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[2016] ZAGPPHC 945
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National Energy Regulator of South Africa and Another v Borbet SA (Pty) Ltd and Others (24364/2016) [2016] ZAGPPHC 945 (17 November 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number:
24364/2016
Date: 17 November 2016
In the matter between:
THE NATIONAL ENERGY
REGULATOR OF SOUTH AFRICA FIRST
APPLICANT
ESKOM HOLDINGS SOC LTD
SECOND
APPLICANT
And
BORBET SA (PTY) LTD
FIRST
RESPONDENT
PG GROUP (PTY) LTD
SECOND
RESPONDENT
CROWN CHICKENS (PTY)
LTD THIRD
RESPONDENT
AGNI STEELS SA (PTY) LTD
FOURTH
RESPONDENT
AUTOCAST SOUTH AFRICA
(PTY) LTD
t/a
AUTOCAST PORT
ELIZABETH FIFTH
RESPONDENT
NELSON MANDELA BAY
BUSINESS CHAMBER
SIXTH
RESPONDENT
JUDGMENT
(LEAVE TO APPEAL)
PRETORIUS J,
(1) I have
considered the heads of argument of both the first and second
applicants, as well as the notice of application
for leave to appeal.
(2) It is so that
the respondents indicated that:
"Although the
Applicants are not in agreement that either NERSA or Eskom has any
prospects of success on Appeal, we are instructed
that the Applicants
shall abide the decision of the Court in relation to the Application
for Leave to Appeal. The Applicants do
so in order to expedite the
matter and in an
attempt to ensure that
a
final
authoritative Judgment is handed
down promptly.
…
Please note that, by
doing so, the Applicants are not making any concession or admission
that NERSA or Eskom is entitles to any
relief, and the Applicants'
rights are fully reserved. "
[1]
(3)
Although
the respondents are abiding the decision of the court in this
application, it does not mean that leave to appeal should
be granted
automatically. The court still has to consider the provisions of
section 17(1)(a)(i) and (ii) of the
Superior
Courts Act.
[2]
(4)
In terms of
section 17(1)(a)(i) of the
Superior
Courts Act
[3]
leave
to appeal would be granted if the appeal
"would
have
a
reasonable
prospect of success"
or
in terms of section 17(1)(a)(ii)
"there
is some other compelling reason why the appeal should be heard".
(5) In the present
instance the interpretation of the MYPD3 methodology is of prime
importance. I find that it is possible
that another court may
interpret the provisions of the application of the MYPD3 methodology
in a different manner.
(6) At the outset,
when the application was heard, it was common cause that the issues
that were argued and the findings by
the court would have huge
consequences, not only to the consumers of electricity, but also to
the South African economy and the
two applicants.
(7) I therefore
make the following order:
1. Leave to appeal
against the whole of the judgment and order in the abovementioned
case number handed down on 16 August 2016 is
granted to the Supreme
Court of Appeal.
2. The costs of this
application are to be costs in the appeal.
_________________
Judge C Pretorius
Case
number
: 24364/2016
Matter heard
on
: 17/11/2016
For the First
Applicant
: Adv DM Fine SC
Adv A Pantazis
Instructed
by
: Hogan Levells (SA) Inc
For the Second
Applicant
: Adv JJ Gauntlett SC
Adv SM Lebala SC
Adv EM Baloyi-Mere
Instructed by
: Ledwaba Mazwai Attorneys
For the
Respondents
: Adv
ON Unterhalter SC
Adv M Du Plessis
Adv J Mitchell
Adv ALS Msimang
Instructed
by
: Couzyn Hertzog & Horak
Date of
Judgment
: 17 November 2016
[1]
Letter dated 1 November 2016
[2]
Act 10 of 2013
[3]
Supra