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[2022] ZAECMKHC 102
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Stander and Others v Eskom Holdings SOC Ltd (1984/2021) [2022] ZAECMKHC 102 (18 October 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MAKHANDA)
CASE NO.: 1984/2021
Matter heard on: 13
October 2022
Judgement delivered
on: 18 October 2022
In the matter between: -
THEUNIS JACOBUS
STANDER
1
st
Applicant
THEUNIS JACOBUS
STANDER N.O.
2
nd
Applicant
E M STANDER
N.O.
3
rd
Applicant
W NIENABER
N.O.
4
th
Applicant
and
ESKOM HOLDINGS SOC
LTD
Respondent
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: YES
REVISED.
JUDGMENT
SMITH
J:
[1]
On 27 July 2021, I granted a rule nisi,
inter alia
,
restraining the respondent (Eskom) from disconnecting the electricity
supply to the applicants’ farm, Buffelsvlei, Aliwal
North. The
rule operated as an interim interdict with immediate effect, pending
the outcome of the review proceedings in Part B
of their notice of
motion. That rule was subsequently confirmed by Malusi J on 1
February 2022.
[2]
The applicants seek to review
Eskom’s decision to terminate the electricity supply
to the
farm on various grounds, amongst others, that: (a) Eskom did not give
them any notice of its intended decision to terminate
the electricity
supply; (a) it failed to take relevant considerations into account;
(c) material and mandatory procedures and conditions
prescribed by
legislation were not complied with; and (d) the decision to terminate
the electricity supply was not rational and
was so unreasonable that
no reasonable person would have taken it.
[3]
In addition to opposing the matter on the merits, Eskom has also
taken the point
in limine
that the court is precluded from
reviewing the impugned decision because the applicants did not
exhaust their internal remedies
as required in terms of section 7 of
the Promotion of Administrative Justice Act, 3 of 2000 (PAJA).
[4]
Section 7(
2
)(
a
) of
PAJA provides that:
‘
Subject 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.’
[5]
Paragraph (
c
) provides
that ‘the court may in exceptional circumstances and on
application by the person concerned, exempt such person
from the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interests of justice’.
[6]
The Constitutional Court held in
Dengetenge Holdings Pty Ltd v Southern Sphere Mining and
Development Company
Ltd
2014 (5) SA 138
(CC), at para 119, that
those provisions, in clear and peremptory terms, prohibit courts from
reviewing administrative action in
terms of the Act, where there is
provision for internal remedies, until such time as the remedies have
been exhausted. And, ‘[s]ince
PAJA applies to every
administrative action, this means that there can be no review of an
administrative action by any court where
internal remedies have not
been exhausted, unless an exemption has been granted in terms of
section 7(
2
)(
c
).’
(See
also:
Koyabe v Minister for Home Affairs
2010 (4) SA 327
(CC))
[7]
And in
Reed v Master of the
High Court
[2005] 2 All SA 429
(E), Plasket J held that an
internal remedy, in order to qualify as such, ‘must be capable,
as a matter of law, of providing
what the Constitution terms
appropriate relief: it must be an effective remedy’.
[8]
Eskom contends that section 30 of the Electricity Regulation Act, 4
of 2006, constitutes
such an appropriate and effective internal
remedy. In terms of that section the National Energy Regulator (the
Regulator), is empowered
to settle any dispute, between,
inter
alia
, a customer or end user on the one hand and a licensee on
the other, on such terms as he or she thinks fit. Eskom contends that
the dispute between it and the applicants, pertaining in particular
to whether the applicants’ electricity account was in
arrears,
was a dispute envisaged by section 30 and ought to have been referred
to the Regulator for resolution.
[9]
Ms
Sephton
, who appeared
for the applicants, while accepting that: section 30 of the
Electricity Regulation Act provides for an internal remedy;
the
applicants were required to exhaust that remedy before instituting
review proceedings; and they have not put up any facts which
may
constitute exceptional circumstances as envisaged in terms of section
7(
2
)(
c
) of PAJA, nevertheless submitted that I have a
discretion to postpone the review proceedings in order to allow the
applicants opportunity
to refer the dispute to the Regulator.
[10]
Although I am not unsympathetic to the applicants’ dilemma, I
agree with Mr
Titus
, who appeared for Eskom, that I do not
have a discretion to make such an order. Section 7(
2
)(
b
)
provides in mandatory and unambiguous terms that if the court is not
satisfied that an internal remedy has been exhausted, it
must ‘direct
that the person concerned must first exhaust such remedy
before
instituting proceedings
in any court or tribunal for judicial
review in terms of this Act’. (My underlining)
[11]
I am accordingly constrained to dismiss the
application on this basis and to direct that the applicants
must
first exhaust the internal remedy provided for in terms of section 30
of the Electricity Regulation Act before instituting
review
proceedings in respect of Eskom’s decision to terminate the
electricity supply to their farm.
[12]
In the result the following order issues:
1)
The application is dismissed with costs.
2)
The applicants are directed to refer the dispute
to the National Energy Regulator in terms of section 30 of the
Electricity Regulation
Act, 4 of 2006, before instituting proceedings
for the review of Eskom’s decision to terminate the electricity
supply to
their farm, Buffelsvlei, Aliwal North.
JE
SMITH
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Applicants :
Adv. S Sephton
:
Neville Borman & Botha
22 Hill Street
MAKHANDA
(Ref: Mr. Powers)
Counsel
for Respondent :
Adv. Titus
:
Lulama Prince Inc.
187 High Street
MAKHANDA