of government. Municipalities are required to discharge their constitutional
mandate, including their duty to provide basic services. They cannot abdicate that duty,
nor delegate it. A municipality is responsib le for the functions it performs . It is
ultimately answerable to its local electorate. The municipality is not a conduit of
obligations.
[106] True enough, municipalities must often procure goods and services to discharge
their functions. Providers of those goods and services may , in certain instances, be
organs of state, such as Eskom, that may bear their own constitutional and statutory
duties. But the mere fact that Eskom supplies almost all of the electricity that
municipalities require does not make the duties of the municipalit ies those of Eskom.
Eskom has duties of its own. But they do not come about simply because Eskom is a
monopoly supplier of electricity.
98 Cape Gate (Pty) Ltd v Eskom Holdings (SOC) Ltd 2019 (4) SA 14 (GJ) at paras 129-130.
99 Id at para 135.
UNTERHALTER AJ
40
[107] If Eskom does not bear the duty to supply residents by reason of the transposition
of the municipalities’ duties upon Eskom , what is the independent basis in the
Constitution that imposes such a duty?
[108] The Supreme Court of Appeal , in the appeal now before us, considered the
reasoning of Petse DP in Resilient SCA to answer t his question. In Resilient SCA,
Eskom was found to have two constitutional duties. First, Eskom is an organ of state.
Municipalities are solely dependent on Eskom for electricity supply . Eskom has a
constitutional duty to ensure that municipalities “are enabled to discharge their
obligations under the Constitution ”.100 Adopting a passage in Allpay,101 this duty was
found to derive from s ection 8(1) read with s ection 7(2) of the Constitution .102 Since
Eskom is an organ of state, the Bill of Rights is binding upon it. Furthermore, since the
state must respect, protect, promote and fulfil the rights in the Bill of Rights, Eskom is
required to enable the municipalities to discharge their duties. To do so, Eskom bears
a duty of supply. I shall refer to this as the enablement argument.
[109] The second basis for imposing a constitutional duty upon Eskom is this. As an
organ of state, Eskom is bound, in terms of section 41(3) of the Constitution,103 and the
provisions of IRF A, to make every reasonable effort to settle an intergovernmental
dispute in which it is involved. Until Eskom has done so, it may not implement a
decision to interrupt supply, as was the case in Resilient SCA, or to reduce supply, as
occurred in the matter before us. I shall refer to this as the settlement argument.104
100 Resilient SCA above n 36 at para 80.
101 Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security
Agency [2014] ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC).
102 Resilient SCA above n 36 at para 80, citing id at para 49.
103 Section 41(3) states the following:
“An organ of state involved in an intergovernmental dispute must make every reasonable effort
to settle the dispute by means of mechanisms and procedures provided for that purpose, and
must exhaust all other remedies before it approaches a court to resolve the dispute.”
104 Resilient SCA above n 36 at paras 61, 64 and 79.
UNTERHALTER AJ
41
The right to the supply of electricity: the enablement argument
[110] I consider first the enablement argument. I have set out above why it is that
Eskom qualifies as an organ of state. It forms part of the state.105 It is thus bound under
section 7(2) of the Constitution to respect, protect , promote and fulfil the rights in the
Bill of Rights. But what rights in the Bill of Rights do the residents contend provide
for the supply of electricity ? None were advanced on the pleadings or in the
submissions before us. The residents go no further than to contend that the supply of
electricity is a means by which certain rights may be realised. This is unsurprising. The
Bill of Rights does not provide that all persons sha ll have a right to electricity. In
Joseph, the constitutional duty resting upon a municipality to provide basic services
does not derive from the Bill of Rights. 106 Section 7(2) of the Constitution is not of
application to rights that derive from duties sourced elsewhere in the Constitution. The
enablement argument cannot prevail relying as it does on s ection 7(2) of the
Constitution, unless a case is made out that residents have a right, sourced in the Bill of
Rights, to be supplied with electricity. No such right has been claimed on the pleaded
case before us.
[111] I should not be understood to hold that such a case could not be made out. It
may be that the right in s ection 27(1)(c) to social security is wide enough to include
access to basic services, including electricity. I make no finding whatever on this score.
If, for the sake of argument, the provision of electricity forms some part of the right to
social security, Eskom may be required in its decision-making to promote and fulfil that
right. However, that is not the case before us. The residents have not relied upon
section 27(1)(c). This right, as this Court has held in Grootboom,107 does not require
the state to do m ore than its available resources permit. Accordingly, section 27 is
judged by what measures are reasonable within the state’s available resources to achieve
the progressive realisation of the right. Section 27 does not impose a minimum level of
105 See [274] of the second judgment.
106 Joseph above n 51 at paras 34 and 37.
107 Grootboom above n 16 at para 46.
UNTERHALTER AJ
42
assistance. In the present matter, we thus have no idea whether the supply of electricity
to the NMD levels in the supply agreements concluded between Eskom and the
municipalities conforms to what would be required of Eskom to promote and fulfil a
right to electricity as a basic service, if such a right should exist.
[112] The second difficulty is just as problematic. A right must have a defined content.
No right in the Bill of Rights gives express recognition to a right of every person to
electricity. As I have noted, section 27(1)(c) may have that implicit content. But, as I
have observed, that is not the case before us. The Associations plead that the supply of
electricity is a means to realise other fundamental rights.
[113] This reasoning cannot be sustained. A particular means by which a right may be
secured does not make that means the subject matter of the right. In the case of the right
to housing (section 26) or rights to health care, fo od, water and social security
(section 27), it is for the state to take reasonable measures within its available resources
to achieve the progressive reali sation of these rights. The state must determine the
means by which these rights are progressively realised. But the means to reali se the
rights do not define the contents of the rights . Not least because there may be entirely
different, but equally permissible means used to reali se the same right. These rights
must be progressively reali sed. How that is to be done is for the state to determine,
provided the measures taken are reasonable. Thus, how the state may use the supply of
electricity; through what agency ; and, under what condit ions to realis e the rights in
sections 26 and 27 of the Constitution, is for the state to determine.
[114] It follows that the residents cannot claim a right to the supply of a certain quantity
of electricity from Eskom on the basis that the electricity has utility in securing their
rights under sections 26 and 27 of the Constitution. That would be to disintermediate
the state and the decisions the state must make as to how to realise these rights, and how
to do so on an aggregative basis that permits of their progressive reali sation. The
residents may complain that the state is not taking the measures required of it. But that
is not the case before us. What the residents cann ot do , within the scheme of
UNTERHALTER AJ
43
the Constitution, is to fasten upon a particular organ of state and select it to provide
them with a resource ( here, electricity) that would secure for them better access to
housing, health care, food, water and social security.
The content of the other rights in the Bill of Rights
[115] What of the rights in the Bill of Rights that are not so qualified ? The
Associations and the High Court refer to the right to life and dignity. The
second judgment adds the right to a basic educatio n. The Associations, in their
founding affidavits, make mention of the right to an environment that is not harmful to
their health or well -being. Of these rights, the High Court said that the right to the
supply of electricity is inexorably bound u p with the rights it referenced in the Bill of
Rights. The Associations contended that the supply of electricity was a means to the
enjoyment of the rights they rely upon , including the right to water, educa tion and a
healthy environment. The second judgment finds that Eskom’s reduction decisions
constitute clear infringements of the rights identified in the judgment.
[116] None of these approaches commences with the correct starting point: what is the
content of the right invoked ? In particular, does the content of these rights include a
right enjoyed by the residents to be supplied with a given quantity of electricity by
Eskom?
[117] Before I consider this question, I must address its relevance because the
second judgment says that this is the wrong question. The second judgment holds the
position that the constitutional rights it identifies should be the focus of the Court’s
concern and not the constitutional right of the residents to be supplied with electricity.
The second judgment variously describes my preoccupation with the right of supply to
electricity to be mistaken and that I am focusing on “the wrong right”.108 It considers
that the facts set out in the founding affidavit self -evidently show an infringement of
the residents’ right to dignity, life, an environment that is not harmful to health or
108 See [195] and [200] of the second judgment.
UNTERHALTER AJ
44
well-being, basic education, and clean water . Whether the contents of these rights
provide for a right to a specific quality of electricity from Eskom is a demonstration that
need not be made. It is, in the words of the second judgment, “to straitjacket ” the
second judgment. Without this constraint, the second judgment says that the
implications of its holding upon the state’s budget do not arise.109
[118] This reasoning is mistaken, and profoundly so. Rights, conceptually, are held by
some person and against another person (or entity). So too, duties are owed by a person
(or entity) to another. Rights always have a content. We do not have a right in the air.
We have a right to something. And the right enjoyed by a person gives rise to a duty
owed by another to the right s-holder. Rights standardly fall into two principal
categories: first, a right that others do some action with respect to the rights -holder (a
claim right); and second, a right that a rights-holder may do some action (an active
right). The content of the right det ermines which type of right is enjoyed by the
rights-holder. Drawing this together, in the case of a claim right, the right s-holder (X)
has a claim against another (Y) that Y performs an action (A). Y has a correlative duty
to X of the same content, that is, to do A. In the case of an active right, the rights-holder
(X) may take some action (A) . Y must forebear and permit X to do so because Y has
no right, as against X, to prevent X from doing the action, A.110
[119] I have set out this foundational understanding of rights because the
second judgment fails to adhere to it. The residents do not have a right to life or dignity
in the air. The rights that they claim must have a content. That content determines
whether the rights relied upon are claim rights or active rights. The rights can only exist
if they give rise to co-extensive duties of a specific content borne by identified persons
(or entities). What then is the contents of the residents’ right to life, to dignity, to an
environment that is not harmful to their health or well -being? The second judgment
does not tell us. It holds to the proposition that it suffices to read the founding affidavit,
109 See [289] of the second judgment.
110 This analysis of rights follows the scheme of Hohfeld expounded in Hohfeld “ Some Fundamental Legal
Conceptions as Applied in Judicial Reasoning” (1913) 23 Yale Law Journal 16.
UNTERHALTER AJ
45
observe the deplorable conditions brought about by the reductio n decisions, and hence
recognise that these rights are being infringed.
[120] That is an error of some gravity. We can only decide whether a right has been
infringed if we know the content of the right to which the right s-holder has a claim ;
upon whom the duty rests to secure the content of the right; and, hence whether the duty
has been carried out. The residents complain that the reduction decisions of Eskom
have caused them to suffer the deplorable conditions set out in the founding affidavit.
Those decisions are to be challenged on review because they infringe the residents’
rights. To what do the residents claim a right? To the restoration of the supply of
electricity that Eskom provided prior to the reduction decisions. It is an unavoidable
step in the analysis of the case before us that the content of the rights claimed is to the
supply of a determined amount of electricity. The residents contend that they have
claim rights upon Eskom to restore the electricity it supplied to the municipalities prior
to the reduction decisions, and that Eskom has a correlative duty to do so. We can thus
identify the right-holders, what is claimed, and against whom.
[121] The second judgment identifies the rights-holders as the residents. It enumerates
constitutional rights enjoyed by the residents, without identifying their contents, which
the second judgment considers to be an unnecessary step in the reasoning. The
second judgment holds that because the deplorable conditions suffered by the residents
have come about because of the reduction decisions, Eskom must be ordered to restore
the status quo. Why Eskom, as opposed to the municipalities, has the legal duty to do
so is unexplained. And that is so because Eskom cannot have a legal duty to restore
supply to the residents if the residents have no right to claim that supply. The
second judgment impermissibly avoids the central question upon which the case of the
Associations rests: do the contents of the constitutional rights enumerated in the
second judgment include a claim right by the resident s upon Eskom to the restoration
of the supply of electricity?
UNTERHALTER AJ
46
[122] The reasoning of the second judgment comes down to this. Eskom was
supplying electricity at a particular level. Its reduction decisions have caused deplorable
conditions for the residents of the municipalities. These effects self-evidently amount
to an infringement of the enumerated constitutional rights of the residents. Hence, a
prima facie case has been made out for the interim restoration of su pply by Eskom,
pending the determination of the review.
[123] This reasoning begs the central question: what do the residents claim? They
claim the restoration of the supply of electricity that Eskom’s reduction decisions have
deprived them of. Do the residents have a right to claim this from Eskom by virtue of
the rights they have enumerated? The second judgment erroneously answers this
question in the affirmative . It says, if Eskom once supplied the electricity and the
consequences of not doing so are harmful, the residents have a right to claim restoration
of the supply of electricity. This reasoning avoids the unavoidable issue: did the
residents ever enjoy the right to the supply of electricity from Eskom by virtue of their
constitutional rights? If not, how did the residents acquire this right? To this question,
neither the pleaded case before us, nor the High Court judgment, nor the
second judgment provides an answer. And for understandable reasons, because the
residents have no such r ight. Their rights lie against the municipalities, as Joseph has
held. Alternatively, they could seek recourse under the regulatory scheme of ERA. To
avoid this issue, as the second judgment assiduously does, does not diminish its
salience. Put simply, the residents cannot claim something as of right which forms no
part of the contents of the rights they invoke. And no invocation of deplorable social
and economic effects can cure this juridical lacuna. Nor can section 7(2) of the
Constitution fill this gap. This is so because if the residents have not established a right
under the Bill of Rights to the restoration of supply by Eskom, there is no duty, deriving
from section 7(2) , for Eskom to respect, protect, promote or fulfil rights that do not
exist.
[124] The second judgment considers there to be no lacuna. It holds that the residents
need not show that they have a right to claim from Eskom the supply of electricity that
UNTERHALTER AJ
47
it has reduced. The residents’ rights lie elsewhere. They are to be found in the rights
set out in the founding affidavits; by recourse to the obligations of the state to respect,
protect, promote and fulfil the rights in the Bill of Rights, as section 7(2) of the
Constitution requires; and, by reference to the residents’ case that Eskom has acted
without procedural fairness, contrary to the requirements of PAJA.
[125] This reasoning is mistaken. First, the right of the residents to claim electricity
from Eskom is not a claim that stands apart from the rights in the Bill of Rights that the
residents rely upon. It is the claim that the residents make and would impose upon
Eskom. If that claim forms no part of the contents of the rights that the residents invoke,
then they have no claim in law deriving from these rights. It is hard to understand how
the residents need make no case that they have a right to the supply of electricity from
Eskom, but they can nevertheless compel the restoration of supply from Eskom, as a
matter of legal right, t he contents of which entails no claim to such supply. The right
to the supply of electricity from Eskom is not a right the residents may choose to ignore
and still prevail. It is the necessary contents of the rights that they must show or fail to
show in their application.
[126] Second, section 7(2) of the Constitution cannot do the work required of the
residents to make out a case if the residents do not have a right in the Bill of Rights that
supports their claim. The second judgment places some emphasis upon the duty of the
state to respect the rights in the Bill of Rights. That duty is plainly set out in
section 7(2). However, if the residents have established no right in the Bill of Rights,
as I hold, then there is nothing for the state to respect. The duty only arises in
section 7(2) if the residents have a right. Put simply, if there is no right, there is no
duty.
[127] Third, in what follows, I will explain why the residents have made out no case
for a want of procedural fairness. It suffices here to identify the same threshold problem
that affects the residents’ case. However generously we interpret the meaning of
administrative action , the relevant power must adversely affect the rights of the
UNTERHALTER AJ
48
residents. However , if the residents have no rights of the kind claimed by them , it is
difficult to comprehend what it would mean for their rights to be adversely affected by
Eskom’s reduction decision. If the residents have no legal right to the supply of
electricity from Eskom , the reduction of supply has no capacity to affect their legal
rights. This is so even in the expanded sense recognis ed in Grey’s Marine .111 The
second judgment cites, with approval, academic commentary that understands the class
of rights that may be affected to be broad. I agree, although I have some difficulty
understanding what it means to say that there is no “natural limit” to rights that fall into
the class.112 Here, however, the residents rely upon rights they contend for in the Bill
of Rights. Without those rights, for reasons I shall explain, the residents have no right
to procedural fairness.
[128] I draw attention to what I consider to be the fundamental error in the
second judgment because it holds the seed s of much constitutional danger. Many
people in this country suffer dire conditions that gravely compromise their life chances.
The breakdown and incapacity of the sta te, in many aspects of its operations,
exacerbates this suffering. The second judgment proceeds from the following premise.
Constitutional rights, such as the right to life and dignity, coupled with the obligations
cast upon the state in section 7(2) of the Constitution, give rise to claim rights upon the
state in every one of its constituent elements where resources might be applied to redress
conditions of immiseration. The moral sentiment is worthy. But, as I will explain, that
is not what our Constitution provides. Nor should it because it would lead to the courts
allocating the greater part of our public resources and deciding how the state should do
so. That would be an impermissible usurpation of democratic government.
[129] I proceed, then, to the central issue: what is the conten t of the rights that the
second judgment enumerates? The content of the right to life , or dignity , or an
environment not harmful to health or well-being is not a claim by the rights-holder to a
111 Grey’s Marine above n 95.
112 De Ville Judicial Review of Administrative Action in South Africa rev ed (LexisNexis Butterworths, Durban
(2005) at 53 referred to the second judgment.
UNTERHALTER AJ
49
specific quantity of a specific resource that the state is bound to provide; so as to sustain
the enjoyment of these rights at a particular level . I shall refer to such a claim as the
resources claim. That is so for a number of reasons. First, it is inconsistent with the
structure of the Bill of Rights. The Constitution has given express recognition in
sections 26 and 27 to rights that place an obligation upon the state to use its resources
for the progressive reali sation of these rights. This Court has also held that in cases
concerning the rights in sections 26 and 27, other rights, such as the right to life, dignity
and equality , should be taken into account when deciding whether the state has
complied with the constitutional standard of reasonableness. 113 If the rights to dignity
or life required that the state be placed under an obligation (absent limitation) to secure
a particular standard of living or level of economic opportunity by way of the resources
claim, this would not only eclipse, indeed it would render redundant, the more limited
and rigorous requirements of sections 26 and 27 . Additionally, it would amount to a
substantial subordination of the power of the Executive and the Legislature to decide
upon fundamental questions of policy and legislation that acc ord with the democratic
mandate of the government of the day. No coherent interpretation of the Constitution
allows for this understanding of the rights in the Bill of Rights as posited in the
second judgment.
[130] Second, the contents of these rights do not include the resources claim because
it is contrary to the precedent of this Court. In Soobramoney,114 the applicant sought
dialysis treatment from the state so as to be kept alive since he lacked the private means
to secure such treatment. He invoked the constitutional guarantee of the right to life, as
also section 27 of the Constitution . Of the right to life claimed by Mr Soobramoney,
this Court had the following to say:
“The state has to manage its limited resources in order to address all these claims.
There will be times when this requires it to adopt a holistic approach to the larger needs
113 Khosa v Minister of Social Development; Mahlaule v Minister of Social Development [2004] ZACC 11; 2004
(6) SA 505 (CC); 2004 (6) BCLR 569 (CC) at para 44.
114 Soobramoney v Minister of Health, KwaZulu-Natal [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR
1696 (CC).
UNTERHALTER AJ
50
of society rather than to focus on the specific needs of particular individuals within
society.”115
[131] The claim for treatment was dismissed for failing to make out a case in terms of
section 27(1) and (2). Soobramoney makes plain the proposition that direct claims upon
the resources of the state should not be sought in the right to life, but rather in the
socio-economic rights in the Bill of Rights that give express treatment to such claims.
A failure to observe this distinction undermines the duties of the state to make decisions
over limited resources. That is its preserve to secure the welfare of the country and its
people.
[132] Third, if, as the second judgment proposes, the right to life or to dignity not only
found a claim to specific state resources but also to such resources as might be required
to maintain a certain level of welfare, this Court will soon become the arbiter of the
entire state budget. As I have explained, this is a country where poverty greatly curtails
the life chances of a very large number of people and , as a result, gravely limits their
dignity. The right to life or to dignity may be enhanced for particular classes of persons
by claims upon state resources. Every poor person would lead a more dignified life if
the state gave them a minimum income every month. That may be a good policy for
the state to adopt . It is a matter of considerable public debate. Such a policy may or
may not be affordable. But these are not measures that may be claimed as an incident
of the right to life or the right to dignity . They should not be decided by the courts.
They are matters to be decided by other institutions of a democratic state:
the Legislature and the Executive.
[133] I should not be understood to hold that ending an infringement of a right to
dignity or life, or the other rights referenced above, apart from the socio-economic rights
in the Bill of Rights , may never have consequences for state expenditure. Plainly that
is not so. The remedy imposed to cure the infringement of rights very often require s
115 Id at para 31.
UNTERHALTER AJ
51
the use of state resources. What I do hold is that the rights claimed by the Associations,
expanded upon by the High Court and in the second judgment, are not rights, the
contents of which lay claim to a specific state resource, to be maintained at a specific
level.
[134] This is so, even in respect of rights, the contents o f which may give rise to a
claim upon state resources. The rights in sections 26 and 27 are expressly predicated
upon reasonable measures, within the state’s available resources, t o achieve the
progressive realisation of these rights. The right to basic education, referenced in the
second judgment, may require the expenditure of state resources to provide such an
education. However, the state will retain the power to decide how to do so and with
what resources. That will always remain within the state’s margin of appreciation. As
the Associations acknowledge, electricity is a means to secure the enjoyment of a right.
However, a rights -holder cannot require the state to use this means to secure the
enjoyment of a right . Hence, the right to a basic education is not a right to a specific
state resource. The same is true of the right to an environment that is not harmful, under
section 24(a) of the Constitution, as raised by the Associations. What the state may be
required to do, rather than cease doing, so as not to infringe the right, does not translate
into a claim to a specific state resource.
[135] In sum, by failing to analyse the contents of the rights advanced by the
High Court and in the second judgment, their reasoning cannot support the conclusions
they reach. The High Court considered that because the supply of electricity is bound
up with the right to dignity and to life, there is a right to the supply of electricity. But
that is to confuse what may make the enjoyment of a right more fulsome with the content
of the right itself. The second judgment assumes that curtailing the supply of electricity
is an infringement of various rights. This puts the matter the wrong way round. It is
only once the content of the right is determined, as I have explained, that the question
of infringement may be de cided. The second judgment does not demonstrate that the
content of the rights it references includes the right of the residents to a particular level
of supply of electricity.
UNTERHALTER AJ
52
[136] The second judgment places emphasis on the rights of the residents to procedural
fairness. The treatment of this issue in the founding affidavits is so sparse that it is
difficult to discern that a case was made out. In the case advanced by the Vaal River
Association, reference is made to a meeting between representatives of the municipality,
Eskom and the Association during which the Association made representations to
Eskom. This meeting occurred after the announcement of the reduction decision, but
the engagement was undertaken to find a solution. It came to naught because the
municipality and Eskom could not resolve the question of the municipality’s
indebtedness to Eskom. The Association, in its account of the residents’ prima facie
rights, makes no mention of procedurally fair administrative action.
[137] In the Lekwa Association case, the founding affidavit recounts that Eskom
served notice of the reduction decision on the municipality, but the notice was not
served at the council meeting, nor was it distributed to political parties or the business
community. Here too, no prima facie right to procedurally fair administrative action is
invoked.
[138] The absence of a properly pleaded c ase notwithstanding, the second judgment
holds that the reduction decision constitutes administrative action and , this Court’s
decision in Joseph establishes that the residents have a right to procedurally fair
administrative action in terms of section 3 of PAJA. The p assage from Joseph
referenced in the second judgment does no such thing.116 It reads as follows:
“Indeed, a finding that the rights of the applicants were materially and adversely
affected for the purposes of s ection 3 of PAJA would necessarily imply that the
decision had ‘direct, external legal effect’ on the applicants. Conversely, a finding that
the rights of the applicants were not materially and adversely affected would have the
116 See [274] of the second judgment.
UNTERHALTER AJ
53
result that section 3 of PAJA would not apply – barring, of course, a claim based on
legitimate expectations which was not raised in this case.”117
[139] The holding in Joseph requires a determination of the very issue with which I
remain in disagreement with the second judgment. That is, do the residents have rights
to assert against Eskom to restore the supply of electricity that the reduction decisions
have reduced? In Joseph, the rights of the residents derived from the constitutional and
statutory duties resting upon local government to provide basic municipal services,
including electricity. I hold that the residents in the present matter have no such rights
as against Eskom, and hence, following Joseph, there was no duty resting upon Eskom
to extend procedural fairness to the residents in taking the reduction decisions. The
second judgment holds that because the residents have a number of constitutional rights
as against Eskom, though not a right to the supply of electricity, Eskom was required to
accord the residents procedural fairness in deciding to reduce the amount of electricity
that Eskom supplied to the municipalities. The question of procedural fairness, even if
a case had been properly pleaded, is derivative of what constitutional rights the residents
enjoy against Eskom. For the reasons given, I hold that no such rights have been
established.
[140] There is one last issue on this as pect of the matter that warrants consideration.
The second judgment emphasises that this appeal concerns the grant of interim relief,
and hence the Associations need only show a prima facie right, though open to some
doubt. This, the second judgment holds, has been done. It is important , however, to
distinguish a question of law from the evidence marshalled as to the facts upon which
an application for interim relief rests. A question of law may be difficult to decide, but
it has a right answer. And hence, where the rights relied upon by an applicant turn on
a question of law, the law either recognises the rights claimed or it does not. It is not a
matter that is decided by reference to weight (weak or strong). That is the case we have
before us. The Constitution and the relevant statutory scheme either confer a right upon
117 Joseph above n 51 at para 27.
UNTERHALTER AJ
54
the residents to the supply of electricity from Eskom or they do not. I hold that they do
not. The second judgment takes comfort in the notion that it suffices for the purposes
of interim relief that the residents have a prima facie right to the supply of electricity
from Eskom. I am very doubtful that a question of law can yield such a conclusion.
But if it could, I find no basis to find that the residents have any such right, prima facie
or otherwise.
[141] The enablement argument thus cannot hold sway because neither in the appeals
before us, nor in Resilient SCA, was a right in the Bill of Rights advanced , much less
established, that burdens Eskom with the duty to supply the residents of the
municipalities with electricity.
Section 7(2) of the Constitution
[142] Emphasis is placed in the second judgment upon section 7(2) of the Constitution.
But, absent a finding that the residents have a right to the supply of electricity located
in the Bill of Rights, s ection 7(2) has no application. I cannot, for the reasons given,
find that the Associations have established such a right.
[143] The second judgment references the duty cast upon the state by section 7(2) to
respect the rights in the Bill of Rights. How can it be , the second judgment asks, that
Eskom does not have a duty to restore the supply of electricity that it has decided to
reduce when the reduction bears so harshly upon the residents? The second judgment
takes it to be axiomatic that Eskom has a duty of restoration because that is the respect
that is due to the constitutional rights of the residents. There are, however, two separate
issues which should not be confused. First, what rights, located in the Bill of Rights,
do the residents have to electricity? Second, if the residents have the right to electricity,
arising from the Bill of Rights, against whom may these rights be claimed? The
second judgment avoids both questions.
[144] If the residents have no constitutional right to the supply of electricity, then no
duty is cast upon Eskom to restore electricity out of respect for rights that have not been
UNTERHALTER AJ
55
established. But even if a right to the supply of electricity had been established, it does
not follow that s ection 7(2) would cast an obligation upon Eskom to supply that
electricity to the residents. This, the second judgment assumes to be the case ; but
wrongly so. The second judgment has recourse to section 7(2) so as to find a basis upon
which Eskom may be held liable to make good the infringement of the residents’ rights.
Section 7(2) does not do so.
[145] Section 7(2) requires the state to respect, protect, promote and fulfil the rights in
the Bill of Rights. The state is made up of many parts, of which Eskom is an organ.
The obligations of s ection 7(2) are not cast upon every constituent part of the state.
Regard must be had to the division of responsibility under which the state is organised.
This is in part dictated by the Constitution itself. By way of example, the Reserve Bank
may not be called upon to cure the failure by officials of the Department of Home
Affairs to issue a passport to a citizen.
[146] The present case bears out this principle. It is the municipalities , under the
Constitution and by reason of the regulatory scheme that governs the supply of
electricity, which are required to supply electricity to the residents. That duty has not
been allocated to Eskom . The municipalities constitute the sphere of gover nment to
which the duty has been given. They must carry out their duties and, by so doing, fulfil
the obligations of the state in section 7(2). Section 7(2) cannot be understood to require
an organ of state to which the duty to supply electricity to residents has not been given,
to do what the municipalities have failed to do, so as thereby to honour the state’s
obligations under section 7(2). Yet this is what the second judgment would require of
Eskom, and without explanation as to why, if the resident’s rights have been infringed,
the municipalities should not be that part of the state that must make good the state’s
obligations under section 7(2).
Subsidiarity
[147] Even if the residents had been able to identify a constitutional right that they
could invoke, they would be met by a further difficulty.
UNTERHALTER AJ
56
[148] The ERA is a comprehensive piece of legislation that regulates the generation,
transmission and distribution of electricity. In particular, ERA regulates the
relationships of supply with which this appeal is concerned . That is, the relationship
between Eskom, as the supplier of bulk electricity to municipalities ; the municipalities
as customers of Eskom; and the residents of the municipalities, who procure electricity
from the municipalities as end users. The rights of end users, such as the residents of
the municipalities, to the supply of electricity and Eskom’s obligations to do so are
regulated under ERA. Once Parliament has legislated in this way, may the residents
look outside ERA to assert rights against Eskom?
[149] The principle of subsidiarity, repeatedly recognised by this Court, has a number
of applications .118 One application of the pr inciple is that a litigant cannot directly
invoke a constitutional right when legislation has been enacted to give effect to that
right. The litigant must either challenge the constitutionality of the legislation so
enacted or rely upon the legislation to make its case.
[150] The residents do not impugn the reduction decision by recourse to ERA. This
creates an obstacle that stands in the way of the proposed review of the reduction
decision, and hence the interim relief that is predicated upon the review. Even if the
residents had been able to identify a constitutional right that the y could assert against
Eskom, they would have had to show that they were not bound to seek recourse under
ERA as the legislation enacted to give effect to that right. This they did not do. The
principle of subsidiarity excludes the relief that the residents have sought in their
review, and hence precludes the grant of the interim relief that they have obtained.
[151] The second judgment considers that the principle of subsidiarity poses no
obstacle to the residents’ claim to the restoration of supply from Eskom because ERA
does not give effect to the constitutional rights that the second judgment finds the
118 Mazibuko above n 42.
UNTERHALTER AJ
57
residents to enjoy. The second judgment says that the constitutional rights of the
residents are manifold, and that ERA is a single legislative instrument that could not
have been enacted to gi ve effect to all of these rights. The second judgment fails to
recognise that it is not the number of the rights that it references, but the content of these
rights. That content, as I have explained, concerns a claim by the residents to the supply
of el ectricity. That is precisely what ERA and the regulatory scheme that I have
described regulate. And hence the principle of subsidiary holds good.
[152] The second judgment also fails to have regard to the scope of the regulatory
scheme under which powers, rights and duties are allocated for the supply of electricity
to residents. I have set this out in detail. Suffice to say that it is the Constitution that
places the municipalities at the centre of the supply of electricity to the residents. There
is an interlocking scheme of legislation and subordinate legislation that constitutes
NERSA; confers wide powers upon it ; regulates Eskom and the municipalities ; and
grants rights to end users. It is hard to imagine a more comprehensive regulatory
scheme. This scheme is clearly ordered to secure the public interest, of which the rights
of end users, and hence residents, forms part. It is difficult to understand how this
scheme can be understood, given its reach, not to give effect to such constitutional rights
as the residents may enjoy. How the residents can apparently by-pass this entire edifice
by directly invoking their constitutional rights is a conclusion I find preposterous.
[153] The second judgment provides a lengthy disquisition on the concept of
subsidiarity in our constitutional jurisprudence. That analysis shows that the principle
of subsidiarity is generally, but not exclusively, of application in cases where a statute
gives effect to a constitutional right. The second judgment cannot find anything in ERA
that can be said to give effect to a constitutional right. The second judgment declines
to decide whether subsidiarity can apply to legislation that does not give effect t o a
constitutional right. But it goes on to say that absent a definitive pronouncement on this
point, the question of subsidiarity can do no more than cast some doubt on the residents’
prima facie rights.
UNTERHALTER AJ
58
[154] The second judgment is in error for two reasons. First, it is not simply ERA, but
the entire regulatory scheme that must be considered to determine whether the principle
of subsidiarity is of application. That scheme is predicated upon the constitutional
centrality of the municipality as the sphere of government responsible for the supply of
electricity to its residents. The powers of NERSA and the rights and duties of Eskom
are designed to cohere with the constitutional duties borne by municipalities. The rights
of residents to the supply of electric ity form part of this regulatory scheme. ERA
provides the statutory means by which residents may enforce their rights. But there can
be little doubt that it is a regulatory scheme that gives effect to the constitutional design
by which electricity is to be made available to residents. The residents’ recourse under
ERA forms part of that design, and hence triggers the application of the principle of
subsidiarity. In so far as the second judgment considers the residents’ case not to
depend on a constituti onal right to the supply of electricity , that is a disagreement
elsewhere explored in this judgment.
[155] Second, t he second judgment further falls into error because it adheres to an
incorrect understanding of what it means for an applicant for interim relief to establish
a prima facie right, though open to some doubt. This requirement concerns the standard
of proof that rests upon the applicant. The standard of proof is a standard t hat
determines what is required of a litigant to prove facts, not law. A proposition of law
which recognis es a right is either correct or it is not. The evidence marshalled to
establish that right must meet a particular standard. In the case of interim relief, the
standard is a prima facie right, though open to some doubt. An arguable proposition of
law has no bearing upon whether a right is prima facie established. Whether a right
exists in law is one thing. Whether an applicant has marshalled eviden ce sufficient to
establish that right is quite another. The second judgment makes a category error. The
principle of subsidiarity either excludes the claims of the Associations for interim relief
or it doe s not: that is a question of law . Whether the re sidents have established a
prima facie case is a question of evidence. The disinclination of the second judgment
to decide the question of subsidiarity does not mean that at best that question can only
cast some doubt on the prima facie case of the Associations. Correctly understood, a
UNTERHALTER AJ
59
question of law simply has no bearing on whether an applicant has met the standard of
proof required for the grant of an interim order. If subsidiarity applies , the residents
have no claim. If subsidiarity does not apply, or if a court is uncertain whether it applies,
the evidence marshalled by the applicant is unaffected – it is neither enhanced nor
diminished. Therefore, the principle of subsidiarity exclude s the claims of the
Associations. The second judgment declines to provide a definitive answer to the point.
[156] The second judgment takes the position that my approach is too rigid. It
expresses the view that there may be circumstances in which a court, faced with an
application for interim relief (sometimes on an urgent basis), cannot be expected to
reach a definitive decision on a question of law. If that be so, a judg e may say that
prima facie there is enough pointing to the determination of the legal question in the
applicant’s favour. I have some sympathy for this position. However, an arguable
question of law, upon which the case of the applicant turns is not what it means for an
applicant to have a prima facie right. That is to muddle an evidential standard as to
facts with a legal standard. The correct approach is to recognise, as the majority of the
Court did in the Full Court decision in Ferreira, that an applicant should meet the
standard of a serious question of law to be tried. That is the standard in English law,
and I see no impediment to its adoption.119
[157] However, I can see no justification for the second judgment declining on appeal
to decide the question of subsidiarity, and rather leaving this matter for the High Court.
There is no good reason to do so. The facts and the law have been placed before us.
The issue has been fully considered. The novelty and complexity of the matter does not
warrant deferring a decision on the point. It is precisely cases of novelty and complexity
that this Court is charged to decide. The matter should be decided. I hold that the
principle of subsidiarity is of application and non-suits the Associations.
119 Ferreira above n 60 at 836.
UNTERHALTER AJ
60
Section 7(2) of PAJA
[158] The residents face a further obstacle. ERA provides a comprehensive regulatory
framework. Section 30 requires NERSA to settle disputes between an end user, defined
to mean a user of electricity, and a licensee, such as Eskom. The residents have not had
recourse to s ection 30. They do not traverse this matter in their papers, nor in their
submissions before this Court. Yet their claim for interim relief is predicated upon a
review under PAJA. Section 7(2) of PAJA requires the exhaustion of all internal
remedies, save in exceptional circumstances. The residents have not explained why
relief under section 30 of ERA is neither possible, adequate or timeous. Instead, they
contend that it was incumbent on Eskom to refer the dispute to NERSA. They have
failed to provide a reason why they, as the aggrieved parties, did not refer the dispute
to NE RSA before bringing the reduction decision for review under PAJA. This
omission means that the promised review of the reduction decision was stillborn, and
hence the interim relief for this reason also cannot hold good.
[159] The second judgment holds that section 7(2) of PAJA poses no obstacle to the
residents in their application for interim relief because that application is not a review
of the reduction decisions, and hence s ection 7(2) cannot be of application. The
second judgment goes further still. It holds that section 7(2) of PAJA plays no role in
the determination of applications for interim relief pending a PAJA review. It reasons
that this would impose too great a burden on an applicant for interim relief, in that the
grant of interim relief already requires a showing that there is no other satisfactory
remedy. To add a requirement that an applicant must also show that it will comply with
PAJA is to unduly curtai l access to the courts. Furthermore, an applicant m ay yet
persuade the review court of exceptional circumstances that, in terms of section 7(2)(c),
excuse compliance with the obligation to exhaust any internal remedy.
[160] I recall what I have set out as to the relationship between an application for
interim relief and the prospects of the applicants in securing final relief. The position
taken in the second judgment fails to have proper regard to this. The issue before the
High Court was this: what prospects do the Associations have of succeeding in their
UNTERHALTER AJ
61
review of Eskom’s reduction decisions? A relevant consideration in answering that
question is whether the residents will be able to show that the review court can grant
final relief in the face of s ection 7(2) of PAJA. If the Associations have an internal
remedy and they do as section 30 of ERA provides a specific remedy to the residents
of direct application to the reduction decision of which they complain a failure to
exhaust this remedy means the court hearing the review will have no power t o review
the reduction decisions ; save for exemption upon a showing of exceptional
circumstances. The issue is not answered by saying that the application for interim
relief is not the review . A failure to provide any explanation as to why an available
internal remedy has not, will not or cannot be used gives rise to the difficulty that the
court deciding upon interim relief must apprehend that the court adjudicating upon the
case for final relief may not be competent to rule at all. If that is so, how d oes a court
order interim relief pending such a review?
[161] Nor is it answered by saying that the residents may yet seek to exhaust their
internal remedies under s ection 30 of ERA or show exceptional circumstances to
exclude compliance. That they have not, a nd have indicated no intention of doing so ,
is relevant in deciding whether the Associations have prospects of prevailing in the
review. That an application for interim relief is not a review, as the second judgment
observes, is not salient. 120 The application for interim relief necessarily casts forward
to consider the applicants ’ prospects of success. The Association s have an internal
remedy available to them. They say nothing as to why they have not used it or could
not use it to obviate the nee d for a review altogether. That is plainly relevant to the
question as to whether the court deciding the review could come to the assistance of the
Associations.
[162] The second judgment holds that traversing internal remedies at the stage of
interim relief is unduly burdensome to an applicant because it adds to the requirement
of showing the absence of another satisfactory remedy. The second judgment also
120 See [216] of the second judgment.
UNTERHALTER AJ
62
considers that this would infringe an applicant’s constitutional right of access to the
courts. In this, too, the second judgment is mistaken. As I have shown, whether an
applicant for interim relief will be able to comply with the requirements of
section 7(2)(a) of PAJA in the review is plainly relevant to the question whether the
applicant can secure relief from the courts in due course. If the applicant cannot, there
is no warrant to impose injunctive burdens on the respondent in the interim. Some
remedies available to an applicant may fall within the class of internal remedies
provided for in any other law as section 7(2)(a) stipulates. If the applicant has recourse
to such a remedy then, at the stage of interim relief, the question as to why the applicant
has not or will not make use of this remedy cannot be avoided. It bears directly upon
the applicant’s likely prospects of success in the review. If some other species of
alternative remedy is available to an applicant , then it will also be necessary to
determine whether it is satisfactory or whether the applicant can show that it is not so.
[163] These are assuredly burdens that an applicant must shoulder to enjoy interim
relief. But they are neither gratuitous nor an infringement of the right of access to
courts. They are relevant and necessary considerations that go to the justification for
making an interim order. Courts will not incline to render a respondent subject to
interim compulsory constraint by its order if there is no need to do so , or there are
vanishingly modest prospects that the applicant can prevail in the review. Nor does an
applicant, so burdened, suffer any restriction of their right to have the question of
interim relief resolved by the application of law. The difference I have with t he
approach taken by the second judgment concerns the legal considerations that are
relevant to the grant of interim relief. A difference as to the substantive law of
application to the grant of interim relief cannot be characterised as an issue of access to
courts, as the second judgment unwarrantably seeks to do. The right to have a dispute
resolved by the application of law cannot determine what substantive law is used to
decide the dispute.
[164] When a court decides upon an application for interim relief, the question is
whether the respondent must endure such an order if there are other satisfactory
UNTERHALTER AJ
63
remedies available to the applicant. Thus, the issue is whether the applicant may secure
adequate redress, at least in the interim, by recourse to another satisfactory remedy. The
Associations have had nothing to say on this score to show why the internal remedies
provided in section 30 of ERA, and available to the residents, would not suffice. The
availability of an internal remedy , in this case, is an issue pertinent to two factually
interconnected, but separate, legal issue s. First, whether there is any prospect that the
court that hears the review will enjoy the competence to grant final relief . Second,
whether the internal remedy suffices to provide a satisfactory remedy. Both issues are
relevant to the enquiry as to whether interim relief should be granted to an applicant
who would bring an administrative action under judicial review.
[165] Whether examined from the vantage point of prospects of success in the review
or the availability of a satisfactory alternative remedy, the Associations have failed to
deal with these matters . The second judgment says this matters not because the
residents averred that they had no other satisfactory remedy, the High Court agreed, and
this Court is in no position to hold otherwise. This is not so. The founding affidavits
of the Associations contended that it was Eskom’s duty to resolve its dispute with the
municipalities and tha t “the municipality and for that matter, the applicant, have no
other remedy”. By law it may not purchase its electricity fro m any supplier other than
Eskom. That Eskom is a monopoly supplier to the municipalities, and they, in turn, are
monopoly suppliers to the residents answers the question as to whether the residents
have an alternative source of supply. It says nothing at all as to whether the residents
have an alternative satisfactory remedy. They do. It is an internal remedy provided for
in ERA, and the residents have nothing at all to say on this score. It is an obvious
omission and impediment to the grant of the relief that they sought. Eskom averred that
the residents did have alternative recourse. The High Court’s only finding on this aspect
of the matter was that the residents would not obtain relief by enforcing the obligations
of the municipalities because the municipalities were hopelessly insolvent. Neither the
High Court nor the Supreme Court of Appeal traverse the recourse of the residents
under section 30 of ERA. I do not see how a finding by the High Court as to one remedy
UNTERHALTER AJ
64
precludes the consideration by an appellate court of the availability of another remedy
that is relevant to whether the interim order was correctly granted.
The residual PAJA ground
[166] The second judgment considers the residents to have made a supportable case
that Eskom has acted for ulterior purposes because it took the reduction decisions to
pressure the municipalities to settle their outstanding debts. While the second judgment
acknowledges that this g round of review has not been pleaded, it holds that it can
nevertheless be entertained on a discretionary basis.121
[167] That is not so. An appeal court might entertain an appeal where an issue that
strayed from the pleadings was fully ventilated before the Court below. 122 But an
appellate court cannot raise a ground of review that was not pleaded nor fully considered
by the parties on thei r papers and in argument. In any event, the factual basis of the
case for Eskom’s ulterior purpose is much contested on the facts. Eskom’s affidavit
sets out the reasons for its reduction decisions which provide reasons for acting that are
reasonable, gi ven what it says as to the risks to the grid and the danger of illegal
connections. On an application of Gool,123 or even the tests more favourable to the
Associations, much doubt is cast on the ulterior purpose ground of review; whether cast
as such, or u nder the more general case that was pleaded of rationality. There seems
little to gainsay the point that Eskom was acting within its rights under the regulatory
scheme of application to it. Such lawful action is not transformed into a reviewable
irregularity by labelling it an ulterior purpose or irrational.
121 See [276] of the second judgment.
122 See Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 at 198 where the Court held the following:
“The object of pleading s is to define the issues; and parties will be kept strictly to their pleas
where any departure would cause prejudice or would prevent full enquiry. But within those
limits the Court has a wide discretion. For pleadi ngs are made for the Court, not the Court for
pleadings. And where a party has had every facility to place all the fac ts before the trial court
and the investigation into all the circumstances has been as thorough and as patient as in this
instance, there is no justification for interference by an appellate tribunal, merely because the
pleadings of the opponent has not been as explicit as it might have been.”
123 Gool above n 59.
UNTERHALTER AJ
65
A variant of the enablement argument
[168] A variant of the enablement argument was this. Since the municipalities bear
the constitutional duty to provide basic services, as Joseph has held, Eskom as an organ
of state must make it possible for the municipalities to do so. The intuitive appeal of
this contention cannot escape this question: what is the source of Eskom’s duty? It is
not, as we have seen on the case before us, section 7(2) of the Constitution. Nor do the
residents make out a case that the Constitution elsewhere cast s a constitutional duty
upon Eskom to enable the municipalities to carry out their constitutional functions. The
duties of Eskom and, in particular its developmental role as I have described it, are set
out in the Conversion Act and ERA. The residents have sought no recourse under this
legislation. Without a right pleaded and established, intuition cannot make a case.
[169] For this reason also, the mere fact that the reduction decision has been taken by
Eskom as an organ of state does not render the decision reviewable , without more.
Section 1 of PAJA defines administrative action, applied to the case before us, as the
exercise of public power which adversely affects the rights of any person. As I have
already explained, o n the most generous construction of what this means, following
Grey’s Marine and its progeny, the reduction decision must have had the capacity to
affect the rights of t he residents. But the residents have no constitutional rights as
against Eskom to supply electricity , not on the pleaded case or otherwise established
before us. The reduction decision cannot have the capacity to affect rights that have not
been established, either existing or prospective, as against Eskom. The residents have
thus failed to show that the reduction decision is reviewable. The holding of the
High Court in Resilient High Court that residents may review Eskom’s decision to
terminate supply on rationality grounds is not correct. The rights of residents in this
position are secured by recourse against the supplier of their electricity, the
municipalities, or under the regulatory framework of ERA.
[170] Even if the residents had been able to make a case that Eskom has a duty to
supply electricity to the municipalities, it is hard to imagine that Eskom could have been
UNTERHALTER AJ
66
called upon to discharge that duty to enable the municipalities to perf orm their
constitutional obligations . On the facts before us, the municipalities have abdicated
their duty to provide basic services to th eir residents . Eskom cannot be required to
enable the municipalities by supplying electricity when the municipalities cannot or will
not carry out their primary constitutional obligations. Nor can the residents subvert the
scheme of the Constitution by seeking relief, in effect, to substitute Eskom for the
municipalities and require Eskom to do what the municipalities have not done, but are
constitutionally required to do.
[171] In sum, the residents have simply failed to make out a case that Eskom owes a
duty to them, either directly or through the municipalities , to supply them with
electricity. They have not identified t he constitutional right that requires Eskom to
supply electricity above the contracted NMD. They do not rely upon ERA or the
Conversion Act as the basis upon which the reduction decision is rendered reviewable.
The residents have not confronted the probl ems of subsidiarity and the exhaustion of
internal remedies. The residents have also not, in these proceedings, sought to compel
the municipalities to carry out their constitutional duties. In these circumstances, the
proposed review has no prospects of success, and hence the residents have failed to
make out a case for interim relief pending that review.
The settlement argument
[172] I turn next to the settlement argument which formed the centrepiece of the
holding in Resilient SCA. Must Eskom continue to supply electricity to the
municipalities at the levels that predate the implementation of the reduction decision on
the basis that Eskom failed to comply with its duties to make every reasonable effort to
settle an intergovernmental dispute, as required by section 41(3) of the Constitution and
IRFA? The Supreme Court of Appeal in Resilient SCA held Eskom to have such duties
and the Supreme Court of Appeal in the present matter agreed.
[173] I have set out why it is that Eskom is an organ of state, at least as presently
constituted. Section 41(1)(h) of the Constitution requires Eskom and the municipalities
UNTERHALTER AJ
67
to co-operate by assisting and supporting one another. The Associations have not relied
on this provision, nor could they because , as I have observed , there can be no duty to
co-operate with a sphere of government that has abdicated its own constitutional
responsibilities. The burden of the Associations ’ case, both in the
Supreme Court of Appeal and before us , was to rely upon the settlement argument in
Resilient SCA.
[174] As stated above, section 41(3) of the Constitution places an obligation on an
organ of state involved in an intergovernmental dispute to make every reasonable effort
to settle the dispute by means of mechanisms and must exhaust all other remedies before
it approaches a court to resolve the dispute.124
[175] The mechanisms and procedures that have been provided to permit Eskom to
comply with its duty to take every reasonable effort to settle an intergovernmental
dispute are to be found in I RFA. Curiously, in terms of section 2 of IRFA, that Act
applies to the national government, all provincial governments, and all local
government; but it does not apply to any public institution that does not fall within the
national, provincial or local sphere of government. The state is Eskom’s sole
shareholder and the Minister of Public Enterprises has an important role to play in
agreeing to Eskom’s Shareholder compact. Whether that suffices to make Eskom part
of national government is a question I do not need to answer because I shall assume that
IRFA may, for the purposes of section 2, be of application to Eskom.
[176] There are two reasons that nevertheless render IRFA of no assistance to the case
of the residents. First, Chapter 4 of IRFA concerns the settlement of intergovernmental
disputes. But Chapter 4 does not apply to the settlement of specific intergovernmental
disputes in respect of which other national legislation provides resolution mechanisms
and procedures.125 That is precisely what s ection 30(1)(b) of ERA does. 126 NERSA
124 See [109] of the second judgment.
125 Section 39(1)(a) of IRFA.
126 In terms of section 30(1)(b)—
UNTERHALTER AJ
68
enjoys jurisdiction to settle disputes between a customer and a licensee, that is, between
the municipalities and Eskom. The central intergovernmental dispute in this matter is
between the municipalities and Eskom. Hence, IRFA does not apply to this dispute and
ERA does. Granted, this intergovernmental dispute has wider ramifications that may
involve provincial government and perhaps national government given the wholesale
failure of the municipalities. But Eskom is not in any intergovernmental dispute with
provincial or national government. Its dispute is with the municipalities, and that
dispute falls to be settled by NERSA under s ection 30(1)(b) of ERA. IRFA does not
apply to the dispute between Eskom an d the municipalities. Resilient SCA and the
Supreme Court of Appeal in the present matter fell into error on this score.
[177] The second reason that IRFA is of no assistance to the Associations is that in
terms of section 45(1) no organ of state may institute judicial proceedings in order to
settle an intergovernmental dispute , unless the dispute has been declared a formal
intergovernmental dispute in terms of s ection 41 of IRFA and all efforts to settle the
dispute, in terms of Chapter 4 of IRFA , were unsuccessful. Section 45(1) determines
how Chapter 4 of IRFA impact s upon judicial proceedings. However, the judicial
proceedings in the present matter were not initiated by Eskom but by the Associations.
There cannot be an intergovernmental dispute between the Associations and Eskom
because the Associations are not organs of state. Nothing in s ection 41(3) of
the Constitution, nor in IRFA, can non-suit Eskom in a claim initiated by private bodies
against it. The purpose of s ection 41 of the Constit ution, read with s ection 45(1) of
IRFA, is to require that those subject to section 41(3) make every reasonable effort to
settle their disputes before having recourse to the courts. What neither the Constitution
nor IRFA do is to non -suit Eskom in circums tances where a private party initiates
judicial proceedings against it. In the result, Eskom is entitled to defend itself in those
proceedings, and IRFA does not prevent it from doing so.
“[t]he Regulator must, in relation to any dispute arising out of this Act . . . if it is a dispute
between a customer or end user on the one hand and a licensee, registered person, a person who
trades, generates, transmits, or distributes electricity on the other hand, settle that dispute by
such means and on such terms as the Regulator thinks fit.”
UNTERHALTER AJ
69
[178] The settlement argument must therefore fail.
The balance of convenience
[179] The second judgment says the balance of convenience favours the Associations
because of the consequences that ha ve ensued from the reduction decisions .
Additionally, so it says, it is not as though in the interim Eskom cannot provide the
additional electricity. The second judgment does not weigh in the balance what Eskom
has set out in its affidavits.
[180] Eskom has indicated that in the past it was able to s upply electricity above the
NMD levels due to other customers not utilising their NMD allocations to the full.
Furthermore, in addition to the strain on the national grid, Eskom makes the case that
the municipalities’ infrastructure is dilapidated. For as long as this interim order
operates, Eskom will be compelled to supply electricity above the NMD, putting the
infrastructure and national grid under additional strain. Although Eskom has penalised
the municipalities for exceeding the NMD, this has not induced corrective action by the
municipalities. On the contrary, the municipalities continue to abdicate their duties.
[181] These are weighty considerations. So too are the terrible conditions that have
resulted in the quality of life of residents. There is serial hardship and inequity in that
residents who pay for electricity nevertheless suffer great detriment.
[182] I recognise that the harm to human health and well -being that is suffered by the
residents without interim relief may appear grea ter than our collective interest in the
integrity of the grid, the national availability of electricity and the solvency of Eskom.
But this equation fails to take account of the true source of the problem: that the
municipalities are not carrying out their constitutional and statutory duties. They must
be made to do so, and if they cannot, then, as the Consti tution requires, national and
provincial government must step in to see to the effective performance by the
UNTERHALTER AJ
70
municipalities of their functions (section 155(7) of the Constitution).127 This scheme of
constitutional responsibility should not be subverted by using interim orders sought
before the courts to assign the duties of the municipalities to Eskom.
[183] There is one further consideration that is systemic in nature. If Eskom is required
to discharge the duties of the municipalities in this case, it will in all likelihood be called
upon to do so across the hundreds of municipalities across the country that are in
disarray. As the cases to which we have been referred indicate, this process appears to
be well advanced. Eskom is a national asset upon which the welfare of the entire
country depends. What the residents seek in this case, replicated across the country,
will give rise to considerable risks for Eskom, and hence to our national welfare.
[184] The order of the High Court is a mandamus . It compels Eskom to supply
electricity above the NMD levels, to install the necessary infrastructure to ensure the
supply of this electricity and to provide ringfeed supply that will serve as a back-up
during emergencies (this is in respect of Ngwathe Municipality). Orders of this kind,
writ large across the country, have grave consequences.
[185] Taking these matters into account, I cannot find that the balance of convenience
favours the residents. But even if it did, absent a right to the supply of electricity from
Eskom, there is no basis upon which the int erim relief granted by the High Court can
stand.
Conclusion
[186] The interim relief that the Asso ciations sought and obtained in the High Court
was predicated upon their having a prima facie right to review the reduction decision.
The Associations have failed to establish that right. Furthermore, the Associations have
127 Section 155(7) states the following:
“The n ational government, subject to secti on 44, and the provincial governments have the
legislative and executive authority to see to the effective performance by municipalities of their
functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by
municipalities of their executive authority referred to in section 156(1).”
UNTERHALTER AJ / MADLANGA J
71
not sought relief under the regulatory scheme created by ERA, as they could and should
have done. Their review, as formulated, is stillborn under the principle of subsidiarity
and for failing to pursue an internal remedy. IRFA provides no basis to non-suit Eskom,
much less does it accord a right of supply to the residents.
[187] Accordingly, leave to appeal must be granted and the appeals upheld. The orders
of the Supreme Court of Appeal should be set aside and in their place the applications
of the residents must fall to be dismissed. As the residents have raised matters of
importance in the public interest, no costs should be awarded against them.
[188] Had I commanded the majority, I would have made the following order:
1. Leave to appeal is granted in both applications.
2. The appeal in respect of both applications is upheld.
3. The order of the Supreme Court of Appeal is set aside and substituted
with the following:
“The appeal is upheld. The order of the High Court is set aside and
replaced as follows:
In Case number 31813/20: The application is dismissed.
In Case number 35054/20: The application is dismissed.”
4. There is no order as to costs.
MADLANGA J (Mathopo J, Mhlantla J, Theron J and Tshiqi J concurring):
Introduction
[189] It is deeply disturbing that – through no fault of their own – the residents of
the Lekwa and Ngwathe Municipalities (residents) are subjected to a situation that
violates several of their fundamental rights protected in the Bill of Rights. A situation
that infringes their right to dignity, their right of access to healthcare services, their right
of access to sufficient water, their right to an environment that is not harmful to health
MADLANGA J
72
or well-being and the right to basic education. The residents add that there is even a
threat or real risk of infringement of the right to life. All this, as a direct co nsequence
of Eskom’s conduct. I say all this is happening through no fault on the part of the
residents because they say that the two municipalities have a prepaid electricity system
and that they (the residents) do pay their dues. That notwithstanding, they find
themselves caught up in the dispute between Eskom and the errant municipalities. A
dispute at the centre of which is the woeful and reprehensible failure by the
municipalities to pay Eskom for the electricity it supplies, and which I do not cond one
in the least. A classic, practical and painful manifestation of the saying, “When two
elephants fight, it is the grass that gets trampled.”
[190] At the outset, let me clarify that I make no holding on whether the residents have
a constitutional right to the supply of electricity by Eskom.128 I do not find it necessary
to make that holding because, even though the residents did assert that right, th ey rely
on several other constitutional rights and those other rights are dispositive of the matter.
I will focus only on those other rights.
[191] At issue is whether – pending the finalisation of review proceedings that the
residents intend instituting129 – this Court must allow the effects of Eskom’s conduct to
persist. Must this Court – at an interim stage – allow the residents to be subjected to
such abject misery and horrendous violation of fundamental rights? My colleague
Unterhalter AJ, whose judgment (first judgment) I have had the pleasure of reading,
says yes. I say no.
[192] Upfront let me highlight a fundamental flaw in my colleague’s reasoning. I do
so because that fundamental flaw permeates the first judgment and is central to the
conclusion my coll eague reaches on the merits. That flaw is the idea in the first
128 My approach does not derogate from Joseph above n 51 at paras 34-40, which determined that municipalities
bear an obligation to provide basic services, including the supply of electricity.
129 In terms of the order made by the High Court when granting the interim interdict, the review application had
to be launched not later than 30 October 2020. Purely for convenience, I refer to the intended or proposed review.
MADLANGA J
73
judgment that the residents should have asserted and proved the existence of a specific
constitutional right to be supplied with electricity by Eskom. As I demonstrate more
fully later, that idea is mistaken. The residents do not have to rely on any such
constitutional right. They assert several other rights protected by the Bill of Rights,
which I highlight above. Without question, the residents do enjoy constitutional
protection of those rights. Not even the first judgment can suggest otherwise. My
judgment does explain the relevance of these rights in the context of these proceedings
and the proposed PAJA review.
[193] Secondly, I must underscore a related proposition. On my reading, the
first judgment says there must be a direct correlation between what is sought to be
restored through an interim interdict and the right alleged to have been breached.
Putting it differently and relating it to the present matter, the first judgment suggests
that if the interim interdict seeks the restoration of electricity supply, the right alleged
to have been breached must be a right to the supply of electricity. And, continues the
first judgment, there must first be a duty resting on Eskom to supply the r esidents with
electricity and a breach of that duty before Eskom can be ordered to restore the supply
of electricity. To illustrate its point, the first judgment embarks on an extensive, but
basic, discussion on rights and duties and how they interface.
[194] The first judgment’s proposition fails to take into account the fact that multiple
rights protected in the Bill of Rights can be violated by a single action. And those rights
are not always squarely or perfectly correlative or corresponding. What informs the
need for their vindication is the fact of their violation. In the present matter it is the
sudden substantial reduction of electricity that resulted in the rights violations. The
logical corrective measure to address the rights violations is the reversal of the causative
act. That is, the restoration of the usual electricity supply. How else do you halt the
rights violations? Do you do nothing and throw up your hands in complete despair
whilst the violations continue unabated? If that were the ca se, the law would really be
the proverbial ass.
MADLANGA J
74
[195] This is less about the residents’ right to the supply of electricity by Eskom (which
they need not assert) and more about correcting Eskom’s legally impermissible action.
Why is Eskom’s conduct legally impe rmissible? In this matter the rights at issue are
rights that the residents enjoy in terms of the Bill of Rights. How these rights feature is
that Eskom’s conduct of substantially reducing electricity supply has resulted in their
infringement. Each infringement constitutes an “adverse” and “material and adverse”
effect envisaged in sections 1 and 4(1) of PAJA respectively. So, in accordance with
administrative law 101, we have here a decision by Eskom, an organ of state, made in
the exercise of a public power in terms of the ERA, which adversely affects the
residents’ rights. And exactly because of the deplorable conditions to which the
residents have been subjected as a result of Eskom’s decision, a fact which is accepted
by the first judgment, the dec ision does have a direct, external legal effect. It defies
logic how the causative act – the substantial reduction of electricity supply – should
suddenly be taken out of the equation and be completely irrelevant in redressing the
rights violations.
[196] With all this in mind, one will immediately see that the exposition in the
first judgment on rights, duties, rights holders, duty bearers and one or more other basic
concepts on rights is totally irrelevant.
[197] Thirdly, I wish to highlight that the first judgment erroneously concludes that
section 7(2) of the Constitution finds no application here. Before I go any furth er, let
me make the observation that I am able to reach the outcome I propose even without
reliance on section 7(2) of the Constitution. The residents aver that the administrative
action of the substantial reduction of electricity supply adversely affecte d several of
their fundamental rights protected in the Bill of Rights. They also say that the
administrative action was taken without following a fair procedure. That is sufficient
for purposes of a prima facie case founded on section 6(2)(c) of PAJA.130 As I say later,
it would be the height of illogicality if those same fundamental rights cannot ground the
130 I say more about this section later.
MADLANGA J
75
interim interdict sought pending finalisation of the intended PAJA review. I explain
later that the nature of a “right” that may be asserted for pur poses of a PAJA review is
quite expansive in its reach. It encompasses rights protected in the Bill of Rights. It is
exactly those rights that have been asserted by the residents.
[198] Adverting to section 7(2) of the Constitution – which I deal with purely because
of the first judgment’s insistence that Eskom owed no duty whatsoever to the
residents – the section decrees that “[t]he state must respect, protect, promote and fulfil
the rights in the Bill of Rights”. The basis of the erroneous insistence is t hat – as the
residents enjoy no constitutional right to the supply of electricity by Eskom – there is
no right to be respected, protected, promoted and fulfilled by Eskom in terms of
section 7(2).
[199] What is particularly relevant in section 7(2) is the obligation resting on the state
(which includes Eskom as an organ of state) to respect the rights in the Bill of Rights.
Of the four section 7(2) obligations (respect, protect, promote and fulfil), I single out
“respect” because I am not dealing with the matte r on the basis that Eskom bears a
direct, positive duty to supply electricity to the residents. The section 7(2) obligation
to respect the rights in the Bill of Rights entails that the state must refrain from
unreasonable conduct that results in the infri ngement of rights in the Bill of Rights.
I use the reasonableness standard based on the majority judgment in Glenister.131 There
Moseneke DCJ and Cameron J held that “[s]ection 7(2) implicitly demands that the
steps the state takes must be reasonable”.132
[200] The sudden and substantial reduction of the electricity supply which – according
to the residents was made without notice 133 – was the trigger that resulted in the
catastrophic infringements of the residents’ rights. Therein lies the basis of
131 Glenister v President of the Republic of South Africa [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7)
BCLR 651 (CC).
132 Id at para 194.
133 I explain the source of the need to give notice later.
MADLANGA J
76
the residents’ case that Eskom failed to respect several of their rights protected by the
Bill of Rights. In terms of section 7(2) of the Constitution the state (including Eskom)
bears an obligation to respect the rights in the Bill of Rights. If the conduct – howsoever
arising – has the effect of infringing the residents’ rights, that is the focal point. The
question is: is there a rights violation arising from Eskom’s conduct? I say there is. The
first judgment says there is not. Of course, it says so because i ts focus is on the wrong
right. When I return to this section 7(2) point later, I rely on Juma Musjid134 by way of
analogy.
[201] The first judgment misses all this because it fixates on the idea of constricting
the right the residents ought to assert and prove as being a specific constitutional right
to a direct supply of electricity by Eskom. That misconceived point of departure
naturally leads to a wrong outcome.
[202] I emphasise the substantial nature of the reduction of electricity supply because
of its catastrophic effect on the lives of the residents. So, this judgment is not about any
reduction. It is about a reduction, the eff ect of which is of the catastrophic nature I
describe shortly. The first judgment’s approach is quite absolutist on the idea that the
only relevant right is the residents’ right to a supply of electricity by Eskom. On that
approach, even if Eskom were su ddenly and without notice to effect a total blackout,
for example, for a month or more, affected end users would not be in a position to assert
rights protected in the Bill of Rights as a basis for a PAJA review of the decision in
terms of which the blackout was effected. To say that even under those circumstances
end users would have no right protected by the Bill of Rights to assert revolts against
my sense of constitutionalism. And it is not an answer to this rights question to say that
the residents may or might well have some other basis to challenge the decision.
[203] Fourthly and relatedly, as I said, the interim interdict at issue was granted
pending a PAJA review. What triggers an entitlement to a PAJA review is a decision
134 Governing Body of the Juma Musjid Primary School v Essay N.O. (Centre for Child Law and Another as
Amici Curiae) [2011] ZACC 13; 2011 (8) BCLR 761 (CC).
MADLANGA J
77
that adversely affects the rights of any person.135 Quinot and Maree point out that this
definition may not give all the necessary guidance to an administrator who is yet to take
a decision.136 That is so because “an administrator must know whether [their] decision
will impact adversely on the rights before that decision is taken in order to know
whether it is administrative action and would thus require the prescripts of PAJA”. 137
An elucidati on by Nugent JA in Grey’s Marine provides an answer. 138 He said,
correctly, “decision” was “probably intended rather to convey that administrative action
is action that has the capacity to affect legal rights”. 139 This has been accepted by
this Court.140 This, of course, does not serve to exclude a decision that does affect the
rights of persons.
[204] Axiomatically, Eskom’s decision to reduce electricity supply has adversely
affected the residents’ right to dignity, their right of access to healthcare services, their
right to an environment that is not harmful to health or well -being, the right to basic
education and the right to life. So, these rights bear relevance to the intended PAJA
review. As I show later, “rights” – as envisaged in the definition of
“administrative action” in section 1 of PAJA – has a wide meaning. That meaning
encompasses the rights asserted by the residents. These rights and the adverse effect on
135 Section 1 of PAJA defines “administrative action”, which is the basis of a PAJA review, as—
“any decision taken, or any failure to take a decision, by—
(a) an organ of state, when—
(i) exercising a power in terms of the Constitution or a provincial constitution;
or
(ii) exercising a public power or performing a public function in terms of any
legislation; or
(b) a natural or juristic person, other than an organ of state, when exercising a public power
or performing a public function in terms of an empowering provision,
which adversely affects the rights of any person and which has a direct, external legal effect”
136 Quinot and Maree “Administrative Action” in Quinot et al Administrative Justice in South Africa: An
Introduction 2 ed (Oxford University Press, Cape Town 2020) at 93.
137 Id (emphasis added).
138 Grey’s Marine above n 95.
139 Id at para 23.
140 See Allpay above n 101 at para 60; and Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro -Tech
Systems (Pty) Ltd [2010] ZACC 21; 2011 (1) SA 327 (CC); 2011 (2) BCLR 207 (CC) at para 37.
MADLANGA J
78
them are also of significance towards proving the first and second requirements for an
interim interdict.141
[205] That is the context in which the rights must be viewed. The first judgment
disregards this context when it says “ the residents cannot claim something as of right
which forms no part of the contents of the rights they invoke. And no i nvocation of
deplorable social and economic effects can cure this juridical lacuna”.142 There is no
lacuna. In fact, it would be perverse to have a situation where a litigant establishes a
right adversely affected by a decision for purposes of a PAJA revi ew, but is unable to
seek protection of that right by way of an interim interdict pending the PAJA review.
So, it manifestly makes sense that the unrestricted right protected by the Bill of Rights
can also be the same unrestricted right protectable in terms of an interim interdict. I do
not understand why the first judgment insists on restricting the nature of the right.
[206] Fifthly and crucially, my judgment does not hold that the residents are entitled
to a continued supply of electricity in quantities that guarantee that the rights they assert
are not infringed even in circumstances where Eskom is entitled to terminate or reduce
supply in terms of section 21(5) of the ERA. This judgment says no more than that, in
this instance, pending the determination o f the proposed PAJA review of Eskom’s
exercise of the section 21(5) power, the residents must be afforded interim relief that
directs Eskom to restore electricity supply to what it was before the reduction. This
observation is crucial, because it cuts acr oss what the first judgment perceives as an
ominous threat of a total collapse if Eskom is not allowed to reduce or terminate supply
where that is warranted. That is but a bogeyman and we must see it for what it is. The
residents’ case does not stand in the way of warranted section 25(1) reductions or
terminations of supply. Reductions or terminations must take place in a manner not
susceptible to a PAJA review; that is all that my judgment says . No bar at all to
warranted section 21(5) reductions or te rminations. Is the first judgment suggesting
141 The first and second requirements are: (a) a prima facie right even if it is open to some doubt; and (b) a
reasonable apprehension of irreparable and imminent harm to the right if an interdict is not granted.
142 First judgment at [123] (emphasis in original).
MADLANGA J
79
that Eskom is entitled to ride roughshod over the residents’ right to just administrative
action? Eskom as an organ of state bears a higher duty “to respect the law, to fulfil
procedural requirements and to tread respectfully when dealing with rights. . . . It must
do right, and it must do it properly”.143 Although said in a different context, these words
are apposite here as well.
[207] All that my judgment does is to say Eskom is perfectly entitled to avert any
ominous grid collapse that it perceives. But because ours is a constitutional state,
Eskom must do so in accordance with the Constitution and the law. It is neither above
the law, nor a law unto itself. From where the residents are sitting, alleging as they do
that Eskom did not give them notice, the substantial reduction came out of nowhere like
a bolt of lightning. On their version of the facts, which I do not understand to b e
contradicted by Eskom, they were denied even the very basic opportunity to brace
themselves for the substantial reduction in electricity supply. More importantly, they
were not afforded an opportunity to make representations to Eskom. The importance
of notice and an opportunity to make representations cannot be overemphasised. The
opportunity is so important that authority says it must not be denied, even where it is
thought the affected person cannot possibly have anything to say or that whatever they
may say is not likely to influence the decision. In John v Rees, Megarry J colourfully
and aptly put it thus:
“It may be that there are some who would decry the importance which the courts attach
to the observance of the rules of natural justice. ‘When something is obvious,’ they
say, ‘why force everybody to go through the tiresome waste of time in framing charges
and giving an opportunity to be heard? The result is obvious from the start.’ Those
who take this view do not, I think, do themselves justice. As everybody who has
anything to do with the law well knows, the path of the law is strewn with examples of
open and shut cases which, somehow, were not; of unanswerable charges which, in the
event, were completely answered; of inexplicable conduct which was fully explained;
of fixed and unalterable determinations that, by discussion, suffered change. Nor are
143 MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute [2014] ZACC 6; 2014
(3) SA 481 (CC); 2014 (5) BCLR 547 (CC) at para 82 (emphasis added).
MADLANGA J
80
those with any knowledge of human nature who pause to think for a moment likely to
underestimate the feelings of resentment of those who find that a decision against them
has been made without their being afforded any opportunity to influence the course of
events.”144
[208] This has been quoted with approval a few times by our courts. 145 Hoexter and
Penfold say:
“Procedural fairness . . . is concerned with giving people an opportunity to participate
in the decisions that will affect them, and – crucially – a chance of influencing the
outcome of those decisions. Such participation is a safeguard that not only signals
respect for the dignity and worth of the participants, but is also likely to improve the
quality and rationality of administrative decision -making an d to enhance its
legitimacy.”146
[209] I do not engage in the debate about the interface between sections 3 and 4
of PAJA.147 That is not necessary for the resolution of this matter. It is enough to say
that section 4(1) of PAJA proceeds from the premise that a fair procedure is necessary.
Section 4(1) provides for options open to an administrator “in order to give effect to the
right to procedurally fair administrative action” where the administrative action
materially and adversely affects the rights of the public. 148 The reduction decision,
affecting as it does two entire municipal areas, affected the public. And the resid ents
aver that Eskom took the decision without following a fair procedure. Administrative
action that is procedurally unfair is liable to be reviewed in terms of section 6(2)(c)
of PAJA. That is what the residents want to hold Eskom to. That much is cle ar, and it
matters not that they have pleaded more than just that.
144 John v Rees; Martin v Davis; Rees v John [1970] Ch 345 at 402D.
145 Examples of South African cases that have relied on this quote are S v Van der Walt [2020] ZACC 19; 2020
(2) SACR 371 (CC); 2020 (11) BCLR 1337 (CC) at para 28; My Vote Counts NPC v Speaker of the National
Assembly [2015] ZACC 31 (CC); 2016 (1) SA 132 (CC); 2015 (12) BCLR 1407 (CC) ( My Vote Counts I ) at
para 176; and Administrator, Transvaal v Zenzile [1990] ZASCA 108; 1991 (1) SA 21 (A) at 37E-F.
146 Hoexter and Penfold Administrative Law in South Africa 3 ed (Juta & Co Ltd, Cape Town 2021) at 502.
147 On that debate, see for example Brynard “Procedural Fairness to the Public as an Instrument to Enhance Public
Participation in Public Administration” (2011) 19 Administratio Publica 100.
148 Emphasis added.
MADLANGA J
81
[210] There is always something that informs administrative action. At times, just like
Eskom says is the case here, the administrative action may be meant to avert grave
consequences. But how ever grave the consequences, the functionary must follow the
fair process applicable to administrative action affecting the rights of the public set out
in section 4 of PAJA.149 The graveness of the consequences sought to be averted alone
can never be a licence for the functionary to act as if our law does not impose rights to
just administrative action. Of course, the form and extent of the fair process depends
on the nature and circumstances of what is at issue.
[211] At this stage of the proceedings, I say n o more than that the residents appear to
have made out a strong case for the review that is yet to be pursued in the High Court.
The review stage will likely, in the main, be about process, something that was protected
even by the common law under aparthe id. How much more under our constitutional
system that guarantees the right to just administrative action in section 33 of
the Constitution? The first judgment is an unfortunate retrograde step. It says there
need be no notice nor hearing in circumstanc es where the administrative action of a
state functionary or entity is sure to result in the most horrendous violations of rights
protected in the Bill of Rights. And few, very few, rights violations surpass what the
residents of the two municipalities have been subjected to. And courts must sit idly by
and not heed the call of the affected residents for appropriate redress.
149 Section 4(1), which is titled “[a]dministrative action affecting public” provides:
“In cases where an administrative action materially and adversely affects the rights of the public,
an administrator, in order to give effect to the right to procedurally fair administrative action,
must decide whether—
(a) to hold a public inquiry in terms of subsection (2)
(b) to follow a notice and comment procedure in terms of subsection (3);
(c) to follow the procedures in both subsections (2) and (3);
(d) where the administrator is empowered by any empowering provision to follow a
procedure which is fair but different, to follow that procedure; or
(e) to follow another appropriate procedure which gives effect to section 3.”
Subsections (2) and (3) provide for the process to be followed: if a public enquiry is to be conducted; and if a
notice and comment procedure is to be followed. Subse ction (4) provides for a departure from the process
provided for in subsections (1) to (3) if it is reasonable and justifiable to do so.
MADLANGA J
82
[212] The first judgment mischaracterises what I say when it suggests that I do little
more than engage in the “ invocation of deplorable social and economic effects ”.150 It
says this in the context of its central thesis that the residents have no right to assert
against Eskom.151 I identify rights that have been adversely affected152 by the decision
to reduce the supply of electricity or rights that have been materially or adversely
affected by that decision.153
[213] I do not hold that the intended review will succeed. I merely say that pending its
determination, the residents are entitled to interim relief. My judgment does not and
cannot question Eskom’s substantive entitlement, indeed power, to terminate or reduce
electricity under section 21(5) of the ERA.
[214] I deal with four of these issues more fully later. I highlight them upfront because
the eloquence in the first judgment may easily seduce one not to see the wood for the
trees. I will say very little on the point about the correlation between what is sought to
be restored through an interim interdict and the right alleged to have been breached.
Section 7(2)(a) and (c) of PAJA
[215] I next deal with what I consider to be a preliminary point. The first judgment
non-suits the residents on, amongst others, the basis that they ap proached the
High Court without first complying with the provisions of section 7(2)(a) of PAJA nor
showing that they are in a position to convince the reviewing Court to grant them
exemption in terms of section 7(2)(c) of PAJA from compliance with section 7(2)(a).
Section 7(2)(a) provides that “no court or tribunal shall review an administrative action
in terms of this Act unless any internal remedy provided for in any other law has first
150 First judgment at [122].
151 Id.
152 Definition of “administrative action” in section 1 of PAJA.
153 Section 4(1) of PAJA.
MADLANGA J
83
been exhausted”. 154 And section 7(2)(c) provides that “[a] court or tribunal may, in
exceptional circumstances and on application by the person concerned, exempt such
person from the obligation to exhaust any internal remedies if the court or tribunal
deems it in the interest of justice”.
[216] The substance of the first judgment’s point is that the residents ought not to have
approached the High Court for the relief sought without first exhausting what the
first judgment suggests are internal remedies under the ERA. The first judgment is
mistaken in this regard. The operative word in section 7(2)(a) is “review”. What was
before the High Court, the Supreme Court of Appeal and now this Court is not a review.
It is interim relief for an interdict sought by way of urgency pending a review. So, in
the proceedings for interim rel ief, section 7(2)(a) cannot feature because these
proceedings are not a PAJA review. It will feature in the review proceedings which, at
the time the urgent application for interim relief was launched, were yet to be instituted.
This reasoning applies equally to section 7(2)(c) as it concerns exemption from the need
to exhaust internal remedies in a review. As to what impact, if any, section 7(2)(a)
and (c) should have on the outcome of the application for an interim interdict is a
different matter. My response is directed at the fact that the first judgment suggests that
even in the present proceedings this section should non -suit the residents in the same
manner as it would in a PAJA review.
[217] The first judgment says my response is not an answer to its section 7(2) point.
That is so, claims the first judgment, because as part of showing – at the stage of interim
interdict proceedings – that they “have prospects of prevailing at the [intended]
review”,155 the residents must demonstrate what their case is on compliance with
section 7(2)(a). That means they must show either that they have exhausted internal
remedies, or that they have a basis on which they will seek, before the reviewing court,
section 7(2)(c) exemption from the obligation to exhaust intern al remedies. The effect
154 Emphasis added.
155 First judgment at [131].
MADLANGA J
84
of what the first judgment says is to require the application of two similar but different
preliminary requirements in interim interdicts sought in the context of PAJA reviews
that are either pending or still to be instituted.
[218] The second preliminary requirement, which – for purposes of the brief discussion
that follows – I refer to as the common law requirement, is one of the four requirements
for the grant of interim interdictory relief. It is that an applicant for an interim interdict
must show that there is no other satisfactory remedy. This being one of the requirements
for the grant of an interim interdict, whether it has been satisfied is axiomatically a
question for decision by the court determining the request for an interim interdict. I say
the two requirements are different because the common law requirement is about all
interim interdicts, not only those sought in the context of pending PAJA reviews or
PAJA reviews that are yet to be instituted. Also, the common law re quirement is
expansive in its reach in the sense that it brings within its sweep any other satisfactory
remedy. The limit is whether the remedy is satisfactory; a question the answer to which
depends on the circumstances of each case. And this remedy, may, but need not, be an
internal remedy. On the other hand, what need be exhausted before a court may
entertain a PAJA review are internal remedies. Hoexter and Penfold say “internal” and
“any other law” in the phrase “any internal remedy provided for in any other law” must
be “read restrictively to include only remedies specifically provided for in the
legislation with which the case is concerned and to exclude optional extras”.156 Lastly,
section 7(2)(a) of PAJA, in terms, applies to PAJA reviews, not interim interdicts.
That said, the two requirements are similar because both are about the need to exhaust
other remedies before relief can be granted.
[219] The first judgment insists t hat, in the case of an application for an interim
interdict pending a PAJA review, in addition to the requirement of showing that there
is no other satisfactory remedy, an applicant must show that, at the later PAJA review
156 Hoexter and Penfold above n 146 at 747. For this, the authors rely on Agri South Africa v Minister of Minerals
and Energy; Van Rooyen v Minister of Minerals and Energy 2010 (1) SA 104 (GNP) at paras 20-2; and Van der
Westhuizen v Butler 2009 (6) SA 174 (C) at 188B-C.
MADLANGA J
85
proceedings, section 7(2)(a) will not be an impediment. To my mind, this question is
not as simple as the first judgment makes it out to be. Without making any decision in
this regard, I will point out possible difficulties that lie in the path of the first judgment’s
approach. And I put it no higher than possible difficulties.
[220] First, the first judgment’s approach is unduly restrictive. On its own, the
common law requirement is already burdensome to the right of access to court.157 With
the first judgment’s insistence on the additiona l requirement, this burden is doubled.
Put differently, the result of the first judgment’s approach, implicitly insisting as it does
on these two preliminary requirements, is that the attainment of interim interdicts
pending PAJA reviews is a tall order. A tall order that has a negative impact on the
fundamental right of access to courts guaranteed in section 34 of the Constitution. This,
in circumstances where section 7(2)(a) says nothing about interim interdicts sought
pending PAJA reviews.
[221] An interpr etation that says section 7(2)(a) of PAJA does not apply to
applications for interim interdicts pending PAJA review applications better conduces to
the enjoyment of the right of access to courts. And there is precedent – albeit in the
context of section 7(2)(c) of PAJA – that upheld a preference for an interpretation that
better protects the right of access to courts. That is the case of Earthlife Africa where
Griesel J held that—
“in case of doubt in relation to either of the two criteria laid down by section 7(2)(c) of
PAJA, the Court should, in my view, incline to an interpretation of the facts and the
law that promotes, rather than hampers, access to the courts.”158
157 In OUTA above n 54 at para 45 this Court held:
“[T]he test [for the grant of interim relief] must be applied cognisant of the normative scheme
and democratic principles that underpin our Constitution. This means that when a court
considers whether to grant an interim interdict it must do so in a way that promotes the objects,
spirit and purport of the Constitution.”
158 Earthlife Africa (Cape Town) v Director-General: Department of Environmental Affairs and Tourism 2005 (3)
SA 156 (C) at para 67.
MADLANGA J
86
[222] The Court adopt ed this permissive approach in the context of section 7(2)(c)
which already seeks to ameliorate the restrictive effect of section 7(2)(a). One would
have thought that this permissive approach must apply with more force in the context
of section 7(2)(a), which is more restrictive.
[223] Second, in Gavric159 Theron J effectively held that in exceptional circumstances
an applicant’s failure to apply for an exemption in terms of section 7(2)(c) may be
excused. I am not unmindful of the fact that – on the Court’s holding – the Gavric facts
were highly exceptional. But the point of substance is that there may be any number of
exceptional circumstances. That being the case, non-suiting an applicant at the stage of
the application for an interim interdict for failure to show that there is enough that will
convince the reviewing court to grant a section 7(2)(c) exemption denies the applicant
the possibility of an exemption even where there is no application.
[224] Third, the purpose of the section 7(2)(a) requirement is relevant to the
interpretative exercise. That purpose, which is to ensure that the administrative process
is not undermined, was elucidated thus by Mokgoro J in Koyabe:
“[A]pproaching a court before the higher administrative body is given the opportunity
to exhaust its own existing mechanisms undermines the autonomy of the administrative
process. It renders the judicial process premature, effectively usurping the executive
role and function. The scope of administrative action extends over a wide range of
circumstances, and the crafting of specialist adm inistrative procedures suited to the
particular administrative action in question enhances procedural fairness as enshrined
in our Constitution.”160
[225] This purpose will not in the least be undermined if section 7(2)(a) of PAJA plays
no role in the determinat ion of applications for interim relief pending PAJA reviews.
At the stage of review, an applicant may be non -suited in terms of section 7(2)(a) for
159 Gavric v Refugee Status Determination Officer [2018] ZACC 38; 2019 (1) SA 21 (CC); 2019 (1) BCLR 1
(CC).
160 Koyabe above n 50 at para 36.
MADLANGA J
87
failure to exhaust internal remedies before seeking review. Or the reviewing court may
refuse a section 7(2)(c) application for the exemption of non -compliance with
section 7(2)(a). And when all this is done at the review stage, the purpose of
section 7(2)(a) will have been served. On the contrary, the additional requirement
insisted upon by the first judgment serves no purpose other than to make the attainment
of an interim interdict pending a PAJA review more difficult. I say so because, as I
highlight shortly, the facts of this case cry out for the grant of the interim mandatory
interdict sought by the re sidents. And – for reasons proffered later – I see no legal
impediment either. But the first judgment says the residents cannot get the interdict.
On the facts that I say cry out for the interdict, the residents accurately describe what
has happened as a “human catastrophe”. And it is. What stands in the way of the grant
of the otherwise well -deserved interim interdict are only the first judgment’s
impermissibly restrictive approach to the nature of the constitutional right to which the
application is pegged and technical hurdles, including the additional section 7(2)
requirement, imposed by the first judgment.
[226] Fourth, in Bato Star O’Regan J accepted the possibility that review proceedings
and the exhaustion of internal remedies may run concurrently. In her own words:
“[A] court minded to grant permission to a litigant to pursue the review of a decision
before exhausting internal remedies should consider whether the litigant should be
permitted simultaneously to pursue those internal remedies. In con sidering this
question, a court needs to ensure that the possibility of duplicate or contradictory relief
is avoided.”161
[227] All that said, I leave open the question of what role, if any, section 7(2)(a) and (c)
must play in proceedings for an interim interdi ct pending a PAJA review. I do so
because there is an easy way of dealing with the issue raised by the first judgment. The
residents have pleaded that there was simply no satisfactory remedy other than an urgent
approach to court for an interim interdict. The High Court’s judgment-call on that was
161 Bato Star above n 48 at para 17.
MADLANGA J
88
obviously that, indeed, there was no other satisfactory remedy. Put differently, the
High Court was satisfied that the requirement that an applicant for an interim interdict
must demonstrate the absence of any other satisfactory remedy had been met. Plainly
then, it would be incongruous to suggest that, despite there being no satisfactory remedy
other than the grant of an interim interdict, following the ERA internal remedial
processes would somehow be an exce ption and require exhaustion as a satisfactory
remedy.
[228] When the proceedings for an interim interdict were instituted, the ERA processes
were a possible remedy. But, on the basis of the residents’ averment that there was no
other satisfactory remedy, that must obviously mean that the residents are saying
the ERA processes were not options that they could invoke. Legal remedies exist as a
matter of substantive law.162 But whether – in a given case – it is practical to call in aid
any of those remedies is a factual question. Eskom does not appeal against the finding
that there was no other satisfactory remedy. It is appealing only the legal question
whether, before the High Court, the residen ts – as a matter of law – ought to have
addressed the section 7(2)(a) and (c) issue. Thus, it is not open to this Court to consider
the factual question whether it was practical for the residents to pursue other remedies,
including the ERA processes. Tha t is a factual question that has been determined by
the High Court, and it is not on appeal before us. The first judgment does grapple with
this factual question and concludes that there was no evidence on it. That is an idle
exercise as it is not open to the first judgment to do so.
[229] In sum, even if the ERA processes could have constituted a type of satisfactory
remedy, they cannot now stand alone and somehow ground Eskom’s appeal under
section 7(2)(a) and (c) of PAJA.
162 I do not necessarily discount the possibility of some remedies being sourced from adjectival law.
MADLANGA J
89
Subsidiarity
[230] The first judgment al so invokes the principle of subsidiarity. It says that
the ERA comprehensively regulates the generation, transmission and distribution of
electricity and the relationships of supply. These relationships include the attendant
rights and obligations, insofar as they relate to municipalities and Eskom which supplies
bulk electricity to municipalities and to municipalities (as Eskom’s customers) and
residents of municipalities (as end users).163 The first judgment then makes the
observation that, based on this Court’s jurisprudence, the principle of subsidiarity has a
number of applications.164 And—
“[o]ne application of the principle is that a litigant cannot directly invoke a
constitutional right when legislation has been enacted to give effect to that righ t. The
litigant must either challenge the constitutionality of the legislation so enacted or rely
upon the legislation to make its case.”165
[231] The first judgment concludes that where Parliament has legislated as
comprehensively as it has done in the ERA, the residents cannot look outside the ERA
to assert rights against Eskom. In accordance with the principle of subsidiarity, the
residents must assert their rights in terms of the ERA or challenge its constitutionality,
which they have not done. Finally, th e first judgment non-suits the residents on the
basis that “ [t]he principle of subsidiarity excludes the relief that the residents have
sought in their review, and hence precludes the grant of the interim relief that they have
obtained”.166
[232] The first judgment is wrong in non -suiting the residents on this basis. In the
minority judgment in My Vote Counts I, Cameron J has this to say:
163 First judgment at [147] to [154].
164 Id at [149].
165 Id.
166 First judgment at [150].
MADLANGA J
90
“Subsidiarity denotes a hierarchical ordering of institutions, of norms, of principles, or
of remedies, and signifies that the central institution, or higher norm, should be invoked
only where the more local institution, or concrete norm, or detailed principle or remedy,
does not avail. The word has been given a range of meanings in our constitutional law.
It is useful in considering the scope of subsidiarity, and Parliament’s reliance on it – to
have them all in mind.”167
[233] The My Vote Counts I minority judgment proceeds to instance how the principle
of subsidiarity has been applied by this Court. It first refers to the now discarded
Mhlungu principle that if a case can be decided without reliance on a constitutional
issue, it should be so deci ded.168 Cameron J explains that this principle was crafted at
the time when “the Appellate Division [now the Supreme Court of Appeal] had no
constitutional jurisdiction, and this Court had constitutional jurisdiction only”. 169 It
makes the point that the a bandonment of the Mhlungu principle has had the effect of
promoting “the primacy of constitutional approaches to rights determination”.170 But it
cautions that this does not mean—
“resort to constitutional rights and values may be freewheeling or haphazard. The
Constitution is primary, but its influence is mostly indirect. It is perceived through its
effects on the legislation and the common law – to which one must look first.”171
[234] The mi nority judgment next renders the most common articulation of the
principle of subsidiarity, which is about what Klare calls an “effect giving statute”,172 a
tag I adopt for convenience. So called because it concerns statutes that give effect to
constitutional rights. The articulation is that—
167 My Vote Counts I above n 145 at para 46.
168 Id at para 50. See the original statement of the principle in S v Mhlungu [1995] ZACC 4 ; 1995 (3) SA 867
(CC); 1995 (7) BCLR 793 (CC) at para 59. See also Zantsi v Council of State, Ciskei [1995] ZACC 9; 1995 (4)
SA 615 (CC); 1995 (10) BCLR 1424 (CC) at para 3 where the Mhlungu principle was approved.
169 My Vote Counts I above n 145 at para 50.
170 Id at para 51.
171 Id at para 52.
172 Klare “Legal Subsidiarity and Constitutional Rights: A Response to AJ van der Walt” (2008) 1 Constitutional
Court Review(2008) 129 at 140.
MADLANGA J
91
“a litigant cannot directly invoke the Constitution to extract a right he or she seeks to
enforce without first relying on, or attacking the constitutionality of, legislation enacted
to give effect to that right. . . . Once legislation to fulfil a constitutional right exists,
the Constitution’s embodiment of that right is no longer the prime mechanism for its
enforcement. The legislation is primary. The right in the Constitution plays only a
subsidiary or supporting role.”173
[235] What was at issue in My Vote Counts I was an effect giving statute.
[236] I quote extensively from the minority judgment because the majority did not take
issue with any of these holdings.174 In Masuku, Khampepe J held, quoting the minority
in My Vote Counts I:
“Broadly, the principle of subsidiarity is the judicial theory whereby the adjudication
of substantive issues is determined with reference to more particular, rather than more
general, constitutional norm s. The principle is based on the understanding that,
although the Constitution enjoys superiority over other legal sources, its existence does
not threaten or displace ordinary legal principles and its superiority cannot oust
legislative provisions enacte d to give life and content to rights introduced by
the Constitution. In simple terms, the principle can be summarised thus:
‘Once legislation to fulfil a constitutional right exists,
the Constitution’s embodiment of that right is no longer the prime
mechanism for its enforcement. The legislation is primary. The right
in the Constitution plays only a subsidiary or supporting role.’
Ultimately, the effect of the principle is that it operates to ensure that disputes are
determined using the specific, often more comprehensive, legislation enacted to give
effect to a constitutional right, preventing them from being determined by invoking
the Constitution and relying on the right directly, to the exclusion of that legislation.”175
173 My Vote Counts I above n 145 at para 53.
174 Id at paras 121-2, in particular.
175 South African Human Rights Commission obo South African Jewish Board of Deputies v Ma suku
[2022] ZACC 5; 2022 (4) SA 1 (CC); 2022 (7) BCLR 850 (CC) at para 102.
MADLANGA J
92
[237] Without claiming to be exhaustive, in addition to My Vote Counts I and Masuku,
I have gone through other judgments of this Court that deal with the principle of
subsidiarity.176 In New Clicks ,177 SANDU,178 Pillay,179 Mazibuko,180
PFE International,181 De Lange,182 Thubakgale183 and Residents of Industry House 184
the mention of, or pronouncement on, the principle of subsidiarity was about effect
giving statutes. Although Bato Star185 did not mention the principle by name, “[i]t was
the first decision to give explicit recognition to the doctrine of subsidiarity ”.186 In that
case this Court held that section 6 of PAJA has codified the grounds of review of
administrative action and that, therefore, one could no longer rely on the common law
as a basis for review. 187 Of importance, the context was section 33(3) of the
Constitution, which provides that national legislation must be enacted to give effect to
the rights contained in section 33(1) and (2)188 and that such legislation must, inter alia,
“provide for the revi ew of administrative action by a court or, where appropriate, an
independent and impartial tribunal”. In this sense, Bato Star was also about effect
giving legislation.
176 I have been assisted in this exercise by a collection of a number of these judgments in the My Vote Counts I
minority judgment.
177 Minister of Health v New Clicks South Africa (Pt y) Ltd (Treatment Action Campaign and Another as
Amici Curiae) [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC) at paras 92-7 and 436-7.
178 South African National Defence Union v Minister of Defence [2007] ZACC 10; 2007 (5) SA 400 (CC); 2007
(8) BCLR 863 (CC) at paras 51-2.
179 MEC for Education , KwaZulu-Natal v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99
(CC) at paras 39-40.
180 Mazibuko above n 42 at para 73.
181 PFE International v Industrial Development Corporation of South Africa Ltd [2012] ZACC 21; 2013 (1) SA
1 (CC); 2013 (1) BCLR 55 (CC) at paras 4 and 32.
182 De Lange v Methodist Church [2015] ZACC 35; 2016 (2) SA 1 (CC); 2016 (1) BCLR 1 (CC) at para 53, citing
with approval My Vote Counts I above n 145 at paras 122, 160 and 180.
183 Thubakgale v Ekurhuleni Metropolitan Municipality [2021] ZACC 45; 2022 (8) BCLR 985 (CC) at para 178.
184 Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg v Minister of Police [2021]
ZACC 37; 2022 (1) BCLR 46 (CC) at para 112.
185 Bato Star above n 48 at paras 21-6.
186 My Vote Counts I above n 145 at fn 100.
187 Bato Star above n 48 at para 25.
188 Section 33(1) provides that “[e]veryone has the right to administrative action that is lawful, reasonable and
procedurally fair”. And section 33(2) stipulates that “[e]veryone whose rights have been adversely affected by
administrative action has the right to be given written reasons”.
MADLANGA J
93
[238] Even the minority judgment of Jafta J in Sali dealt with the principle of
subsidiarity in the context of legislation giving effect to a right in the Bill of Rights.189
[239] Recently in Women’s Legal Centre Trust 190 this Court applied the principle of
subsidiarity in a context that was unrelated to an effect giving statute. It held that,
despite its holding that the Marriage Act 191 and Divorce Act 192 were defective,
under-inclusive and had given rise to a number of rights violations, these Acts were
legislation nonetheless. It was inappropriate to hold that the state was obliged by
section 7(2) to legislate only in respect of Muslim marriages. The appropriate course
was to challenge the constitutionality of the legislation and not merely to allege that the
state had failed to fulfil a duty to legislate. Tlaletsi AJ completed the picture thus:
“If, in the face of legislation alleged to violate constitutional rights, litigants could seek
to compel the state to legislate on the basis of section 7(2) directly, without challenging
the legislation itself, this would permit litigants to by-pass the relevant legislation, and
rely directly on the Constitution. Such a course is exactly what the principle of
subsidiarity cautions against. Accordingly, given that the state has, albeit deficiently,
enacted legislation with regards to matters of marriage and divorce, the litigants are not
permitted to compel the legislature to pass legislation purely by virtue of
section 7(2).”193
[240] Lastly, this Court invoked th e principle of subsidiarity in the context of
inter-country adoptions. This was in the case of AD.194 Sachs J held that the principle
of subsidiarity was a core factor that governed inter -country adoptions and had to be
189 Sali v National Commissioner of the SA Police Service [2014] ZACC 19; (2014) 35 ILJ 2727 (CC); 2014 (9)
BCLR 997 (CC) at para 4 and fn 2.
190 Women’s Legal Centre Trust v President of the Republic of South Africa [2022] ZACC 23; 2022 (5) SA 323
(CC) at para 82.
191 25 of 1961.
192 70 of 1979.
193 Women’s Legal Centre Trust above n 190 at para 82.
194 AD v DW (Centre for Child Law as Amicus Curiae; Department for Social Development as Intervening Party)
[2007] ZACC 27; 2008 (3) SA 183 (CC); 2008 (4) BCLR 359 (CC). I touch on AD to complete the picture.
Otherwise, it is not relevant to the issue at hand.
MADLANGA J
94
adhered to.195 The judgment explains that the principle is sourced from article 17 of the
United Nations Declaration on Social and Legal Principles Relating to the Protection
and Welfare of Children, with special reference to Foster Placement and Adoption
Nationally and Internationally.196 Article 17 provides:
“If a child cannot be placed in a foster or an adoptive family or cannot in any suitable
manner be cared for in the country of origin, intercountry adoption may be considered
as an alternative means of providing the child with a family.”197
[241] With the exception of Women’s Legal Centre Trust and AD, mention of, or
pronouncements on, the principle of subsidiarity are about effect giving statutes. It is
unsurprising, therefore, that the first judgment also places reliance on the “[o]ne
application of the principle [that says] a litigant cannot directly invoke a constitutional
right when legislation has been enacted to give effect to that right”. 198 The legislation
that the first judgment mentions is the ERA. A difficulty that I have is that no
explanation is given as to the constitutional right the ERA supposedly gives effect to.
Without that explanation, the point made by the first judgment is incomplete.
[242] The lack of explanation aside, the long title of the ERA and section 2, which sets
out the objects of the ERA, suggest that this Act has nothing to do with giving effect to
a constitutional right. 199 I could not pick up any part of the ERA that suggests the
contrary.
195 Id at para 49.
196 Id at para 37.
197 Id. Of course, there the Court emphasised the fact that in inter -country adoptions the principle is a factor that
is subject to the inju nction contained in section 28(2) of the Constitution that the best interests of the child are
paramount.
198 First judgment at [149].
199 The long title of the ERA reads:
“To establish a national regulatory framework for the electricity supply industry; to make the
National Energy Regulator the custodian and enforcer of the national electricity regulatory
framework; to provide for licences and registration as the manner in which generation,
transmission, distribution, trading and the import and export of electricity are regulated; to
regulate the reticulation of electricity by municipalities; and to provide for matters connected
therewith.”
And section 2 provides:
MADLANGA J
95
[243] I am well aware that, in addition to this Court’s jurisprude nce, there is a lot of
learning on the principle of subsidiarity.200 I do not deal with what all this learning says
on the principle. Suffice it to say Murcott and Van der Westhuizen make the point that
the principle must apply even in instances involving legislation that does not give effect
to a constitutional right or is not in any other way the result of a constitutional
injunction.201 I am paraphrasing. How the principle must apply is that where there is
legislation of the nature I have just described that covers the field on a given subject, a
legal remedy must be sought from that legislation and not from other “non -specific”
legislation or the common law. The effect of this would be that in the instant matter the
residents would be precluded from seeking a review of the reduction decision under
PAJA and that, instead, they would have to seek redress under the ERA.
[244] I do not express a view one way or the other on what the authors say. What I say
instead is that thus far this Court has not pronounced on this point. If this point is to
have any impact at all on the case of the residents, at worst for them it would do no
“The objects of this Act are to—
(a) achieve the efficient, effective, sustainable and orderly development and operation of
electricity supply infrastructure in South Africa;
(b) ensure that the interests and needs of present and future electricity customers and end
users are safeguarded and met, having regard to the governance, efficien cy,
effectiveness and long-term sustainability of the electricity supply industry within the
broader context of economic energy regulation in the Republic;
(c) facilitate investment in the electricity supply industry;
(d) facilitate universal access to electricity;
(e) promote the use of diverse energy sources and energy efficiency;
(f) promote competitiveness and customer and end user choice; and
(g) facilitate a fair balance between the interests of customers and end users, licensees,
investors in the electricity supply industry and the public.”
200 See, for example, Currie and De Waal Bill of Rights Handbook 6 ed (Juta & Co, Cape Town 2016) at 12-3;
Du Plessis “Interpretation” in Woolman et al (eds) Constitutional Law of South Africa Service 6 (2008) at 152-3
and 158; Van der Walt “Normative Pluralism and Anarchy: Reflections on the 2007 Term” (2008)
1 Constitutional Court Review 77; Klare “Legal Subsidiarity and Constitutional Rights: A Reply to AJ van der
Walt” (2008) 1 Constitutional Court Review 129; Du Plessis “Subsidiarity: What’s in the Name for constitutional
interpretation and adjudication?” (2006) 17 Stellenbosch Law Review 207; Murcott and Van der Westhuizen “The
Ebb and Flow of the Application of the Principle of Subsidiarity – Critical Reflections on Motau and My Vote
Counts” (2015) 1 Constitutional Court Review 7; Quinot et al above n 136 at 135, 333 and 399; and Hoexter and
Penfold above n 146 at 149-51.
201 Murcott and Van der Westhuizen above n 200 at 48 and 61-4.
MADLANGA J
96
more than cast some doubt on their prima facie right. A definitive holding must be left
for the reviewing court and, if there be appeals, appellate courts thereafter. It would be
mistaken for this Court, at this stage, to make a final decision on the issue. And, because
there has not been a definitive holding one way or the other on the point, section 34 of
the Constitution202 entitles the residents to seek appropriate relief in terms of section 38
of the Constitution.203 Although, as the first judgment says, the ERA is quite expansive
in its reach, it is unlike PAJA, which displaced common law grounds of review and
codified them under section 6.204
[245] These are not proceedings for a final interdict, which requires a showing of:
a clear right; an injury that has occurred , is occurring or is reasonably apprehended;
and absence of any other satisfactory remedy. 205 The first judgment’s categorical and
definitive approach pitches the standard too high. It does not recognise that all that need
be proven at this stage is a prima facie right that may be open to some doubt. It seems
to me the first judgment requires the showing of a clear right. That cannot be. This is
uncharted territory. And whether subsidiarity should finally bar a PAJA review must
be decided by the reviewing court.
[246] For completeness, in case it may not altogether be clear why the requirement of
a prima facie right is relevant to a discussion on subsidiarity, let me offer an
explanation. The point is that if subsidiarity were to non -suit the residents, that would
mean as a matter of substantive law, the rights they assert could not be vindicated by
way of a r eview under PAJA. At the stage of proceedings for an interim interdict,
subsidiarity would serve to show that the proposed review would be a non-starter. That
202 Section 34 provides that “[e]veryone has the right to have a dispute that can be resolved by the application of
law decided in a fair public hearing before a court or, where appropriate, another independent and impartial
tribunal or forum”.
203 Section 38 provides that “[a]nyone listed in this section has the right to approach a competent court, alleging
that a right in the Bill of Rights has been infringed or threated, and the court may grant appropriate relief, including
a declaration of rights”. The section then lists categories of persons who have standing in various circumstances.
204 See Bato Star above n 48 at para 25.
205 See Setlogelo above n 57.
MADLANGA J
97
is, the residents would have no right or entitlement to it. They would lack a prima facie
right. As I say, here we cannot reach that final conclusion.
[247] The first judgment says that it is not open to me to decline to decide the question
whether the principle of subsidiarity precludes the residents from seeking a review of
the reduction decision un der PAJA and requires, instead, that they must seek redress
under the ERA. It reasons that this is a legal question and that the legal rule that a
prima facie right may be open to some doubt relates to evidentiary matter, not legal
questions. I disagree. It is so that in Webster v Mitchell ,206 the leading and oft cited
case on interim interdicts, what was at issue was factual matter. Right from the start the
case deals with Molteno Bros 207 where – according to Webster v Mitchell – the
respondent in Molteno Bros “had put before the Court on the issue concerned merely a
bare denial, so that the learned judge was concerned not with the probabilities between
two contradictory versions, but with whether the inherent probabilities of the appellant’s
case were such that the right was prima facie established”.208 Yes, that is plainly about
facts.
[248] In Webster v Mitchell itself Clayden J also invoked the idea of a right’s openness
to some doubt in the context of factual matter. 209 What was at issue was whether the
applicant had placed before the court enough evidentiary material to establish
206 Webster v Mitchell above n 58.
207 Molteno Bros v South African Railways 1936 AD 321.
208 Webster v Mitchell above n 58 at 1187.
209 He held at 1189:
“The use of the phrase ‘ prima facie established though open to some doubt’ indicates I think
that more is required than merely to look at the allegations of the applicant, but something short
of a weighing up of the probabilities of conflicting versions is required. The proper manner of
approach I consider is to take the facts as set out by the applicant, together with any facts set up
by the respondent which the a pplicant cannot dispute, and to consider whether, having regard
to the inherent probabilities, the applicant could on those facts obtain final relief at a trial. The
facts set up in contradiction by the respondent should then be considered. If serious do ubt is
thrown on the case of the applicant he could not succeed in obtaining temporary relief, for his
right, prima facie established, may only be open to ‘some doubt’. But if there is mere
contradiction, or unconvincing explanation, the matter should be left to trial and the right be
protected in the meanwhile.”
Of course, the Court held that whether there should be interim protection of the right was subject to “the respective
prejudice in the grant or refusal of interim relief”.
MADLANGA J
98
prima facie ownership of the horse that was the subject of the application. This says
nothing about whether the openness of a right to some doubt can be applied to legal
questions. Contrary to the first judgment’s categorical statement that this applies only
to factual issues, this question has been the subject of intense judicial debate, with views
being expressed for and against either position. 210 An example of a judgment that
expressed disagreement with the idea of a judge at an interim stage approaching a legal
question “half-heartedly” is Fourie.211 Amongst others, Viljoen J said the later decision
of a legal question half -heartedly decided earlier by another judge would be at odds
with the rule on res judicata, would unnecessarily increase costs, and would cause
embarrassment to the judge considering the matter later, if they want to differ from the
earlier judge’s view. 212 Goldstein J differed in Tony Rahme Marketing Agenci es,
saying:
“Whilst there may be situations where a Court having to decide on an interim interdict
has sufficient time and assistance to arrive at a final view on a disputed legal point – in
which event it probably ought to express a firm view in order to save costs – situations
of urgency arise when decisions on legal issues have to be made without the judicial
officer concerned having had the time to arrive at a final considered view. In such a
situation [they are] surely forced to express only a prima facie view. I cannot see how
the expression of such a view and the grant of interim relief only would conflict with
the principles of res judicata. I also see no embarrassment in an urgent Court judge
being overridden by a trial judge . . . . The interlocutory decis ions of colleagues, and
indeed those of our own, are not binding at later stages of the proceedings and should,
and I trust, do yield easily to persuasive arguments indicating error or oversight.”213
210 An example of a case t hat said this question applies only to factual questions is Ivoral Properties (Pty) Ltd v
Sheriff, Cape Town 2005 (6) SA 96 (C) at para 37. And examples of those that held that it is not confined to
evidentiary matter are V&A Waterfront Properties (Pty) L td v Helicopter and Marine Service (Pty) Ltd [2004] 2
All SA 664 (C); Beecham Group Limited v BM Group (Pty) Limited 1976 BP 572 (T) at 579-81; and Mariam v
Minister of the Interior 1959 (1) SA 213 (T) at 218.
211 Fourie v Olivier 1971 (3) SA 274 (T).
212 Id at 285E-G.
213 Tony Rahme Marketing Agencies SA (Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council
1997 (4) SA 213 (W) at 215-6.
MADLANGA J
99
[249] In Geyser Van Oosten J held that “a legal issue should only be decided at the
interlocutory stage of the proceedings if it would result in the final disposal of either the
matter as a whole or a particular aspect thereof”.214
[250] I take the view that it does not help to be categorical one way or the other on this.
The approach to be adopted must be dictated by the circumstances of each case. Sight
should not be lost of the fact that a substantial number of applications for interim relief
are brought by way of urgency. There is much to be said for the view that a judge sitting
in a busy urgent court does not have as much time as does a judge who hears trials or
decides non -urgent opposed matters. Although each judge must strive for the
attainment of the best possible outcome in the circumstances, this reality cannot be
ignored. Of course, this is not an invitation to judges considering urgent interim
interdicts to avoid deciding legal questions which – with the necessary diligence – are
capable of definitive decision.
[251] There are legal questions that are capable of easy resolution to any judge worth
their salt. Those must be decided definitively. If, as a matter of law, the right asserted
by the applicant for interim relief is held not to exist at all, that will be the end of the
matter. And that will result in a saving in costs as there will be no subsequent litigation.
On the other hand, the legal right may definiti vely be held to exist as a matter of law
and all that may remain for determination at the later proceedings may be whether, on
the facts, the applicant has made out a case. There may also be those circumstances
where – either because of a combination of f actors that include the complexity of the
legal question, its novelty, little or no assistance from the litigants’ argument, the speed
with which the outcome is required and lack of sufficient time for the judge to consider
the matter as best they can – the judge may not be in a position to reach a definitive
decision on a legal question. In Johannesburg Municipal Pension Fund Malan J held:
“Impressive and erudite arguments were addressed to me on all these grounds. I cannot
do justice to all the conside rations referred to. All the issues referred to involve
214 Geyser v Nedbank Ltd: In re Nedbank Ltd v Geyser 2006 (5) SA 355 (W) at para 9.
MADLANGA J
100
‘difficult questions of law’ and none of them can be described as ‘ordinary’. Nor is it
desirable to rule at this interim stage that there is no prospect of success on any of these
bases of review. The issues are simply too involved (‘a serious question to be tried’)
and of such gravity that they cannot be, and should not be, disposed of in these interim
proceedings. The city has disavowed reliance on the notices purporting to amend
Notice 6766 and I do not intend dealing with their validity, but accept for the purposes
of this judgment the applicants’ contentions.”215
I see no legal impediment to a judge in such circumstances reaching a conclusion that
says prima facie there is enough pointing to t he determination of the legal question in
the applicant’s favour in the envisaged later proceedings.
[252] Coming to the present question, if what I conclude above was open to the Court
determining the application for interim relief, it is open to this Court too. After all, this
matter is before us on appeal against what that Court decided. In addition, as my
discussion of the question shows, it is complex, novel and, although all counsel
presented good arguments on the case in general, arguments on this question were not
sufficiently extensive. In any event, it would not be prudent for this Court to decide the
question.216 Of course, this Court employs the interests of justice criterion in deciding
certain questions. This is a fitting question for the employ ment of that criterion. I do
not consider it to be in the interests of justice to reach a definitive holding on this
question. It is best left for decision by the Court that will hear the PAJA review.
Requisites for an interim interdict
[253] A litigant seeking an interim interdict must show: a prima facie right even if it is
open to some doubt; a reasonable apprehension of irreparable and imminent harm to the
right if an interdict is not granted; that the balance of convenience favours the gra nt of
an interim interdict; and that the applicant has no other satisfactory remedy.217
215 Johannesburg Municipal Pension Fund v City of Johannesburg 2005 (6) SA 273 (W) at para 9.
216 See Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010
(5) BCLR 391 (CC) at para 82.
217 See Webster v Mitchell above n 58 at 1187-92 as qualified by Gool above n 59 at 687H-688C. This formulation
of the requirements was accepted by this Court in OUTA above n 54 at para 41.
MADLANGA J
101
A prima facie right
[254] As I indicated in the introduction, the first judgment says that the residents have
not asserted any right in the Bill of Rights as a basis for their entitlement to the supply
of electricity. I think the first judgment’s focus on the lack of a right to be supplied with
electricity which is sourced from the Bill of Rights looks at the matter too narrowly.
This narrow focus is magnified by the analogy that the first judgment draws.218 Let me
demonstrate – by first focusing on the analogy – the existence of rights enjoyed by the
residents which bear relevance to this matter and their infringement by Eskom’s
conduct. In the analogy the first judgment says:
“The right to life or to dignity may be enhanced for particular classes of persons by
claims upon state resources. Every poor person would lead a more dignified life if
the state gave them a minimum income every month. That may be a good policy for
the state to adopt. It is a matter of considerable public debate. Such a policy may or
may not be affordable. But these are not measures that may be claimed as an incident
of the right to life or the right to dignity. They should not be decided by the courts.
They are matters to be decided by other institutions of a democratic state:
the Legislature and the Executive.”219
[255] Yes, poverty – especially extreme poverty in which a disturbingly large number
in our country languish – is an unwelcome phenomenon. But I think the analogy is
inapt. The residents’ case is not just about poverty. There has been the interposition of
something additional; something out of the ordinary. In this regard and only for
purposes of illustration, I pay particular attention to the averments of the Ngwathe
residents.
[256] In addition to extreme poverty, the sudden and substantial reduc tion in the
electricity supply to within NMD levels has, overnight, subjected residents of the
affected areas to the reality of having to contend with what they accurately describe as
218 First judgment at [132].
219 Id.
MADLANGA J
102
a “human catastrophe”. I state the facts based on what the situation wa s when the
residents approached the High Court. That is, based on the situation before the grant of
the interim interdict.
[257] The substantial reduction in the electricity supply has had an adverse effect on
the treatment of sewage. As a result, raw faecal matter flows into the Vaal River, with
dire consequences for the environment and health of the residents. The health hazard
arises from the fact that the existing infrastructure for the extraction of water from the
river is located such that it draws what is supposed to be potable water from the very
area of the river into which the faeces flows.
[258] Relatedly, the inadequate supply of electricity has caused the water purification
system to malfunction, further affecting the provision of potable water negatively. That
means even if there was no faeces in the water, there would still be an inadequate supply
of potable water as a result of the malfunction of the water purification system which,
in turn, results directly from the reduction in the electricity supply. There is the spectre
of loss of human life and general adverse consequences in the provis ion of proper
healthcare services at hospitals and old age nursing homes. This is as a result of the fact
that the hospitals and old age nursing homes in the affected areas have not been spared
the effects of the reduction of electricity supply. Economic activity has been affected
to such an extent that there is a risk of closure of some businesses and loss of jobs.
Children of school going age are also victims as all schools from high schools to nursery
schools are negatively affected due to lack of electricity for many hours per day.
[259] On the facts and thus on the rights asserted, there are some commonalities with
the case presented by the Lekwa residents.220
[260] It is worth noting that Eskom has not cogently denied the facts asserted by the
residents. If these facts do not demonstrate an infringement of several rights guaranteed
220 And I use “some” advisedly because there are differences. But the differences do not affect my approach.
MADLANGA J
103
in the Bill of Rights, nothing will. Of course, the implicated rights are the right to
dignity, the right to life, the right of access to healthcare services, the right of access t o
sufficient water (I would add this must surely mean potable and generally usable water,
not water contaminated with faecal matter and generally not cleaned properly), the right
to an environment that is not harmful to health or well -being and the right t o basic
education. The rights violations arise directly from Eskom’s conduct. Thus, there is
simply no comparison with what the first judgment – in concluding its analogy – says
may not be claimed as an incident of the right to life or the right to dignity.221
[261] The first judgment suggests that the rights relied upon by the residents were not
pleaded clearly for Eskom to know the case it had to meet. 222 I disagree. The
articulation of the rights relied upon and the facts pleaded in support of the rights
violations is clear enough. The first judgment’s difficulty stems from its refusal to
accept that the relief sought could be obtained on the basis of the rights violations
graphically pleaded by the residents. There is simply no way Eskom would have been
at sea as to what case it had to meet. To suggest that Eskom would not have known
what case it had to meet would be a classic example of ukuzimela ngesicithi (a siXhosa
saying that means to hide behind a small, short tuft of grass).
[262] At the risk of being repetitive, I need to quote something else the first judgment
says. It says:
“I have identified the rights relied upon by the residents as the basis upon which the
Associations contend that the reduction decision is unlawful, and hence reviewable.
The more expansive account of the rights of the residents that are said to have been
compromised by the reduction decision, taken up in the reasoning of the High Court,
and by way of submission before this Court, is not borne out by the pleaded case. This
is of no small significance. Eskom was entitled to know the case it had to meet, and,
221 See the first judgment’s analogy at [132].
222 First judgment at [61].
MADLANGA J
104
in particular, the rights claimed by the residents that are claimed to give rise to a duty
owed by Eskom to supply them with electricity.”223
[263] This misses the point. T he residents make a simple case. Eskom’s decision of
substantially reducing electricity supply has resulted in a breach of several rights
protected by the Bill of Rights. That decision was taken without first giving notice or
following a fair procedure. That is borne out by the pleaded case.
[264] The first judgment proceeds to make the point that in the absence of a right
claimed by the residents to give rise to a duty owed by Eskom to supply them with
electricity, Eskom’s duty in terms of section 7(2) of the Constitution to respect, protect,
promote and fulfil the rights in the Bill of Rights is not triggered.
[265] Without deciding the question whether the residents have a constitutional right
to a direct supply of electricity by Eskom, i t is so that there is contractual privity
between Eskom and the municipalities, and not between the residents and Eskom. That
matters not. The lack of contractual privity does not stand in the way of the residents
asserting other rights protected by the Bill of Rights, which have been infringed by the
decision to reduce electricity supply substantially. 224 That is, rights other than the
contentious right that the first judgment says they do not enjoy.
[266] The first judgment says the municipalities, and not Eskom, should be that
component of the state that must make good the state’s obligations under section 7(2).
The residents were enjoying all the fundamental rights I have identified. What
dramatically and suddenly changed all that was Eskom’s implementation of its decision
to reduce supply. In terms of section 7(2) of the Constitution which, amongst others,
provides that the state must respect the rights in the Bill of Rights, Eskom (an organ
of state) had a duty not to conduct itself in a manner that would result in an infringement
223 Id.
224 Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security
Agency [2014] ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC) (Allpay II) at para 49.
MADLANGA J
105
of those rights. It had a duty to respect those rights through refraining from acting in a
manner that would cause their infringement. That, of course, is subject to the lawful
exercise of the power Eskom enjoys in terms of section 21(5) of the ERA to reduce or
terminate the supply of electricity.
[267] The duty resting on the state to respect the rights in the Bill of Rights is
uncontroversial. That is especially so as this Court held in Juma Musjid225 that even a
private person or entity bears a negat ive obligation in terms of section 8(2) of
the Constitution not to act in a manner that “interfere[s] with or diminish[es] the
enjoyment of a right”. 226 The state’s duties under section 7(2) can be breached
“directly” or “indirectly”, for instance, when th ere is a “failure to respect the existing
protection [or enjoyment] of the right by taking measures that diminish that protection
[or enjoyment]”.227 And, more specifically in the context of what was at issue in that
case, the Court held that a private per son or entity bears a negative duty “not to impair
the learners’ right to basic education”.228
225 Juma Musjid above n 134. Briefly, here is what this case was about. In 1957 a government-aided school was
established on property owned by the Juma Musjid Trust. In 2002, the Trust informed the Department of
Education that it had taken a decision to establish an independent school on the property and that it would, in due
course, afford the Department notice to close the existing school. In 2003, the Trust gave written notice
terminating the Department’s right of occupation with effect from 31 December 2004. The Department undertook
to vacate the premises but did not do so. Following further developments, which included the school continuing
to operate on the property, the Trustees, in July 2008, launched a High Court application for the eviction of the
school. This Court r ecognised that there was “no primary positive obligation on the Trust to provide basic
education to the learners” much less was there an obligation “on the Trust to make its property available . . . for
use as a public school”. But this Court held that ne gative obligations flowing from section 8(2) enjoin private
persons or entities – in that case, the Trust – to “not interfere with or diminish the enjoyment of a right”. In
Juma Musjid, at paras 61-5, the Court assessed the reasonableness of the Trust’s a ctions with reference to its
willingness to enter into an agreement with the Department, the length of time – including periods of grace –
afforded to the Department, and copious communication sent to the Department and extensive negotiations held.
There was meaningful engagement. That is not true of this matter . Eskom acted as if no constitutional rights
would be impacted negatively by its decision
226 Id at para 58. Section 8(2) of the Constitution provides:
“A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it
is applicable, taking into account the nature of the right and the nature of any duty imposed by
the right.”
227 Id at para 58.
228 Id.
MADLANGA J
106
[268] Also, the relationship between Eskom, the municipalities and residents, on the
one hand, and the relationship, in Joseph,229 between the municipality, the lessor and
lessee, on the other, is analogous. In Joseph the applicants were tenants in a residential
property. The lessor owed a substantial amount of money to City Power, the City of
Johannesburg’s electricity service provider, in respect of the supply of electricity to the
property. As a result, the electricity supply was terminated. 230 This Court noted that
the “difficulties” that arose in the case were: the fact that the applicants were tenants
who had no contractual right to receive electricity from City Power; and the fact that
the applicants, instead, paid their electricity bills to the lessor whose company had a
contract with City Power for the supply of electricity.231 The Court then had to answer
the question whether “ any legal relationship exists bet ween the applicants and
City Power outside the bounds of contractual privity that entitles the applicants to
procedural fairness before their household electricity supply is terminated ”.232 The
termination of supply had taken place without City Power giving notice. 233 The
applicants contended that the termination of supply without notice was procedurally
unfair. The rights that they claimed had been infringed as a result of the termination
and which founded the PAJA cause of action were: the right of access to housin g in
terms of section 26 of the Constitution; the right to human dignity in terms of section 10
of the Constitution; and the contractual right to electricity supply in terms of the contract
of lease.234
[269] What is of importance is that Joseph had to grapple w ith what constituted
“rights” for purposes of PAJA’s conception of that term. Before giving an answer on
this, Skweyiya J said that the lessor—
229 Joseph above n 51.
230 Id at para 1.
231 Id at para 2.
232 Id.
233 Id at para 7.
234 Id at para 12.
MADLANGA J
107
“concluded a contract as a ‘customer’ with City Power for the sole purpose of
facilitating the supply of elect ricity to tenants in his building. He was a conduit. In
supplying electricity to [the residential property], City Power knew that it was
providing electricity to tenants living in the building. It is therefore, in my view,
artificial to think of the contractual relationship between [the lessor] and City Power as
being unrelated to the benefits that accrued to the applicants under this contract.”235
[270] Proceeding to deal with rights, he held:
“The focus of the enquiry therefore is the relationship, if any, between City Power as a
public service provider and users of the service with whom it has no formal contractual
relationship. This is similar to the approach adopted by Sachs J in Residents of Joe
Slovo, in which the lawfulness of the occupation of municipal council land by homeless
families was considered. Sachs J observed that this question—
‘must be located not in the framework of the common law rights of
landowners, but in the context of the special cluster of legal
relationships between the council and the occupants established by the
Constitution and the Housing Act . . . . The very manner in which
these relationships are established and extinguished will be different
from the manner in which these relationships might be created by the
common law . . . . They flow instead from an articulation of public
responsibilities . . . and possess an ongoing, organic and dynamic
character that evolves over time.’
I am of the view that this case is similarly about the ‘special cluster of relationships’
that exist between a municipality and citizens, which is fundamentally cemented by the
public responsibilities that a municipality bears in terms of the Constitution and
legislation in respect of the persons living in its jurisdiction. At this level,
administrative law principles operate to govern these relations beyond the law of
contract.”236
[271] In the present case, Eskom is well aware that the municipalities receive
electricity from it for onward supply to the residents. It is certainly also aware of the
235 Id at para 23.
236 Id at paras 24-5.
MADLANGA J
108
adverse impact a sudden, substantial reduction in electricity supply would have on the
residents’ fundamental rights. Those facts cry out for conduct on the part of Eskom that
recognises this reality. Conduct that respects the residents’ constitutional rights that
may be infringed by the termination or substantial reduction of electricity supply.
Initially, it is for this simple point that I place reliance on Joseph.
[272] If, in the interim interdict proceedings, it were to appear unlikely that the
intended review would succeed, that would detract from the requirement of a
prima facie right. The residents complain that the substantial reduct ion in electricity
supply was effected without any notice. Amongst others, this will be the basis of
the PAJA review. So, the question is whether the residents can show – for purposes of
the proposed review – that they were entitled to procedural fairness under PAJA.
[273] Let me immediately get rid of any possible issue around the fact that there is in
existence a contract for the supply of electricity between Eskom and the municipalities.
The interposition of the contract cannot alter what is essentially a statutory relationship
governed by the ERA between these organs of state. It matters not that the contract
makes provision for the reduction or termination of supply. Of importance is the fact
that section 21(5) of the ERA provides for the reduction and termination of supply. It
would be sophistry to suggest that a reduction or termination of electricity supply was
effected in terms of the contract of supply, and not in terms of section 21(5) of the ERA.
Indeed, contracts interposed to serve purposes that are concurrently served by statutory
fiat would be the simplest stratagem to avoid consequences of the improper exercise of
public power.237 Therefore, the termination of supply is unquestionably the exercise of
a statutory power. I then move on to the question of the residents’ entitlement to
procedural fairness.
237 It is so, of course, that Allpay II above n 224 would serve to block that escape avenue. In Allpay II Froneman J
held at para 49:
“Organs of state have obligations that extend beyond the merely contractual. In terms of
section 8 of the Constitution, the Bill of Rights binds all organs of state. Organs of state, even
if not state departments or part of the administration of the national, provincial or local spheres
of government, must thus ‘respect, protect, promote and fulfil the rights in the Bill of Rights’.”
MADLANGA J
109
[274] On that, Joseph provides an answer yet again. There, this Court first dealt with
whether the termination of supply constituted administrative action. To that end, it had
to answer the question whether the termination had a “direct, external legal effect” on
the residents. In answering the question affirmatively, it held:
“I nee d do no more on the facts of this case than endorse the broad interpretation
accorded to [the phrase ‘direct, external legal effect’] by the Supreme Court of Appeal
in Grey’s Marine, where it stated that the phrase ‘serv[es] to emphasise that
administrative action impacts directly and immediately on individuals’. Indeed, a
finding that the rights of the applicants were materially and adversely affected for the
purposes of section 3 of PAJA would necessarily imply that the decision had a ‘direct,
external legal effect’ on the applicants. Conversely, a finding that the rights of the
applicants were not materially and adversely affected would have the result that
section 3 of PAJA would not apply – barring, of course, a claim based on a legitimate
expectation which was not raised in this case.”238
[275] Joseph found it unnecessary to decide the case on the basis of the alleged
infringement of the rights of access to housing and of dignity. It decided it on the basis
that the tenants enjoyed the right to receive electricity as a basic municipal service. For
the reasons I have stated already, in the instant matter, the several rights asserted by the
residents are of relevance for purposes of the intended PAJA review. Let me set out the
residents’ case on the intended PAJA review more fully.
[276] The Lekwa residents aver that Eskom reduced electricity to within NMD levels
without any notice to them and, therefore, without any hearing. They also contend that
actual electricity usage is 38% more than the NMD levels and tha t looking to historic
NMD levels for justification for the reduction in electricity supply is irrational,
unreasonable and divorced from reality. The Ngwathe residents aver that Eskom’s
conduct is not genuinely about wanting to keep within NMD levels for the reasons
Eskom has given. 239 Rather, Eskom is seeking to force the affected municipalities to
238 Joseph above n 51 at para 27.
239 I explain this a little bit more when I deal with the balance of convenience.
MADLANGA J
110
settle their outstanding debts. Even though not pleaded explicitly, this implicates
section 6(2)(e)(ii) of PAJA. This section renders administrative action t hat was taken
for an ulterior purpose or motive susceptible to review.
[277] It matters not even if the Ngwathe residents have not specifically alleged that
one of the grounds of review will be that Eskom took its decision for an ulterior purpose.
Although ordinarily parties must be held to their pleadings, courts must not be dogmatic
about this. Just under a century ago Innes CJ held in Robinson held:
“The object of pleading is to define the issues; and parties will be kept strictly to their
pleas where any departure would cause prejudice or would prevent full enquiry. But
within those limits the Court has a wide discretion. For pleadings are made for the
Court, not the Court for pleadings. And where a party has had every facility to place
all the facts before the trial Court and the investigation into all the circumstances has
been as thorough and as patient as in this instance, there is no justification for
interference by an appellate tribunal, merely because the pleading of the opponent has
not been as explicit as it might have been.”240
[278] The Lekwa residents characterise this as a rationality issue. They plead that it is
irrational of Eskom to reduce the electricity supply in an attempt to force
Lekwa Municipality to pay its debt. Based on this, they then say the means chosen by
Eskom are not rationally connected to the purpose sought to be achieved. That is plainly
a case founded on section 6(2)(f)(ii) of PAJA.
[279] I am satisfied that the residents have not only demonstrated their entitlement to
the pleaded fundamental rights, but have also set out grounds of review which are
sufficient for this stage of the proceedings. Whether they will satisfy the reviewing
court is for that court to determine.
240 Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 at 198. Maya JA expressed herself in similar terms
in Spearhead Property Holdings Ltd v E&D Motors (Pty) Ltd [2009] ZASCA 70; 2010 (2) SA 1 (SCA) at para 42
saying:
“[S]ince pleadings are made for the court and not the court for the pleadings, it is the duty of
the court to determine the real issues between the parties, and provided no possible prejudice
can be caused to either, to decide the case on those real issues.”
MADLANGA J
111
[280] The first judgment adopts a restrictive approach to the nature of the rights that
may be asserted. It claims in this regard, apparently for purposes of both the interim
interdict and the intended PAJA review, that the res idents can assert only the right to
the supply of electricity by Eskom. I repeat that this is mistaken. On first principles,
the nature of the right envisaged by the definition of “administrative action” in section 1,
read with section 4(1), of PAJA is not restricted. All that it need be is a right. It may
take whatever form based on what we know of that concept in common law, statutory
law or in respect of constitutionally protected rights. 241 The only question is whether
the decision in issue has adve rsely (section 1) or has materially and
adversely (section 4(1)) affected (or has the capacity so to affect (Greys Marine242)) that
right, whatever its nature. It is unsurprising that Quinot and Maree say that—
“the impact element of the definition of adm inistrative action should not be narrowly
interpreted to refer only to private-law or common-law rights or to fundamental rights
in the Bill of Rights, but also includes so-called ‘public-law rights’, which emerge from
broad constitutional and statutory obligations placed on organs of state.”243
[281] According to them, the envisaged right is so expansive as to include what are
“obviously much broader than a traditional understanding of legal rights”. 244 By this
they are referring to what they call “public-law rights”.245 Generally when – outside of
the Bill of Rights – the Constitution imposes obligations, it simultaneously creates a
corresponding entitlement in respect of each such obligation. Those are the public law
rights the authors are referring to. De Ville says “[t]here is no natural limit to what can
be understood as falling within the concept of ‘rights’”. 246 Likewise, I understand
241 I repeat that for my purposes, I am not concerned with the debate whether “right” includes something more
than what we know to be a right. It is not necessary to engage in that debate because here we are concerned with
what are unquestionably rights. The debate between the first and my judgments is about what right or rights can
properly be asserted for purposes of the interim interdict and intended PAJA review.
242 Grey’s Marine above n 95 at para 23.
243 Quinot et al above n 136 at 93.
244 Id at para 95.
245 Id.
246 De Ville above n 112 at 53.
MADLANGA J
112
Hoexter and Penfold – who quote, amongst others, De Ville – not to place any
restriction on the nature of the right that m ay be asserted for purposes of a PAJA
review.247 Again, let me emphasise that I am here not concerned with the question of
“interest” or “legitimate expectations”. My focus is on rights. That is what is at issue.
[282] To summarise, and leaving out some of the pleaded bases of the intended PAJA
review, th e residents say that the decision that substantially reduced the electricity
supply was taken without giving them notice. More specifically and in answer to the
first judgment’s suggestion of the holding of a meeting that involved some of the
residents, l et me point out that the Ngwathe residents aver that a meeting was held
between, amongst others, themselves and Eskom after the reduction decision had been
taken. That does not assist Eskom. According to the Lekwa residents, no meeting was
held.
[283] I am satisfied that the residents put up enough for purposes of showing a decision
that has had an adverse impact on their rights. I do not understand the difficulty the
first judgment has with that, especially since it accepts that the residents have pleaded
an infringement of the right to life, the right to human dignity, the right of access to
water, the right to basic education and the right to an environment that is not harmful to
health or well-being.248
[284] Let us strip all this to its bare essentials. A deci sion substantially reducing the
supply of electricity was taken. That decision resulted in a “human catastrophe”
characterised by gross violations of the residents’ fundamental rights. The residents
were not given notice before the decision was taken. No fair process of whatever nature
preceded the decision. On first principles, the residents have shown that they have a
viable case in the intended PAJA review; a case founded on section 6(2)(c) read with
section 4(1) of PAJA. Why the first judgment does not see that escapes me. This is a
247 Hoexter and Penfold above n 146 at 309-20.
248 First judgment at [95] to [96].
MADLANGA J
113
far cry from the first judgment’s suggestion that my judgment relies on nothing more
than “deplorable social and economic effects” that leave a judicial lacuna.
[285] It is so, as the first judgment points out, that Bato Star held that “it is desirable
for litigants who seek to review administrative action to identify clearly both the facts
upon which they base their cause of action, and the legal basis of their cause of
action”.249 What I summarise above cannot possibly leav e any doubt in Eskom’s
collective mind as to the nature of the pleaded case. I am quite alive to the fact that
more has been pleaded. But what I have highlighted is enough to show the existence of
a viable PAJA review. So, what shortcomings, if any, there may be about whatever else
has been pleaded by the residents cannot detract from this reality.
[286] And as I said, it would be perverse to suggest that the residents cannot rely on
the same fundamental rights for purposes of the interim interdict. It is in respect of
those same rights that – at the time they sought the interim interdict – the residents were
suffering harm, which would be irreparable if the interim interdict were not granted.
There is absolutely no reason to restrict the residents to the one right that the
first judgment insists upon.
[287] The first judgment engages in a lengthy discourse about the content of the rights
relied upon by the residents and whether that entails a claim by the residents to a given
quantity of electricity. So as not to do an injustice to what the first judgment says, here
it is:
“None of [the approaches by the High Court and me] commences with the correct
starting point: what is the content of the right invoked, and, in particular, does the
content of the right include a right enjoyed by the residents to be supplied with a given
quantity of electricity by Eskom?”250
249 Bato Star above n 48 at para 27.
250 First judgment at [116].
MADLANGA J
114
This is an introduction to a much longer discourse on the content of the rights, including
the impact of the rights on the state’s budget.
[288] I am at a loss as to why I must start with the content of the rights. I would
understand the first judgment’s point if there was an issue about the nature of each of
the rights that I highlight. Does it not infringe one’s dignity to cause them to drink
water that is contaminated with faecal matter? Of course, it does. Does the real threat
of loss of human life at hospitals and old age nursing homes occasioned by the reduction
of electricity supply not constitute a threatened infringement of the right to life? It
certainly does. If the flow of raw faeces into the Vaal River is not violative of the right
to an environment that is not harmful to health or well -being, I do not know what is.
Does the negative impact on schooling caused by the reduced supply of elect ricity not
infringe the right to basic education? Surely, it does. The asserted rights have been
established.
[289] Crucially, the residents’ case is not a claim to a specific quantity of electricity.
Rather, read holistically, the residents’ fight concerns the process by which the
substantial reduction in electricity supply, which has undeniably had catastrophic
effects, came about. That is a far cry from the claim made by the first judgment, which
is that the residents are claiming a specific quantity of e lectricity. Thus, it does not
assist the first judgment to straitjacket my approach into having to “demonstrate that
the content of the rights [my judgment] references includes the right of the residents to
a particular level of supply of electricity”.251 I make no such point. And I do not have
to. For the reasons I have given, the following is enough to establish a viable case for
a PAJA review. The residents enjoy constitutionally protected rights. Those rights have
been materially and adversely affe cted by Eskom’s reduction decision. That decision
was taken without following a fair procedure. The same fundamental rights and their
infringement satisfy some of the requirements for the interim interdict. It is for this
reason that I earlier said I do not need to rely on section 7(2) of the Constitution, but
251 First judgment at [128].
MADLANGA J
115
that I do so because of the first judgment’s insistence that Eskom had no obligation
whatsoever towards the residents. So, from what I have said, the lengthy discourse in
the first judgment about the content of rights at issue, the interpretation of the rights and
the impact on the state’s budget does not arise from what I hold.
[290] In OUTA Moseneke DCJ had this to say about the nature of the right that must
be proved in an application for an interim interdict:
“[T]he prima facie right a claimant must establish is not merely the right to approach a
court in order to review an administrative decision. It is a right to which, if not
protected by an interdict, irreparable harm would ensue . An interdict is meant to
prevent future conduct and not decisions already made. Quite apart from the right to
review and to set aside impugned decisions, the applicants should have demonstrated
a prima facie right that is threatened by an impending or imminent irreparable harm.”252
(Emphasis added.)
[291] Irreparable harm would definitely ensue if the fundamental rights pleaded by the
residents were not protected by an interim interdict. If there is no interdict, there can
be no question that you cannot repair th e continued indignity of denying people their
usual supply of potable water and availing to them, instead, water full of faecal matter.
I need make no illustration about the other rights that have also been, and continue to
be, violated. It follows as a matter of course that the rights can only be protected through
a reversal of the trigger event that resulted in their infringement. That trigger event is
the reduction decision and the resultant actual reduction.
[292] In some cases the very question whether the right in issue does exist in law may
be contested. In OUTA this Court held that “[i] f the right asserted in a claim for an
interim interdict is sourced from the Constitution it would be redundant to enquire
whether that righ t exists ”.253 The rights invoked by the residents are sourced from
the Constitution. So, their existence cannot be contested.
252 OUTA above n 54 at para 50.
253 Id at para 51.
MADLANGA J
116
[293] The threshold for an interim interdict in terms of a breached right or in terms of
a threat of breach is not showing the certain existence of the right. You need only show
a right, though at the level of interim relief it may be “open to some doubt”. 254 In my
view, the residents, who also demonstrate bases for seeking a review, have done more
than this test requires. The first judgment takes the view that the residents have not
proved the existence of a right to which the interim interdict application is pegged. It
reasons that the provision of electricity is a means by which the rights to dignity, life,
housing, food, healthcare, water and social security may be secured. It then says that
“[a] particular means by which a right may be secured does not make that means the
subject matter of the right”. 255 Yet again, this misses the point. The point is about
Eskom’s conduct, which is the direct cause of the breach of the residents’ rights.
[294] The first judgment continues immediately after what I have quoted in the
preceding paragraph:
“In the case of the right to housing (section 26) or rights to health care, food, water and
social security (section 27), it is for the state to take reasonable measures within its
available resources to achieve the progressive realisation of these rights. The state must
determine the means by which these rights are progressively realised. But the means
to realise the rights do not define the contents of the rights, not least because there may
be entirely different, but equally permissible, means used to realise the same right.
These rights must be progressively realised. How that is to be done is for the state to
determine, provided the measures taken are reasonable. Thus, how the state may use
the supply of electricity, through what agency and under what conditions to realise the
rights in sections 26 and 27 of the Constitution, is for the state to determine.”256
254 See Webster v Mitchell above n 58 at 1189 and Gool above n 59 at 688A. The requirements for an
interim interdict are: a prima facie right even if it is open to some doubt; a reasonable apprehension of irreparable
and imminent harm to the right if an interdict is not granted; the balance of convenience must favour the grant of
the interdict; and the applicant must have no other satisfactory remedy available. Of course, in this Court overall,
we use the interests of justice standard. See OUTA above n 54 at para 41.
255 First judgment at [112].
256 Id.
MADLANGA J
117
[295] This is a curious approach. Unlike socio -economic rights, the right to dignity,
the right to life, the right to an environment that is not harmful to health or well -being
and the right to basic education are not subject to progressive realisation in accordance
with reasonable measures, which are taken within the state’s available resources.257 The
residents aver that the infringements are as a result of Eskom’s conduct. And there is a
basis for review; this, I dealt with above.
[296] I do not shy away from meeting the first judgment’s point frontally. Insofar as
socio-economic rights are concerned, the residents are asserting rights they were already
enjoying. By way of one example, the residents are saying as a result of Eskom’s
conduct, water that is supposed to be potable has faeces. Now they cannot drink water
which – immediately before Eskom’s conduct – they could drink. This has nothing to
do with the point about the progressive realisation of socio -economic rights made by
the first judgment. This reasoning applies equally to the adverse effect that Eskom’s
conduct has had on healthcare services.
A reasonable apprehension of irreparable harm
[297] Coming to the second requirement, 258 is there a reasonable apprehension of
irreparable and imminent harm to the right if an interdict is not granted? In this regard,
we must look at the impact Eskom’s conduct has had on the asserted constitutional
rights. As I have said, the substantial reduction of electricity supply has had the effe ct
of violating several of the residents’ rights guaranteed in the Bill of Rights. At the time
the interim interdict was sought and obtained, the violation was continuing. But for the
257 Subsections (1) and (2) of section 27 of the Constitution provide:
“(1) Everyone has the right to have access to—
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their
dependants, appropriate social assistance.
(2) The state must take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of each of these rights.”
258 I do not understand this requisite to be directly in issue. It is indirectly in issue only because of the fact that
the first judgment does not focus on the rights asserted by the residents and also because it takes the view that
some of the rights were not pleaded by the residents.
MADLANGA J
118
interim interdict, the breach would have been ongoing and the harm suf fered would
certainly be irreparable. In fact, I believe that much of the suffering the residents say
they have been subjected to may not be repaired merely by the restoration of electricity.
For example, how do you repair the deeply offensive indignity suffered as a result of
being forced to choose between drinking or using water contaminated with faecal
matter, on the one hand, and not drinking or using that water at all, on the other? Bear
in mind that a significant many in our country live in conditi ons of extreme poverty.
Bottled water is not an option for them.
[298] An interim interdict serves the purpose of halting the continuation of the
offending conduct which – for as long as it continues – exacerbates the rights violations.
But, and I emphasise for those who might fixate on the bogeyman and think that my
approach will cause Eskom to collapse, an interim interdict serves this purpose pending
the final determination of the review. It can never be that just because there is a fear of
collapse Eskom must be given a licence to ride roughshod over the rights of individuals.
If a review of its decisions to reduce or terminate electricity supply is warranted, courts
must not shy away from exercising their review power.
Balance of convenience
[299] On this subject, I must consider what this Court held in OUTA, which is that—
“[t]he balance of convenience enquiry must now carefully probe whether and to what
extent the restraining order will probably intrude into the exclusive terrain of another
branch of Government. The enquiry must, alongside other relevant harm, have proper
regard to what may be called separation of powers harm. A court must keep in mind
that a temporary restraint against the exercise of statutory power well ahead of the final
adjudication of a claimant’s case may be granted only in the clearest of cases and after
a careful consideration of separation of powers harm.”259
259 OUTA above n 54 at para 47. In Economic Freedom Fighters above n 62 at para 48, Khampepe J placing
reliance on OUTA held:
“We were cautioned by this Court in OUTA that, where Legislative or Executive power will be
transgressed and thwarted by an interim interdict, an interim interdict should only be granted in
the clearest of cases and after careful consideration of the possible harm to the separation of
powers principle. Essentially, a court must carefully scrutinise whether granting an interdict
MADLANGA J
119
[300] The Court added that “one important consideration would be whether the harm
apprehended by the claimant amounts to a breach of one or more fundamental rights
warranted by the Bill of Rights”.260 And it noted that OUTA was not such a case.
[301] The Court emphasised the fact that it was required to intrude into a policy laden
and polycentric decision of the Executive. 261 The decision was “about the ordering of
public resources, over which the Executive Government disposes and for which it, and
it alone, has the public responsibility”. 262 And “the duty of determining how public
resources are to be drawn upon and re -ordered lies in the heartland of
Executive Government and domain”.263 All this is what informed the Court’s point on
separation of powers harm.264
[302] On my reading of OUTA, the fact that the harm grounding the interim interdict
sought amounts to a breach of one or mo re fundamental rights protected by the
Bill of Rights tempers the impact of what may otherwise be too stringent a test. As
Hoexter and Penfold observe, the overemphasis of “clearest cases” may have the effect
of: (a) being overly favourable to the public authority; and (b) not paying sufficient
regard to the significantly important factor of protecting fundamental rights. 265
Raboshakga says “[t]he test adopted by the OUTA Court provides the space for a
consideration of competing interests, in particular, t he rights interpretation and
will disrupt Executive or Legislative functions, thus implicating the separation and distribution
of power as envisaged by law. In that instance, an interim interdict wo uld only be granted in
exceptional cases in which a strong case for that relief has been made out. ”
260 OUTA above n 62 at para 47.
261 Id paras 67-8.
262 Id at para 67.
263 Id.
264 On this point, the Court at para 65 of OUTA above n 62 appeared to lay emphasis on decisions of the Executive
or Legislative arms of Government. Perhaps that is to be understood in the context of the fact that the case
concerned the exercise of Executive power at a high level, i.e. at ministerial level. I need not get into what the
position should be if the exercise of power is at a lower level, for examp le, at the level of an administrative
functionary or at the level of an organ of state like Eskom.
265 Hoexter and Penfold above n 146 at 806.
MADLANGA J
120
enforcement”.266 Indeed, OUTA does recognise – as an important consideration – the
question “whether the harm apprehended by the claimant amounts to a breach of one or
more fundamental rights warranted by the Bill of Rights”.267
[303] OUTA must be read in the context of the fact that what was at issue there was a
highly policy laden decision by a member of the Executive arm of government and
violations of fundamental rights protected in the Bill of Rights were not at issue. In the
main, it is those two considerations that informed the Court’s final conclusion. 268 I
believe that the role to be played by this factor must depend on the nature of the
Executive decision. Ordinarily, this factor must apply on a sliding scale. The more
policy la den or polycentric the decision, the more the role this factor must play in
influencing the court’s determination. The lesser the policy-ladenness or polycentricity,
the lesser the influence of this factor. But courts must never lose sight of the fact th at
this remains a balancing exercise. Affected fundamental rights must always play a
critical role in that balance. And in some cases the affected rights may be of such a
nature and their breach so grievous that they may influence the decision in favour of the
victim of the rights violation even in the face of a highly policy laden and polycentric
executive decision.269 The ultimate question is: what is the outcome dictated by the
balancing exercise?
266 Raboshakga “The Separation of Powers in Interim Interdict Applications” (2013) 5 Constitutional Court
Review 366 at 372.
267 OUTA above n 54 at para 47.
268 Hoexter and Penfold above n 146 at 805.
269 Raboshakga, above n 266 at 376, says that “[t]he separation of powers plays a role, but can be outweighed by
other factors”. At 373, the author also says that on an alternative reading of OUTA—
“the Court was not establishing a new general rule of ‘abstinence’ in policy-laden or polycentric
matters. Instead, the Court was emphasising that, in the context of interim relief interdict cases
against the state, the doctrine of separation of powers may possess greater weight than in other
circumstances. . . . Under such circumstances, courts must tread cautiously in order to respect
the authority of the Executive to make policy choices.”
In City of Cape Town v South African National Roads Agency Ltd [2013] ZAWCHC 74 (WCC) at para 76
Binns-Ward J held:
“OUTA does not enjoin a culture of undiscriminating deference by the courts . . . when seized
of applications for interim interdictal relief in particular to executive conduct. The judgment
does not abjure the courts’ constitutional duty to uphold the rule of law and to ensure, as far as
possible, the achievement of effective remedies for breaches of fundamental rights, including
the right to lawful, reasonable and procedurally fair administrative action.”
MADLANGA J
121
[304] An example of this Court’s decision involving an inter im interdict where rights
violations took centre stage in the face of a policy laden decision of a municipality is
South African Informal Traders. There Moseneke DCJ held:
“[T]he eviction of traders involved constitutional issues of considerable signific ance.
The ability of people to earn money and support themselves and their families is an
important component of the right to human dignity. Without it they faced ‘humiliation
and degradation’. Most traders, we were told, have dependants. Many of these
dependants are children, who also have suffered hardship as the City denied their
breadwinners’ lawful entitlement to conduct their businesses. The City has not
disputed this. The City’s conduct has a direct and ongoing bearing on the rights of
children, including their direct rights to basic nutrition, shelter and basic health care
services.”270
[305] In the present case the harm suffered, which was continuing at the time the
interim interdict was sought and obtained, does amount to a breach of several
fundamental rights protected by the Bill of Rights. The rights violations at issue are
most atrocious and must count for quite a lot in the balancing exercise. As I said earlier,
very few rights violations surpass what the residents have been subjected to. On balance
and without any hesitation, I conclude that the balance of convenience certainly favours
the residents. Who would want to be subjected to this “human catastrophe” (e.g. to
drink and use water contaminated with faecal matter and generally not cleaned properly
even absent the faeces-related problem) whilst a review is winding its way through our
court system? In addition, it is not as though in the interim Eskom cannot provide the
additional electricity. It can. It has done so well over the NMD f or years; and what it
has been doing is to levy penalties on the municipalities for electricity provided in
excess of the NMD. Has anything changed which now makes it impossible for Eskom
to continue doing so?
270 South African Informal Traders Forum v City of Johann esburg [2014] ZACC 8; 2014 (4) SA 371 (CC); 2014
(6) BCLR 726 (CC) at para 31.
MADLANGA J
122
[306] The Ngwathe residents refer to and quote fro m correspondence in which
Eskom – in so many words – indicated to at least one of the municipalities its
preparedness not to lower supply to levels that are within the NMD if the municipality
paid its outstanding debt by a stipulated deadline . Therefore, all this appears to be
a well calculated debt collection strategy. Surely, this must be a relevant factor to the
balance of convenience element. It tends to show that the skies will not fall if – purely
in the interim – Eskom continues to provide electri city at above NMD levels. I would
sooner have the residents of the municipalities – purely on an interim basis – living
lives that are as near as possible to wholesome, than subject them to the current “human
catastrophe”.
[307] I am not unmindful of Eskom’s version that being required to supply electricity
above NMD levels will put the dilapidated infrastructure of the municipalities and the
national grid under additional strain. But w hat Eskom says in this regard rings hollow
in the face of its atte mpt to extract payment on pain of effecting a reduction in the
electricity supply. Put differently, indications are that – had payment been
forthcoming – Eskom would have supplied electricity above NMD levels
notwithstanding the concerns it now puts forth.
Other satisfactory remedy
[308] I dealt with this extensively above. The High Court’s acceptance of the fact that
this requirement has been met must stand.
[309] In conclusion, leave to appeal must be granted, but the appeal must fail.
Order
[310] The following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed with costs, such costs to include the costs of two
counsel.
For the Applicant:
For the First Respondents:
S Shangisa SC and L Rakgwale
instructed by Maponya Incorporated
H van Eeden SC and DH Wijnbeek
instructed by Lou Van Wyk
Incorporated and Andreas Peens
Attorneys