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[2016] ZAGPPHC 479
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Organisation Undoing Tax Abuse v National Energy Regulator of South Africa and Others (24365/2016) [2016] ZAGPPHC 479 (8 April 2016)
IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE
NO: 24365/2016
DATE: 8
APRIL 2016
(1)
REPORTABLE: NO
(2) OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
In
the matter between:
THE
ORGANISATION
UNDOING
TAX ABUSE
("OUTA")
Applicant
and
THE
NATIONAL
ENERGY
REGULATOR
OF
SOUTH
AFRICA
First
Respondent
ESKOM
HOLDINGS SOC
LIMITED
Second
Respondent
THE
MINISTER
OF THE
DEPARTMENT
OF
Third
Respondent
PUBLIC
ENTERPRISES N.O
THE
MINISTER
OF ENERGY
N.O
Fourth
Respondent
MINISTER
OF FINANCE
N.O
Fifth
Respondent
Date
of Hearing and
Order
31
March 2016
Date
of Reasons for
Order
08
April 2016
JUDGMENT
(REASONS
AND
ORDER)
MANAMELA
AJ
Introduction
[1]
This matter was enrolled on an extremely urgent basis for hearing on
31 March 2016
[1]
After hearing
oral argument by counsel, I handed down an order, in terms of which,
the application was dismissed with costs.
[2]
I also made an order in respect of an interlocutory application.
[3]
I undertook to provide these reasons, for the order(s) made, on 08
April 2016.
[2]
The hearing of this matter was preceded by an order by agreement
between the parties in another related matter.
[4]
Although, the other matter had been brought by different applicants
against the first, second and fourth respondents herein, the
substance of the issues in the two matters were virtually the same.
This comparison is significant for the interlocutory application
- in
the form of an application to strike out contents of affidavit by one
of the respondents - by the applicant referred to above.
More will
follow on this, after a brief discussion of the relevant background
of this matter.
Background
[3]
The National Energy Regulator of South Africa (NERSA), the first
respondent in this matter, was established in terms of section
3 of
the National Energy Regulator Act 40 of 2004 (NERA).
[5]
NERSA is mandated to "regulate the electricity, piped-gas and
petroleum pipeline industries; and to provide for matters connected
therewith".
[6]
Its mandate
and operations are governed by a raft of legislation, including NERA,
as already indicated and the Electricity Regulation
Act 4 of 2006
(ERA). In terms of section 4(a)(ii) of ERA, as part of its duties and
powers, NERSA must, among others, regulate
prices and tariffs of
electricity. NERSA says it is committed to execute its mandate and
operate under the regulatory principles
of transparency, neutrality,
consistency and predictability, accountability, integrity, efficiency
and independence.
[7]
However,
the current application represents a challenge of NERSA's regulatory
role and its conduct seen from provisions of NERA
[8]
in particular, and generally, ERA.
[4]
The purpose or objects of ERA (i.e. Electricity Regulation Act 4 of
2006) are set out in its long title and section 2,
[9]
but of current greater significance is its section 15. It sets out
these tariff principles:
"(1)
A licence condition determined under section 14 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;
(b)
must provide for or prescribe incentives for continued
improvement of the technical and economic efficiency with which
services
are to be provided;
(c)
must give end users proper information regarding the costs that
their consumption imposes on the licensee's business;
(d)
must avoid undue discrimination between customer categories; and
(e)
may permit the cross-subsidy of tariffs to certain classes of
customers.
(2)
A licensee may not charge a customer any other tariff and make use
of provisions in agreements other than that determined or approved
by
the Regulator as part of its licensing conditions.
(3)
Notwithstanding subsection (2), the Regulator may, in prescribed
circumstances, approve a deviation from set or approved tariffs."
[I
added underlining for emphasis]
My
understanding of the underlined part in the above quotation is that
NERSA, as the regulator is the only entity with legislative
competence to determine or approve tariffs chargeable by ESKOM, the
second Respondent in this matter, or any other licensee for
that
matter, to customers. Therefore, the relationship between NERSA and
ESKOM is that of licensor
[10]
and
licensee.
[5]
In execution of its mandate, NERSA developed methodology (to
determine the allowable tariffs to be charged by ESKOM to consumers
and increases in tariffs) called the Multi Year Price Determination
(MYPD). The period for an MYPD is 5 years. The first M YPD
for ESKOM
business activities (i.e. generation, transmission and distribution
of electricity) was from 01 April 2006 to 31 March
2009.
[11]
Currently the MYPD process is in its third cycle, hence its reference
as MYPD3. It (i.e. MYPD3) commenced on 01 April 201 3 and
will
continue until 31 March 2018.
[6]
The MYPD methodology provides for a Regulatory Clearing Account (the
RCA). The purpose of the RCA is explained partly as follows:
"to
debit or credit the allowable portion of coal costs variances as
calculated through the PBR formula and all other costs
variances that
have not been dealt with in the MYPD mechanism… as follows:
i.
the Regulatory Clearing Account will be created at the beginning of
the year and continuously monitored. The evaluation of the
account
(for purposes of determining the pass-through) will be done towards
the end of Eskom's financial year... with actuals for
the 9 months
and Eskom protections to year end...
...
vii
The adjustments to be included in the RCA will be approved by the
Energy Regulator [ie. NERSA] in terms of the MYPD mechanism
."
[12]
The
RCA is a depository for qualifying variances between ESKOM's approved
revenue and actual expenditure in the MYPD3 determination.
[13]
[7]
On 10 November 2015, ESKOM submitted to NERSA an RCA application in
respect of the first year of the MYPD3 period (i.e. 2013/14
financial
year) (the RCA Application).
[14]
[8]
According to the Organisation Undoing Tax Abuse (OUTA),
[15]
the applicant in this matter previously known as the Opposition to
Urban Tolling Alliance, the RCA Application
is
an attempt by ESKOM "to claw back R22.8 billion consisting of R
11.723 billion for a short fall in projected sales and R
11.066
billion for over expenditure, of which R8.024 billion was on diesel
to run the Open Cycle Gas Turbines, in the 2013/2014
financial
year".
[16]
Further, OUTA
says that, the aim of ESKOM's RCA Application is to recoup the
aforesaid money through the 16.4% tariff increase in
the price of
electricity in the 2016/2017 financial year. The tariff increase is
effective from 01 April 2016 for ESKOM's direct
consumers, like
municipalities and 01 July 2016 for consumers buying electricity from
municipalities. The price charged by municipalities
for electricity
consumption, will include the increased tariff, plus other
recoupments permissible by law.
[17]
[9]
On the other hand, ESKOM says the RCA Application is "driven
substantially by revenue under-recovery and higher primary
energy
costs to meet demand, whilst operating in a constrained electricity
system. The determined RCA balance is motivated with
evidence for
prudent scrutiny by NERSA".
[18]
[10]
NERSA says that "ESKOM applied for an RCA balance of R22 789m in
its favour.
[19]
In terms of
the provisions of the MYPD Methodology, the Energy Regulator [i.e.
NERSA] has to, upon application by Eskom, assess
certain qualifying
allowed [sic] revenue and expenditure against actual revenue and
expenditure".
[20]
[11]
On 14 November 2015 NERSA published a notice in terms of which
members of the public were invited to furnish written comments
on the
RCA Application.
[21]
The
same notice advised that the RCA Application was available on NERSA's
website and gave details where written submissions
were to be
forwarded. It also provided details of when and where public hearings
were to take place.
[22]
Some
of the hearings were later extended, due to popular interest, whilst
others were cancelled, due to lack of interest. Representatives
of
OUTA attended one of the meetings on 05 February 2016 in Midrand,
Gauteng Province and later on, there were further engagements
between
NERSA and OUTA.
[23]
[12]
It is submitted by OUTA that NERSA committed during the above
mentioned engagements to make an "informed decision"
and to
furnish "full reasons for decision" i n respect of the RCA
Application.
[24]
I hasten to
say that reassuring as the commitment may have been, it wasn't
necessary. NERSA had to act likewise. There is no room
offered by the
statutory regime it operates in, to do otherwise.
[13]
On 01 March 2016 NERSA published its decision regarding the RCA
Application (the Decision).
[25]
The essence of the Decision was that the standard tariff for ESKOM's
customers is increased by 9.4% for the 2016/17 financial year.
[26]
NERSA stated in the same announcement that reasons for the Decision
will be available in due course. This is the genesis of this
matter
and the other matter referred to above.
[27]
[14]
On 03 March 2016, OUTA sent correspondences to NERSA enquiring about
the reasons for the Decision. There was no response by
NERSA until 16
March 2016.
[28]
In its
response NERSA advised that the reasons for the Decision will be
furnished once the process of determining the confidential
information
[29]
submitted by
ESKOM has been concluded. From 17 to 19 March 2016, OUTA says it was
seeking legal counsel. On 22 March 2016 OUTA
demanded from NERSA and
ESKOM an undertaking by 12h00 on 23 March 2016 that implementation of
the scheduled tariff increase in
terms of the Decision will be
delayed until later, due to the absence of reasons and the imminence
of the effective date of the
tariff increase.
[30]
Evidently, no agreement was reached in this regard. Consequently, the
application was issued and served on 24 March 2016. OUTA
says it
launched the application in the public interest
[31]
and as an electricity consumer within the metropolitan municipality
of the City of Johannesburg. NERSA and ESKOM opposed the application,
whilst the fourth respondent observed the proceedings through legal
representatives. The other respondents unaffected by the relief
sought, played no part.
[15]
However, on 29 March 2016 NERSA furnished reasons for the
Decision.
[32]
This was before
either of the respondents had filed opposing papers. As stated above,
NERSA and ESKOM filed or may I rather say
"handed up" their
respective answering affidavits moments before the hearing commenced
on 31 March 2016. Naturally, the
reasons furnished for the Decision,
had materially affected OUTA's case or submissions made in its
papers. Therefore, there was
always going to be very eventful
consequences.
Application
to strike out
[16]
Due to the stringent time periods imposed in the notice of motion for
filing papers and the public holidays, ESKOM could only
prepare a
detailed answering affidavit in the other related matter (the
Borbet
matter),
discussed
above.
[33]
In this matter
ESKOM's answering affidavit is a paltry 5 paragraphs. It sought to
incorporate the answering affidavit in the
Borbet
matter
through
the following statements in the short answering affidavit for this
matter:
"1.3
I am the deponent to an answering affidavit brought [sic] in the
related application by Bobert [sic] and Others, case
number 24364/16,
copy of which is attached for convenience. In the urgent
circumstances in which I am obliged to depose, I confirm
the contents
of that affidavit and ask that same be regarded as incorporated
herein.
1.4
For the reasons set out in that affidavit, I ask that the present
application, too, either be struck from the roll on grounds
of
non-compliance with Ru le 6(12), or dismissed, in either event with
costs, including the costs of three counsel."
[34]
[17]
OUTA filed a replying affidavit. However, it objected to the
incorporation of the answering affidavit in the
Borbet
matter
by
means of the above quoted paragraphs or submissions in ESKOM's
answering affidavit. It applied for a striking out of the two
paragraphs, in ESKOM's answering affidavit, quoted above.
[35]
The essence of OUTA's objection appears to originate from the old,
but timeless, decision of
Stephens
v De Wet
[36]
cited
in the following
dictum
of
Helen
Suzman Foundation v President of the Republic of South Africa and
Others; Glenister v President of the Republic of South Africa
and
Others
[37]
:
"…a
"vexatious" matter refers to allegations which may or may
not be relevant but are so worded as to convey
an intention to harass
or annoy;
[38]
and "irrelevant"
allegations do not apply to the matter in hand
[39]
and
do not contribute one way or the other to a decision of that matter
.
[40]
[18]
The essence of OUTA's complaint, as I understood it, is that it is
difficult to adequately make out the nature and extent of
the case or
defence they had to meet from ESKOM due to the incorporated averments
having been made in response to the facts in
the
Borbet matter
and
not in relation to the specific allegations in this matter.
[19]
Mr RJ Raath SC (appearing with Mr E Van As) on behalf of OUTA
submitted that there is nothing in Eskom 's answering affidavit
that
applies to OUTA's case and relied on
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
[41]
in this regard. In
Swissborough
it was
held that "it is not open to an applicant or a respondent to
merely annexe [sic] to its affidavit documentation and
to request the
Court to have regard to it. What is required is the identification of
the portions thereof on which reliance is
placed and an indication of
the case which is sought to be made out on the strength thereof."
[42]
Mr JJ Gauntlett SC (appearing with Mr SM Lebala SC and Ms EM
Baloyi-Mere) on behalf of ESKOM, pointed out that the current
authority
on the issue was in the decision of
Minister
of Land Affairs and Agriculture v D and F Wevell Trust
[43]
in
which the court said:
"It
is not proper for a party in motion proceedings to base an argument
on passages in documents which have been annexed to
the papers when
the conclusions sought to be drawn from such passages have not been
canvassed in the affidavits. The reason is
manifest - the other party
may well be prejudiced because evidence may have been available to it
to refute the new case on the
facts."
[44]
[21]
Be that as it may, I do not understand either
Swissborough
or
Minister
of Land Affairs v Wevell Trust
to
support OUTA's striking application. In both these decisions and
others I am aware of,
[45]
documents were attached to affidavits as annexures and the deponents
sought the wholesale reliance on annexures, without establishing
the
specific parts of the annexures they relied on and thereby
establishing their probative value. In this matter there is a
different
factual matrix. The deponent to ESKOM's affidavit did not
simply rely on a document attached to his affidavit. He relied on his
own affidavit contemporaneously deposed to in a related matter.
[46]
The other matter, although premised on a slightly different
background was precisely about the same subject matter, as in this
matter: the Decision furnished without reasons. Therefore, not only
was the material sought to be incorporated relevant, but the
deponent
of the impugned affidavit established the veracity of the otherwise
"extrinsic" material. It is a different
matter where
reliance is on a "mass of material contained in the record of an
enquiry''
[47]
or as a simple
annexure to an affidavit.
[48]
But, I am not to be understood to be saying that, there were no
problems with the reading of the incorporated material. I had
particular problems with the cross-referencing which was essentially
non-existent. However. I do not agree that the averments were
vexatious or irrelevant.
[22]
Essentially, an applicant for a striking out has to satisfy two
requirements. Firstly that the matter sought to be struck out
is
scandalous, vexatious or irrelevant. Secondly, the adjudicating court
ought to be satisfied that if such matter is not struck
out, the
complaining party would be prejudiced.
[49]
I have already found no existence of vexation or absence of relevance
in the impugned material. Outstanding, is the determination
of
whether or not there was prejudice to OUTA
[23]
Mr Raath admitted that despite the difficulties posed by the format
of ESKOM's submissions and therefore OUTA "not knowing
what was
coming", he indicated existence of no prejudice on the part of
his client. Tentative, as the concession may have
seem at the time,
there was indeed no prejudice. OUTA has essentially crafted its case
and submissions in the form of legal argument
premised on the
interpretation of sections 10(2) and (3) of NERA. This may be the
reason why it did not seek to supplement its
papers, despite the
intervening delivery by NERSA of the reasons for the Decision.
[24]
Mr Gauntlett had actually submitted, correctly so in my view, that
the courts invariably offers latitude in this regard when
prevailing
circumstances permit. In my view prejudice would lie in the rejection
of ESKOM's affidavit attached to its answering
affidavit, although
again this would not have precluded ESKOM from raising legal argument
in response to OUTA's case. At most ESKOM
assumed a risk in
approaching this matter as it did, as the form it used to advance its
grounds of opposition may not have effectively
shielded it from
OUTA's challenges.
[25]
It was suggested by Mr Raath and agreed to by all involved, including
the court, that the ruling regarding the striking out
application be
made jointly with the ruling in respect of the main application. At
the end, the application to strike-out was dismissed,
with no order
as to costs. I did not think that OUTA's conception and mounting of
the application was ill-advised for it to be
mulcted with costs of
the application.
Relief
sought
[26]
The relief sought by OUTA, on an urgent basis in terms of this
application, is:
"2.
That a declarator be granted that the furnishing of the reasons
intended in section 10(2) of the Energy Regulation Act
40 of 2004
constitutes a jurisdictional fact and condition precedent for the
implementation of any new tariffs to be granted by
the second
respondent for the supply of electricity;
3.
That the first respondent be ordered to deliver the reasons of
decision as intended in section 10 of the National Energy Regulatory
Act 40 of 2004 to the applicant within 14 calendar days from date of
this order relating to the decision taken on the 1
st
of
March 2016, permitting the second respondent to increase the standard
electricity tariff chargeable to standard electricity
tariff
customers by 9.4% for the 2016/2017 financial year, which increase is
to commence on the 1
st
of April 2016 for customers
purchasing electricity directly from Eskom, per the
Regulatory
Clearing Account (RCA) Application- third Multi Year Price
Determination (MYPD3) Year 1
(2013/14) (the decision).
4.
That the first respondent is interdicted from publishing and/or
implementing the increase in the Government Gazette of the standard
electricity tariff chargeable to standard electricity tariff
customers of 9.4% for the 2016/2017 financial year as per the
decision,
which increase is to commence on the 1
st
of
April 2016 for customers purchasing electricity directly from the
second respondent.
5.
That the second respondent is interdicted from implementing the
increase to 9.4% of the standard electricity tariff, chargeable
to
standard electricity tariff customers of 9.4% or the 2016/201 7
financial year as per the decision.
6.
That the interdict in paragraph s 4 and 5 supra will apply for 30
days from date of publication of the reasons intended in section
10(2) of the National Energy Regulatory Act 40 of 2004 by the first
respondent.
7.
The Costs
of the Application if opposed."
[50]
[27]
Prayer 3 of the relief became unnecessary due to delivery of the
reasons by NERSA on 29 March 2016. OUTA sought and was granted
a
minor amendment to prayer 4.
[51]
There were to be other attempts to amend the number of days relating
to the duration of the interdict in prayer 6. I will talk
about this
later below.
[28]
No relief was sought against third, fourth and fifth respondents,
although fourth respondent had counsel on a watching brief
at the
hearing.
[29]
Although, the implications of all these would become clear when
dealing with submissions relating to the issue of urgency,
I think it
is apposite to deal with some procedural aspects of this matter. From
what is discussed above under background, it is
clear there that,
OUTA's application was precipitated by the absence of reasons for the
Decision. The crafters of its founding
papers sought, in terms of
prayer 3, a direction by this Court for NERSA to furnish the reasons.
A declarator is sought in terms
of prayer 2 that the reasons should
have or should always accompany decisions of NERSA contemplated in
section 10 of NERA. Also,
the urgency of the matter (in prayer 1) is
grounded upon the absence of reasons. The reasons, as stated above,
were furnished on
29 March 2016. However, despite the changed
circumstances, OUTA did not seek formal supplementation of its
papers. On the other
hand, the opposing papers by NERSA and ESKOM
(the latter with its patent shortcomings discussed above)
[52]
were well cognisant of the fact that the reasons had been furnished.
The result is or was a mismatch of submissions located in
different
circumstances.
[30]
However, OUTA ultimately and, perhaps as a cure to these patent
defects, transformed its case to only legal submissions in
respect of
section 10 of NERA. Again, due to the urgent circumstances of this
matter, OUTA was the only party able to hand up heads
of argument at
the hearing of this matter. I will say more under the heading on
urgency, but suffice for now that the enrolment
of this matter was
not fair to the administration of the roll of this Court. There was a
different approach available.
[53]
[31]
I deal next with the submissions made on behalf of the contending
parties and employ headings and subheadings along the lines
of the
relief sought herein.
Points
in limine
[32]
NERSA raised four points in
limine
in
reaction to OUTA's papers and relief sought in terms thereof. One of
these was that the 278 local authorities
[54]
should have been joined to these proceedings as they have direct and
substantial interest. The other points in
limine
related
to urgency; restraint of the exercise of statutory power and the
incompetence of interim relief. There may be some merit
in the
objection of non-joinder of the municipalities, but I do not deem it
warranted to make a finding on this. It had no bearing
on the outcome
of this matter. I will deal with the other objections as part of the
submissions by NERSA below.
A
declaratory Order or not? Interpretation of section JO of the
National Energy Regulation Act 40 of 2004 (NERA)
[33]
It is stated above that NERA enabled the establishment of and set out
the objectives for NERSA. Its section 10 is the most
relevant for
this matter and it reads:
"10.
Decisions of Energy Regulator.-(
1 ) Every decision of the Energy
Regulator must be in writing and be-
(a)
consistent with the Constitution and all applicable laws;
(b)
in the public interest;
(
c
)
within the powers of the Energy Regulator, as set out in this Act,
the Electricity Act, the Gas Act and the Petroleum Pipelines
Act;
(d)
taken within a procedurally fair process in which affected
persons have the opportunity to submit their views and present
relevant
facts and evidence to the Energy Regulator;
(e)
based on reasons, facts and evidence that must be summarised and
recorded; and
(
f
)
explained clearly as to its factual and legal basis and the reasons
therefor.
(2)
Any decision of the Energy Regulator and the reasons therefor must
be available to the public
except information that is protected
in terms of the Promotion of Access to Information Act, 2000 (Act No.
2 of 2000).
(3)
Any person may institute proceedings in the High Court for the
judicial review of an administrative action by the Energy Regulator
in accordance with the Promotion of Administrative Justice Act, 2000
(Act No. 3 of 2000)."
(4)
(a) Any person affected by a decision of the Energy Regulator sitting
as a tribunal may appeal to the High Court against such
decision.
(b)
The procedure applicable to an appeal from a decision of a
magistrate's court in a civil matter applies, with the changes
required
by the context, to an appeal contemplated in paragraph (a)."
[I
added underlining for emphasis]
[34]
OUTA says that section 10(2) should be read to mean that a decision
of NERSA, as the "Energy Regulator" is to be
simultaneously
accompanied by reasons, otherwise it is inchoate. It submitted that
on a proper interpretation of section 10(2),
read with section 10(3),
the issuing of reasons by NERSA for its decision, is a jurisdictional
fact or condition precedent or both,
for the implementation of any
new tariffs approved by it.
[55]
According to OUTA the corollary and direct implication thereof is
that members of the public, ought to be afforded a reasonable
opportunity to consider their positions regarding accessing the
remedies contained in sections 10(3) and (4), if so minded or
advised. OUTA applied for the granting of a declarator on the basis
of its aforesaid interpretation: that the furnishing of reasons
required in terms of section 10(2) of NERA constitutes a
jurisdictional fact
[56]
and
condition precedent for the implementation of any new tariffs to be
charged by ESKOM for the supply of electricity.
[35]
The following represents the crux of OUTA's submissions in this
regard. It is hard to imagine an administrative action comparable
to
the Decision, which could impact upon the interests of the public at
large. These powerful considerations inspired the creation
of the
special remedy in terms of sections 10(2) and (3) of NERA. Therefore,
the making of a decision and giving of reasons ought
to be
"simultaneous, expeditious, current or immediate". This
premised on interpretational exercise whose point of departure
is in
the
dicta
of the
decision of
National
Joint Municipal Pension Fund v Endumeni Municipality.
[57]
Further,
section 10 has to be given a purposive interpretation. The purpose
"which is usually clear or easily discernible"
in
conjunction with the appropriate meaning of the language of the
provision, is used as a guide to enable the interpreter to ascertain
the intention of the legislature.
[58]
Accordingly, it is clear from a reading of section 10(2) that the
decision has to be accompanied by reasons therefor, as the
legislature
has mentioned decision and reasons in the same breath;
section 10(2) is "intrinsically coupled" to section 10(3);
the
two subsections deal with the same subject-matter and are to be
read together as a unitary enactment.
[59]
The primary reason or motivation for the simultaneous furnishing of
reasons in terms of section 10(2) can only be to enable review
or
appeal proceedings, as contemplated by sections 10(3) and (4), by
affected members of the public.
[36]
Further, it was submitted on behalf of OUTA that, Parliament had
intended for at least a brief period to be allowed for consideration
of the reasons issued simultaneously with the decision for purposes
of review proceedings. The ends and aims of the statutory design
of
section 10 would not be achieved if the reasons are only to be given
at the time of implementation of the decision like it is
the case in
this matter. Also, the legislature harboured special intentions and
purpose for NERSA through the requirements in section
10(3),
notwithstanding the existing standards, rights and procedures
designed for administrative justice by the Promotion of
Administrative
Justice Act 3 of 2000 (PA.TA). All these enable an
immediate review, capable of being mounted, from the moment the
decision is
made public. If the furnishing of the reasons was not to
be simultaneous with the announcement of the decision made by NERSA,
the
provisions in PAJA would have sufficed and sections 10(2) and (3)
would not be necessary.
[37]
Another question [rhetorical if you will] cropped into my mind rather
belatedly: what would have been OUTA's stance, if NERSA
had delayed
the Decision until when the reasons were available to release same
together? Doesn't the real question go to the substance
of the
decision made and the reasons therefor, rather than the timing? This
is not to downplay the requirement of administrative
fairness or
justice inherent in NERSA's activities.
[38]
When I enquired from him why the legislature would have placed NERSA
in such onerous position, Mr Raath submitted that it was
due to the
critical or important nature of the mandate of NERSA. According to
him the history of this matter explains the declaratory
order sought.
And that although OUTA has not yet decided on whether or not to
review the Decision, there ought always to be an
opportunity
following the furnishing of reasons, for deciding and launching
review proceedings, if so minded or advised. Therefore,
as OUTA was
entitled to reasons to the Decision, it should be restored to the
position it would have been had the reasons accompanied
the Decision.
Some form of a restoration order as to time or time period, it is
submitted. I was not referred to a specific authority
nor am I aware
of any, in regard.
[39]
Mr D Fine SC (appearing with A Pamtazos) on behalf of NERSA,
submitted that there was no immediacy in sections 10(2) and (3)
or
truncation of the time period. There is no requirement in NERA to
furnish urgent reasons. It does not appear in its provisions
and
there was no need for the Legislature to place NERSA under a
different time periods from those stipulated in PAJA. He also
argued
that the interpretation debate is academic as the reasons for the
Decision have been furnished.
[40]
Mr Gauntlett also submitted that the interpretation OUTA seeks to
give to sections 10(2) and (3) of NERA is wrong. What OUTA
is seeking
is essentially to ask this Court, on an urgent basis, to read in (or
"write in") the following between sections
10 (2) and (3):
"furnished before any such decision is implemented". This
is not permitted and the courts have long been
wary of reading in
words into statute.
[60]
In
National
Director of Public Prosecutions and Another v Mohamed NO and
Others
[61]
the
court said:
''We
have adopted the view, consistently enunciated over the years by the
courts, that
"words
cannot be read into a statute by implication unless the implication
is a necessary one in the sense that without it
effect cannot be
given to the statute as it stands"
[62]
and
that such implication must be necessary in order "to realise the
ostensible legislative intention or to make the Act workable".
[63]
[41]
I agree that the interpretation given to section 10(2) by OUTA
amounts to reading in the relevant words as generally suggested
by Mr
Gauntlett. There is no indication of the Legislature's intention in
support of OUTA's interpretation. There is also nothing
in the
provision to suggest that a decision of NERSA has to be announced
simultaneously with reasons therefor. In my view, there
is no doubt
that, reasons have to be made available to the public, but they may
be made available at a later stage. As to the reasonableness
of the
intermission between the decision and the furnishing of reasons for
the decision, that is, perhaps, a debate for another
day elsewhere.
Also, in my view, this will depend on the applicable factual matrix.
One ought not to lose sight of the fact that,
the reasons are
subservient to the decision made. Although NERSA has to provide them,
it is conceivable that for some decisions
by NERSA there may not even
be a need to consider the reasons before an affected party challenges
the particular decision.
[42]
However, I find the declaratory unavailable for another reason. This
has more to do with purposive interpretation urged by
OUTA. In my
view the interpretation by OUTA amounts to stretching of the
legislative provision. The word "decision" is
not defined
in the provision or the Act itself (i.e. NERA). The word is included
in section 10(4) of NERA. In the latter provision
the word is not
accompanied by any reference to "reasons therefor". In
section 10(3) heavily relied upon by OUTA there
is no mention of
"decision" or "reasons therefor", but "an
administrative action by the Energy Regulator",
being NERSA.
Section 1 of NERA says administrative action has the meaning ascribed
to it in PAJA. This, in my view, makes the provision
broader than the
restricted meaning afforded it by OUTA. Therefore, the review
proceedings availed in terms of section 10(3) of
NERA are not only
for decisions of NERSA but also its omissions or failure, in as far
as they constitute its administrative action.
[64]
To borrow from parlance in the law of delict, NERSA's conduct, as
manifested by its acts or omissions, is reviewable. Therefore,
the
relief alluded to in section 10(3) is not limited to the provisions
of section 10(2) but the whole of NERA wherever NERSA's
administrative action is involved. The purpose of section 10(3) is to
avail a remedy for breach (to the extent that such would
constitute
administrative action) by NERSA of the provisions of NERA, including
section 10 thereof and possibly the raft of other
legislation
applicable to NERSA. I am mindful of the heading to section 10 (i.e.
"Decisions of Energy Regulator"), but
refuse to be limited
thereby in my aforesaid interpretation.
[43]
Besides, OUTA has other available remedies than a declarator,
[65]
including in terms of the provisions of PAJA. Further, the reasons
for the Decision had already been furnished, therefore declaratory
relief is or was unwarranted. PAJA provides for reasons and section
10(3) refers to PAJA. This, as Mr Gauntlett aptly puts it,
signifies
some "dovetailing" of the reasoning in the two statutory
regimens.
[44]
A submission was made by Mr Gauntlett to the effect that, a
declarator on interpretation of legislation is not competent on
an
urgent basis. I couldn't find any authority for this. But, I loath to
rule this impossible. Other circumstances may well justify
the
granting of declaratory relief on an urgent basis.
[45]
For the above considerations I refused relief sought in terms of
prayer 2 of OUTA's notice of motion.
[66]
Mr Raath had submitted that should the declarator not avail OUTA, he
would accept that the remainder of the relief would also not
be
possible. However, for completeness, I will deal with submissions
made relating to the granting of an interdict.
Requirements
for final interdict
[46]
OUTA sought prohibitory "final" interdict, although with a
stated lifespan or duration. The Court was requested to
impose an
interdict, in terms of prayers 4 and 5 of OUTA 's notice of motion
for a period of 30 days from date of publication of
the reasons for
the Decision (i.e. 29 March 2016). However, during oral arguments,
and actually in reply, counsel for OUTA tentatively
made submissions
aimed at reducing the 30 day period to 10 days or even shorter, but
this was never consummated.
[67]
In my view - and I will explain this fully below - it would not have
mattered to the outcome, whether or not the "final"
interdict is for 30 days or 10 days.
[68]
[47]
According to OUTA the 30 day interdict is for the preservation of its
and the public's rights, and to afford them "a reasonable
opportunity to study the written reasons for the Decision in order to
enable them to decide whether the reasons offered justify
the
institution of a review application as envisaged in section 10(3), or
appeal in terms of section 10(4), of NERA".
[69]
[48]
NERSA denied that final relief is possible for 30 days and argued
that, OUTA should have sought interim relief interdicting
implementation of the Decision, pending a review application. This, I
agree, is normally what a temporary or interim interdict
entails.
[70]
[49]
The
locus
classicus
regarding
requirements for an interdict is still
Setlogelo
v Setlogelo.
[71]
They are: a clear right, injury actually committed or reasonably
apprehended, and the absence of similar protection by any other
ordinary remedy. I briefly deal with the submissions made by the
pa1iies in this regard and contemporaneously express my views
thereon.
Clear
right
[50]
OUTA submitted that the public has "a constitutional right to
administrative action that is lawful, reasonable and procedurally
fair". The right to fair administrative action is inclusive of
the right to written reasons and "the right to challenge
decisions by administrators before they have effect of becoming
practically reversible", it was submitted. Further, OUTA relied
on what it calls "special rights" created in terms of
section 10 of NERA. NERSA challenged the soundness of this
submission.
It argued that in terms of the principle of subsidiarity,
where the legislature has legislated mechanisms for securing
statutory
rights those mechanisms have to be used. Therefore, OUTA
has to follow PAJA enacted to give effect to constitutional right to
fair
administrative action.
[72]
Section 10 of NERA reinforces the applicability of PAJA by reference
thereto. I agree.
Injury
committed or reasonably apprehended
[51]
OUTA expressed concerns regarding the reversal of the Decision at a
later stage by the Court It submitted that such reversal
would create
an administrative burden on ESKOM to adjust accounts of its
customers, and exacerbate the billing systems problems
manifested by
inaccuracy or audit problems of the 278 municipalities countrywide.
It was also submitted that there is case law
supporting the
contention that a court would be reluctant to reverse or order that
recovery of monies paid, even when the Decision
is set aside.
[73]
Both NERSA and ESKOM countered this by relying on the following
dicta
from
the decision of
National
Treasury and others v Opposition to Urban Tolling Alliance and
others
[74]
,
in
which coincidentally OUTA was a party, albeit by its old name
[75]
:
"The
Court rejected as not persuasive enough the submission that should
the review be successful SANRAL will be obliged to
refund the
millions of aggrieved motorists the toll charges. It is questionable
why the harm motorists are likely to face is irreparable.
Should the
decision to impose toll on the roads be set aside by a court,
I
know no reason why the affected motorists would not have an
enrichment claim to recover toll so paid to SANRAL or why the
National
Executive Government or SANRAL would validly resist repaying
the toll charges".
[76]
[I
added underlining for emphasis]
I
see no reason for ESKOM to disobey with impunity a decision of a
court of law ordering refund of its customers once the tariff
increase is set aside following a successful review.
[52]
Besides, OUTA failed to establish that "an injury will kick in"
if not granted interdictory relief.
Alternative
adequate remedy
[53]
OUTA submitted that there will be problems with a review once the
decision is implemented. Mr Raath on OUTA's behalf submitted
that a
review court retains a so-called "remedial discretion" not
to grant remedial relief setting aside the impugned
administrative
action even if found to be unlawful.
[77]
The exercise involves the striking of a balance between applicant's
interests and those of the respondents, as it is impermissible
for
the court to confine itself to interests of only one side.
[78]
According to Mr Raath this resonates with the provision for a "just
and equitable" order envisaged in section 8 of PAJA.
I am not
certain that I fully benefit from the purpose for these submissions.
This is so, because OUTA has also submitted that
due to the
non-inclusion of the reasons when the Decision was announced, there
is a material infringement of right to fair administrative
action.
Should this indeed be so, it would trigger remedies in terms of PAJA.
NERSA submitted that judicial review is adequate
alternative remedy
and nothing in law stops OUTA from reviewing NERSA's decision as
opposed to interdicting the tariff. I agree.
In fact, this avenue has
always been considered open by OUTA. The only impediment perceived by
OUTA was its interpretation of sections
10(2) and (3) of NERA as
discussed above. It should be borne in mind that, OUTA says it should
have been afforded time (between
the Decision and the furnishing of
its reasons, and the implementation of the Decision) before
considering whether or not to review
the Decision. I have already
rejected this interpretation above.
Balance
of Convenience
[54]
This is not a requirement for an interim interdict, wherein there is
need to establish a
prima
facie
right
as opposed to a clear right, required in final interdict.
[79]
However, due to the hybrid nature of the relief sought by OUTA, a
brief discussion of this is necessary. It was submitted in this
regard that ESKOM stands to suffer considerable financial losses due
to inability to collect tariff monies during the 30 days'
period,
should the interdict be granted. One need only refer to the reasons
given for the Decision to determine why ESKOM required
the tariff
increase, in the first place, it was submitted.
[80
[55]
Of critical importance, in my view, is that according to NERSA,
should the tariff have been interdicted there would have been
no
tariff applicable at all as from 01 April 2016 onwards, as section
15(2) of ERA proscribes the charging of the tariff other
than the one
approved by NERSA.
[81]
Mr
Raath retorted that the tariff which applied before 01 April 2016
would continue to apply. I disagree. My understanding of the
tariff
regulation regime applicable here is that, each tariff is borne by
its own circumstances. So the previous tariff as approved
by NERSA
could never have been the default or fall-back position, when the
increased tariff was set aside. The reason being that
the
justification of the tariff approved and imposed, is in terms of the
realities of ESKOM's business, as approved by NERSA.
[56]
ESKOM had actually submitted that the failure to implement the 9.4%
price increase would have had the following consequences.
[82]
The RCA process is about money already spent, which ESKOM borrowed
from external sources, and which ESKOM is now seeking to recover.
ESKOM's credit rating would have been affected with ripple effect to
the South African economy and directly affecting ESKOM's third
party
loan obligations. There would also have been a risk of power outages,
colloquially called "load shedding". To the
extent
required, I found all these to militate for refusal of the
interdictory relief sought by OUTA.
Urgency
and prospects of success
[57]
As indicated above, the application was set down for 31 March 2016.
The relief sought was to interdict the tariff increase
which took
effect on 01 April 2016. I do not think it was all impossible for
OUTA to issue and move the application earlier. With
due respect to
religious adherents, the time period for exchange of papers could
have included the holidays and the Court given
a few more days to
have the full set of papers. The nature and magnitude of the matter
deserved that kind of approach. The set
down of the matter hours
before the event sought to be interdicted, may have been befitting of
the role played by NERSA and ESKOM
in the Decision and the
reasons,
[83]
but it did not
bode well for administration of the urgent court roll of this Court.
Further, there was no prior request to this
Court or the senior judge
on urgent court duty that this matter and the
Borbet
matter
be
heard together. The court fi les for the matters were not ready by
the preceding Thursday in terms of the practice manual of
this Court
and there was no attempt to have them ready until the morning of the
day of hearing. There was always a target date,
being 01 April 2016,
and therefore, the programming of the events herein by the parties
should have been quite mindful of this
possible deadline.
Practitioners and their clients, must never lose sight of the fact
that in the middle of every dispute and whatever
prevailing
atmosphere around the parties, the Court ought to be placed in the
best possible situation in dispensing justice. These
remarks should
carry less disparaging connotation and rather be more encouraging of
the best possible behaviour from practitioners,
especially in the
testing realities of our urgent courts.
[58]
To conclude on this the following submissions were made regarding
urgency, further to what appears above. OUTA submitted that,
without
the interdict even a well-grounded and entirely justifiable review
may be rendered unattainable once the tariff increase
is implemented,
due to the disruptive effect of the reversal thereof. "The horse
would have bolted'', it is submitted. However,
OUTA does not say
anything about the disruptive effect of an interdict on ESKOM,
particularly one imposed with no pending review
proceedings. OUTA
said that it instituted the application without delay, and that NERSA
made everything worse by shifting the date
of the Decision from 25
February 2016, as initially planned, to 01 March 2016. When the
Decision was announced, OUTA had less than
a month in which to
request reasons; consider the reasons and institute review
proceedings or an appeal in terms of section l0
of NERA. It had to
institute the proceedings urgently as an application in the normal
course wouldn't have been possible before
01 April 2016. It cannot be
blamed for its proactive attempts to get NERSA to furnish the reasons
for the Decision.
[59]
NERSA and ESKOM bemoaned the amount of time they were given to file
their papers. This they say, is despite OUTA having participated
during the public hearings and thereafter,
[84]
and the Decision having been announced at an electricity
sub-committee meeting open to the public. The sub-committee made a
recommendation
to NERSA.
[85]
NERSA said that as a matter of practice it gave ESKOM 14 days after
publication of the Decision to make submissions regarding
confidentiality concerns. NERSA received the submissions, rejected
some and accepted others, and published the reasons.
[86]
In their view OUTA engineered or self-induced the alleged urgency in
this matter. There was no urgency from the start. It is pointed
out
in this regard that, OUTA's case is that there was a breach, as far
back as 01 March 2016, when the Decision was announced
without
reasons. Therefore, there was no need for OUTA to wait for a month
before launching the application. I disagree that there
was no
urgency at all. Perhaps, there was no urgency of the degree claimed
by OUTA. But, the absence of reasons for the Decision
and the
imminence of the implementation date of the Decision, in my view,
justified the enrolment of the matter on an urgent basis,
particularly to obtain reasons for the Decision. Reasons were
furnished less than 2 days before the hearing.
[60]
Regarding prospects of success, further submissions were made as
follows. It was submitted that OUTA did not give adequate
reasons why
it may need to review the Decision, except to state that there were
large scale overruns on ESKOM's capital expenditure
and media reports
of mismanagement warranting close scrutiny of ESKOM.
[87]
There is no adequate foundation laid for a review of the Decision. No
irregularities have been indicated and no one is better qualified
than NERSA to make the Decision.
[88]
OUTA and the public will have an opportunity to review the Decision
in the ordinary course in terms of PAJA. No case is made for
the
merits of any review. I agree. In my view OUTA elevated its
perceptions about ESKOM to facts competent to set aside the Decision
of NERSA. Yes, a review court may find something against the
Decision, but for this matter there is no shred of evidence
justifying
a negative view of the Decision even on a
prima
.facie
basis.
These considerations weighed on my mind when I made the order. The
considerations included those premised on the doctrine
of separation
of powers, briefly discussed next.
Separation
of powers
[61]
It is beyond argument, in my view, that the nature of the relief
sought herein belongs to the "heartland of executive
action".
[89]
There was no
reason to interdict a decision of an independent regulatory body when
there was no indication of illegality. Considerations
relating to the
doctrine of separation of powers harm require that an interdict in
the form currently sought only be granted in
the "clearest of
cases" and after careful considerations of the separation of
powers harm.
[90]
Conclusion
[62]
Against the backdrop of all of the above, I found no merit in OUTA's
application. Regarding the issue of costs, Mr Raath argued
that there
was no reason for costs of three counsel, but appeared to accept that
a cost order directing payment of costs for two
counsel was
appropriate. It is also my view that there is no justification for
costs of the third counsel to be recoverable on
a party and party
basis in this matter.
Order
made
[63]
For the abovementioned reasons, I made an order in the following
terms:
(a)
that the application by the applicant to strike out the second
respondent's answering affidavit is dismissed with no order as
to
costs; and
(b)
that, the application is dismissed and the applicant is directed to
pay costs of the application, including costs consequent
upon the
employment of two counsel.
___________________
K. La
M. Manamela
Acting
Judge of the High Court
08
April 2016
Appearances:
For the
Applicant RJ
Raath SC
E
Van As
Instructed
by Len Dekker & Associates
Inc,
Pretoria
For the First
Respondent D
Fine SC A Pamtazos
Instructed
by Hogan Lovells
(South
Africa) Inc, Johannesburg
c/o
Macintosh Cross & Farquharson,
Pretoria
For the Second
Respondent JJ
Gauntlett SC
SM
Lebala SC
EM
Baloyi-Mere
Instructed
by Ledwaba Mazwai
Attorneys,
Pretoria
For the Third
Respondent No
appearance
For the Fourth
Respondent LM
Montsho-Moloisane SC
MM
Mokadikoa
Instructed
by State Attorney, Pretoria
For the Fifth
Respondent No
appearance
[1]
The application was issued on 24 March 2016 and the respondents
given until 29 March 2016 to file opposing papers. However, none
of
the respondents was able to comply with the time periods stipulated
in the notice of motion and their affidavits reached the
court file
literally minutes before the scheduled hearing of the matter.
[2]
See par 63 below.
[3]
See par 25 below.
[4]
The matter of
Borbet
SA (Pty) Ltd and Others v National Energy Regulator of South Africa
and Others,
Case
Number 24364/16 was also enrolled for hearing as an urgent
application on 31 March 201 6. By agreement of the parties it
was
postponed to a date in the future for hearing only as review
proceedings.
[5]
The
National Energy Regulator Act or
NERA was assented to on 30
March 2005 and commenced on 15 September 2005.
[6]
See Jong title and
section 4(1)
of N ERA. The latter reads: "The
Energy Regulator must- (a) undertake the functions of the Gas
Regulator as set out in section
4 of the Gas Act; (
b)
undertake
the functions of the Petroleum Pipelines Regulatory Authority as set
out in section 4 of the Petroleum Pipelines Act;
and (c) undertake
the functions set out in section 4 of the Electricity Regulation
Act, 2006." See pars 57-59 of the founding
affidavit on indexed
pp 21 -22.
[7]
See annexure "IH 1 5" to the founding affidavit on indexed
pp 130-131; pars 59-62 of the founding affidavit on indexed
pp
22-23.
[8]
See par 33 onwards.
[9]
The objects of ERA in terms of its section 2 include:
"(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, efficiency, effectiveness and long-term
sustainability of the electricity supply industry with in 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) … (.f) ... and (g)
facilitate a fair balance between the interests of customers
and end
users, licensees, investors in the electricity supply industry and
the public."
[10]
NERSA, as part of its regulatory role, issues licenses to entities
like ESKOM, in terms of chapter III of ERA.
[11]
See annexure ''IH 16" to the founding affidavit on indexed p
135.
[12]
See annexure "IH 16" on indexed pp 155-156. See further
pars 68-73 of the founding affidavit on indexed pp25-27.
[13]
See annexure "IH 4" to the founding affidavit on indexed
pp 77-78.
[14]
Sec annexure "IH3 to the founding affidavit on indexed pp
54-76.
[15]
OUTA says its main purpose is "the promotion, protection and
advancement of the Constitution of the Republic of South Africa
by
challenging taxation policy and/or the regulatory environment where
the aforesaid is considered to be irrational unfit [sic]
or
ineffective for the purpose intended" and "seeks to
promote a prosperous South Africa with effective, practical
and
enforceable taxation policies, and corrupt free conduct in the use
of taxes collected". See pars 6-8 on indexed p 8;
OUTA 's
constitution (i.e. annexure "IH2" to the founding papers)
on indexed pp 41 -53.
[16]
See par 30 of the founding affidavit on indexed p 12.
[17]
See par 31 of the founding affidavit on indexed p 12.
[18]
See par 3 of the RCA Application (i.e. annexure "IH3" to
the founding affidavit) on indexed p 68.
[19]
N ERSA decided that: "1. The RCA balance of R 11 241 m is
recoverable from the standard tariff customers, local SPAs and
international customers in the financial year 2016/17. 2. The amount
of R 10 257m is recoverable from standard tariff customers
for the
2016/17 financial year only. 3. The amount of R983m is recoverable
from Eskom's local SPA customers and international
customers for the
2016/17 financial year only. 4. Eskom must submit a new MYPD
application within three months, based on revised
assumptions and
forecasts that reflect the recent circumstances." See indexed p
106 (i.e. annexure "IH9"); par
44 of the founding
affidavit on indexed pp 15-16
[20]
See annexure "IH9" to the founding affidavit on indexed p
106.
[21]
See annexure "IH4" to the founding affidavit on indexed pp
77-78.
[22]
Ibid.
[23]
See pars 36- 41 of the founding affidavit on indexed pp 13-14;
annexure "IH7' to the founding affidavit on indexed pp 97-100.
[24]
See pars 39-41 of the founding affidavit on indexed p 14.
[25]
See annexure "IH9" to the founding affidavit on indexed pp
106-107.
[26]
See pars 1-4 of annexure "IH9".
[27]
Refer to par 2, in particular its footnote 4, above.
[28]
See annexure "IH13" to the founding affidavit on indexed
pp 1 13-11 5.
[29]
NERSA or ESKOM or both, relied on section 10(2) of NERA regarding
protection of information in terms of the
Promotion of Access to
Information Act 2 of 2000
. See pars 50-52 of the founding affidavit
on indexed pp 1 7-1 9.
[30]
See annexure "IH14" to the founding affidavit on indexed
pp 116-120. NERSA said that it responded to the letter of
demand
(i.e. annexure "IH14") just before the application was
served on 24 March 201 6 (see par 1 0.4 of NE RSA 's
answering
affidavit on indexed p 242, and annexure "MM1" thereto on
indexed pp 249-251 ).
[31]
See section 38(d) of
The
Constitution of the Republic of South Africa, 1996
(the
Constitution).
[32]
See indexed pp 207-234.
[33]
See par 2 above.
[34]
See indexed pp 281 -282.
[35]
Rule 23 of the Uniform Rules of Court provides thus: (1)...(2) Where
any pleading contains averments which are scandalous, vexatious,
or
irrelevant, the opposite party may, within the period allowed for
filing any subsequent pleading, apply for the striking out
of the
matter aforesaid . .., but the court shall not grant the same un
less it is satisfied that the applicant will be prejudiced
in the
conduct of his claim or defence if it be not granted."
[36]
1920 A D 279
at 282
(Stephens
v De Wet).
[37]
201
5 (1) BCLR 1
(CC)
(Helen
Suzman Foundation).
[38]
See par 5 of the application to strike out on indexed p 355.
[39]
See pars 1 -5 of the application to strike out on indexed p 355
[40]
See
Helen
Suzman Foundation
at
14 par 28, quoted without footnotes.
[41]
1999 (2) SA 279
(T).
[42]
Swissborough
at
324E-F. See generally
Herbstein
and Van Winsen The Civil Practice of the High Courts of South Africa
5
th
ed (Juta Cape Town 2009)
(Herbstein
and Van Winsen)
at
443-444.
[43]
[2008] JOL 21213
(SCA);
2008 (2) SA 184
(SCA)
(Minister
of land Affairs v Wevell Trust).
[44]
Minister
of land Affairs v Wevell Trust
[2008]
JOL 2121
3 (SCA) 1 9 at par 43;
2008 (2) SA 1
84 (SCA) at 200.
[45]
See
Lipschitz
and Schwartz, NNO v Markowitz
1976(3)
SA 772 (W) at 775H;
Port
Nolloth Municipality v Xhalisa and Others
1991
(3) SA 98
(C) 111 B-C.
[46]
See pars 2 and 1 6 above.
[47]
See
Lipschitz
and Schwartz, NNO v Markowitz
1976(3)
SA 772 (W) at 775H.
[48]
See
Port
Nolloth M unicipality v Xhalisa and Others
I
991 (3) SA 98
(C) 1 1 I B-C.
[49]
See
Stephens
v De Wet
282
cited with approval in
Helen
Suzman Foundation
at
14 par 27.
[50]
See notice of motion on indexed pp 1-3.
[51]
An amendment substituting the word "to" for the word “of”
in the phrase “of 9.4% for the 2016/2017
financial year”
was granted at the beginning of the hearing on application from the
bar by counsel on behalf of OUTA
[52]
See pars 1 6-25 above.
[53]
See par 57 below.
[54]
See par 79.2 of the founding affidavit on indexed p 29.
[55]
See par 1 on pp l-2 of OUTA's heads of argument.
[56]
See
SA
Defence and A id Fund v Minister of Justice
1976
(1) SA 31
(C) at 34
in
fin
-
348;
Democratic
Alliance v President of the Republic of South Africa & others
201
2
(1) SA 4
1 7 (SCA);
Democratic
Alliance v President of the Republic of South Africa & others
201
3(1) SA 248 (CC) at pars 20 and 24;
International
Trade Administration Commission v SCAW SA
201
2 (4) SA 61
8 (CC) at par 108 quoting from Harms A DP
[2008] ZASCA 86
;
2008 (6) SA
540
(SCA) at par 8 for a discussion on what constitutes a
"jurisdictional fact".
[57]
2012 (4) SA 593
(SCA)
(Endumeni)
at par
18. See further
Cross-Border
RDA v Central African Road Surfaces
2015
(5) SA 370
(CC) at par 22;
National
Credit Regulator v Opperman
2013
(2) SA I (CC) at footnote 105:
[58]
See
Commissioner
South African Revenue Service v Air World
CC
2008 (3) SA 335
(SCA) at par 25; par 3 on p4 of OUTA's heads of
argument.
[59]
See
Executive
Council Western Cape v Minister of Provincial Affairs and
Constitutional Development
[1999] ZACC 13
;
2000
(1) SA 661
(CC) at 690A;
Aziz
v Divisional Council, Cape
1962
(4) SA 719
(A) at 726E;
S
v Yolelo
1981
(1 ) SA 1002 (A) at 1011 A-B.
[60]
See
Rennie
NO v Gordon and Another N NO
1988
(l) SA 1 at 22E-F, cited with approval in the decision of
National
Director of Public Prosecutions and Another v Mohamed NO and Others
[2003] ZACC 4
;
2003
(5) BCLR 476
(CC) 477 at par 48.
[61]
[2003] ZACC 4
;
2003 (5) BCLR 476
(CC) 477 at pars 48-49.
[62]
See
Bernstein
and Others v Bester NO and Others
1
996 (4) BCLR 449
(CC)
/
1996
(2) SA 75
l (CC) at para 105.
[63]
See
Palvie
v Morale Bus Service (Pty) Ltd
[1993] ZASCA 105
;
1993
(4) SA 742
(A) at 749C.
[64]
Section 1 of PAJA says the following in the material part: “
“administrative action” means any decision taken,
or any
failure to take a decision ...”.
[65]
See
Standard
Bank of SA ltd v Trust Bank of Africa ltd
1968
(1) SA I 02 (T) 105-106.
[66]
See par 26 above.
[67]
This was preluded by a submission in the heads of argument filed on
behalf of OUTA indicating that an amendment to prayer 6 containing
the third interdict will be sought in the light of delivery of the
reasons for the Decision. See par 13 on p15 of OUTA's heads
of
argument.
[68]
There were references on behalf of the participating respondents
during the hearing to this being "a legal absurdity''.
[69]
See par 23 of the founding affidavit on indexed pp 10-11.
[70]
See generally
Herhstein
and Van Winsen
at
1455.
[71]
1914 A D 221
at 227 whereat the court said: "the requisites for
the right to claim an interdict are well known; a clear right,
injury
actually committed or reasonably apprehended, and the absence
of similar protection by any other ordinary remedy."
[72]
See section 33 of the Constitution.
[73]
See par 97 of the founding affidavit on indexed p 37/
[74]
2012 (11) BCLR 1148
(CC)
(Sanral).
[75]
See par 8 above.
[76]
See
Sanral
at par
54.
[77]
See
Chairperson,
Standing Tender Committee v JFE Sapela Electronics (Pty) Ltd
2008
(2) SA 638
(SCA) at par 28;
Moseme
Road Construction
CC
v King
Civil Engineering Contractors (Pty) Ltd
2010
(4) SA 359
(SCA) at par 21 ;
Millenium
Waste Management (Pty) Ltd v Chairperson Tender Board: Limpopo
Province
2008
(2) SA 481
(SCA) at par 23 and in particular par 34;
Bengwenyana
Minerals (Pty) ltd v Genorah Resources (Pty) Ltd
2011
(4)
SA 113
(CC) at par 82.
[78]
Millenium
Waste
at
par 22.
[79]
See
Herbstein
and Van Winsen
at
1471 onwards.
[80]
See par 22 of NERSA's answering affidavit on indexed p 246; par 21
of the reasons for the Decision on indexed p 258; pars 118-123
of
the reasons for the Decision on indexed pp 275-276.
[81]
See par 4 above.
[82]
See par 7.9 of ESKOM's answering affidavit on indexed pp 312-31 6.
Further, it is also submitted that it was common cause that
the
Decision is of national importance. It affects the entire South
African population, commerce and industry alike. Further
that the
current setting is one of international financial volatility and low
economic growth. The amount in question here is
R 1.2 billion which
is a significant amount, particularly for ESKOM's operations going
forward. A failure to implement the Decision
would result in
"massive irrecoverable loss to Eskom" and trigger serious
adverse macro-economic consequences for South
Africa.
[83]
Outa submitted that "NERSA and ESKOM are the architects of
their own urgency in bringing the electricity tariff into effect
almost two years after the requisite date in terms of the MYPD
methodology" and that NERSA delayed the Decision from 25
February 2016 to 01 March 2016.
[84]
It is also submitted that OUTA should have sought access to the
background documents when making its representations during the
public participation process.
[85]
See par 10.2 of NERSA's answering affidavit on indexed p 241.
[86]
See par 10.5 of NERSA's answering affidavit on indexed p 242.
[87]
See par 11 of NERSA's answering affidavit on indexed p 243; par 75
of the founding affidavit on indexed p 28.
[88]
See
All
Pay Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others
2014
(4) SA 179
(CC);
2014 (1) BCLR 1
(CC) at par 57.
[89]
See
Sanral
at par
67.
[90]
See
Sanral
at
pars 47, 65, 71 and 90, and generally
Economic
Freedom Fighters v Speaker of the National Assembly and Others;
Democratic Alliance v Speaker of the National Assembly
and Others
[2016]
ZACC 11.