IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case NO: A258/2023
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED
28 MAY 2025
WRIGHT J
In the matter between:
MINERALS COUNCIL OF SOUTH AFRICA APPELLANT
ENERGY INTENSIVE USERS GROUP APPELLANT
and
SALGA FIRST RESPONDENT
ESKOM HOLDING SOC LTD SECOND RESPONDENT
OTHER RESPONDENTS
JUDGMENT - APPEAL
WRIGHT J
1. The South African Local Government Association represents some 2 57
municipalities in South Africa. On 13 September 2021 , SALGA launched an
application under case number 46214/21, citing Eskom as first respondent
and twelve other parties as further respondents.
2. The relief sought in that main application are orders that :
2.1 municipalities have exclusive authority to reticulate electricity within their
jurisdictions,
2.2 the distribution and supply of electricity by Eskom in municipal jurisdictions
amounts to reticulation of electricity and the provision of a municipal service
which requires a Service Delivery Agreement to be entered into between
Eskom and the respective municipalities in terms of section 76 of the Local
Government: Municipal Systems Act 2 of 2000 ,
2.3 on account of their executive authority to reticulate electricity and their right
to govern the affairs of their communities, municipalities have the power to
request Eskom to enter into Service Delivery Agreements with the
municipalities “ for the former to reticulate electricity within the latter’s
jurisdictions . “
3. The main application is pending. Some of the respondents have filed
answering affidavits.
4. The Minerals Council of South Africa represents large mining consumers of
electricity. It is not cited as a respondent in the main application . It sought to
join the main application as a respondent. It says that mines are often located
away from urban areas and with contracts with Eskom directly for the supply
of electricity. It says that the effect of the relief being granted in the main
application will be to increase the price of electricity to mines. It says that
municipalities are badly run and have inaccurate billing and that because
municipalities don’t always pay Eskom for electricity, Eskom cuts the supply,
leaving those consumers who have paid for electricity , without power. It says
that granting the relief sought will compromise the ability of mines to survive. It
alleges that existing agreements between its members and Eskom will be at
risk if the relief sought is granted.
5. In answer, SALGA says that the relief sought by it in the main application has
nothing to do with the Mineral Council’s members. The statement is also
made that the relief sought in the main application has nothing to do with an
increase in the price of electricity.
6. The Energy Intensive Users Group is a voluntary association, not for profit, of
large scale users of electricity. It was not cited as a respondent in the main
application. It sought to be joined as a respondent. It says that SALGA seeks
to interpose itself as a “ rent seeking middleman “ between Eskom and bulk
consumers and that the effect of SALGA obtaining the orders sought would be
to change Eskom’s bulk pricing structure to a retail structure. This is alleged to
mean that not only will prices be too high for commercial viability but that the
existing agreements between Eskom and its bulk consumers who are
members of EIUG will be rendered invalid.
7. In answer, SALGA says that the members of EIUG, while they have
agreements directly with Eskom and have a right to be supplied with
electricity, have no direct and substantial interest in the main relief sought
because EIUG’s members do not reticulate electricity. It is stated that, at best
for EIUG’s members, they have an indirect commercial interest in the
outcome of the main litigation.
8. Motha J dismissed both applications for joinder. He dismissed their
applications for leave to appeal but both obtained leave to appeal from the
SCA.
9. The appeals by both the Minerals Council and EIUG are now before us .
10. In my view, the appeals should be allowed.
11. In SA Riding for the Disabled Association v The Regional Land Claims
Commissioner [2017] ZACC 4 the Constitutional Court held at paragraph 9
that “ It is now settled that an applicant for intervention must meet the direct
and substantial interest test in order to succeed. What constitutes a direct
and substantial interest is the legal interest in the subject -matter of the case
which could be prejudicially affected by the order of the Court. This means
that the applicant must show that it has a right adversely affected or likely to
be affected by the order sought. But the applicant does not have to satisfy the
court at the stage of intervention that it will succeed. It is sufficient for such
applicant to make allegations which, if proved, would entitle it to relief. “
12. In my vie w, and on the allegations made by the Minerals Council and EIUG ,
the existing rights of the Minerals Council ’s members and the members of the
EIUG as encapsulated in current agreements with Eskom and their future
rights to contract with Eskom are likely to be directly and adversely affected
by SALGA obtaining the orders sought. This gives the Minerals Council and
EIUG a direct and substantial legal interest in the outcome of the main
application.
13. As is clear from the last two sentence s of the passage quoted from SA Riding,
it is not necessary for this court to rule on the correctness or otherwise of the
factual allegations made by the Minerals Council or EIUG and we refrain from
doing s o.
ORDER
1. The appeals by both the Minerals Council and E IUG are upheld.
2. SALGA is to pay the costs of the appeal of both appellants ( after 12 April
2024 on scale C ), such costs to include those of two counsel where so
employed .
3. The orders of the court below are set aside.
4. The Minerals Council is joined in the main application as respondent 1 4.
5. EIUG is joined in the main application as respondent 15 .
6. SALGA is to pay the costs of the Minerals Council and EIUG in their
applications to join on the party and party scale, (scale C, after 12 April
2024 ) such costs to include those of two counsel where so employed.
GC Wright
Judge of the High Court
Gauteng Division, Pretoria
Hassim J
I agree
Ledwaba AJ
I agree
HEARD : 28 May 2025
DELIVERED : 28 May 2025
APPEARANCES :
Minerals Council Adv CDA Loxton SC
Adv Z Bhero -Manentsa
Instructed by Bowman Gilfillan Inc
claire.tucker@bowmanslaw.com
wandisile.mandlana@bowmanslaw.com
aliyah.ince@bowmanslaw.com
EIUG Adv A Subel SC
Adv M Nguta
Instructed by White and Case Inc
Darryl.Bernstein@whitecase.com
Viren.Raja@whitecase.com
Cameron.Jeffrey@whitecase.com
Bonga.Sekani@whitecase.com
SALGA Adv JA Mothepe SC
Adv V Mabuza
Instructed by Lawtons Africa
Yagashen.Pillay@lawtonsafrica.com