IN THE H IGH COU R T OF SO U TH AF R ICA
GA U TE NG DIVIS ION, PR ETOR IA
Case Number : 2025/137620
(l) REPORTA BLE: YES/~
(2) O F INTEREST TO O THER JUDG ES: ~ /N O
(3) REVISED .
04 DE C EMBER 2025
SIG NATURE DATE
In the application of:
AFRIFORUM NPC
and
NATIONAL ENERGY REGULATOR OF SOUTH AFRICA
SOUTH AFRICAN LOCAL GOVERNMENT ASSOCIATION
ESKOM HOLDINGS SOC LIMITED
AMAHLATHI LOCAL MUNICIPALITY
BLOUBERG LOCAL MUNICIPALITY
DIHLABENG LOCAL MUNICIPALITY
DIPALESENG LOCAL MUNICIPALITY
DITSOBOTLA LOCAL MUNICIPALITY
Ap plicant
1 st Responden t
2nd Responden t
3rd Responden t
4th Responden t
5th Responden t
6th Responden t
7th Responden t
8th Responden t
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eDUMBE LOCAL MUNICIPALITY 9th Respondent
KAMIESBERG LOCAL MUNICIPALITY 10th Respondent
MERAFONG CITY LOCAL MUNICIPALITY 11th Respondent
MOSSEL BAY LOCAL MUNICIPALITY 12th Respondent
CITY OF EKURHULENI LOCAL MUNICIPALITY 13th Respondent
CITY OF CAPE TOWN LOCAL MUNICIPALITY 14th Respondent
192 LOCAL MUNICIPALITIES 15th – 181th Respondents
JUDGMENT(2)
LABUSCHAGNE J
INTRODUCTION
[1] The applicant successfully challenged the 2025/2026 public participation
process pertaining to the approval of municipal electricity tariff applications,
and I made an order on 31 October 2025 providing for a return date on 18
November 2025 regarding a timeline for all parties concerned . This is the
judgment following the hearing of 18 November 2025.
[2] The order I issued on 31 October 2025 reads:
“Having read the papers and having heard counsel
IT IS ORDERED
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[1] That the forms, service and time periods provided for in the Uniform
Rules of Court are dispensed with and the application is heard on the
basis or urgency in terms of rule 6(12).
[2] NERSA’s implementation of the public participation process of the notice
and comment procedure elected by it by, as contemplated in section 4(1)
and (3) of the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”)
utilised during the consideration an d approval of the financial year
2025/2026 municipal tariff applications (“the approvals”) is declared
invalid in terms of section 172(1)(a) of the Constitution.
[3] In terms of section 172(1)(b) of the Constitution, and despite the
declaration of invalidity set out in paragraph 2 above, the approvals are
not set aside.
[4] A rule nisi is issued, returnable on 18 November 2025, calling on any
respondent to show cause why the following order should not be made:
4.1 NERSA is directed to timeously comply with its obligations as public
entity, and as envisaged in section 35(c)(ii) of the Municipal
Finance Management Act, to timeously provide information and
assistance to municipalities to enable municipalities to prepare their
budgets in accordance with the processes set out in Chapter 4 of
the MFMA. In pursuance of the aforesaid, the following directions
are issued:
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4.1.1 By 31 January of every year, NERSA must give municipal
licensees written notice of bulk of wholesale tariffs at which
municipal licensees shall purchase electricity from Eskom,
or any other licensed generator, for the next financial year;
4.1.2 The notice referred to above shall in addition require
municipal licensees to submit their electricity tariff
applications by no later than 30 March of every year, failing
which they run the risk of no tariff increase being approved;
4.1.3 NERSA is directed to comply with the provisions of section
4 of PAJA, and the regulations published in terms thereof,
in respect of whichever procedure for public participation it
chooses, in terms of section 4 of PAJA, for considering and
approving municipal electricity tariff applications;
4.1.4 For purposes of meaningful public participation, NERSA is
directed to publish every municipal electricity tariff
application along with its cost of supply study for that
particular financial year, in a manner that makes it
accessible to the public, provide d that, where a municipal
electricity tariff application does not include a cost of supply
study for the financial year, NERSA must specifically state
the absence of such costs of supply study;
4.1.5 NERSA is directed to finalise the process of considering
the municipal electricity tariff applications timeously
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received and communicate its decisions on or before 05
May of every year;
4.1.6 NERSA must simultaneously also publish all of the
respective decisions it reached on the municipal electricity
tariff applications received; and
4.1.7 NERSA may not unilaterally extend or deviate from the
aforesaid timeframes for applications timeously received
without good cause and, if established, with prior notice to
the parties affected.
4.2 Every municipality that submits an electricity tariff application must
take all reasonable steps to ensure that the public participation
process NERSA chooses regarding municipal tariff applications is
brought to the attention of the public within its jurisdiction.
[5] AfriForum shall forthwith cause this order to be served:
5.1 On all participating respondents’ attorneys of record, where such
attorneys have been appointed, by email;
5.2 On the Chief Executive Officer of Eskom, by the sheriff; and
5.3 On the municipalities in Annexure FA2 to the notice of motion,
other than those in paragraph 5.1 above, by email sent to the
municipal managers.
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[6] NERSA is ordered to pay the costs of the application, including the costs
consequent upon the employment of two advocates, on Scale C, where
so employed.”
[7] On the return day NERSA argued primarily that the imposition by the court of
a timeline, or structural interdict, binding on it and the other parties constituted
judicial overreach. None of the other parties took this point. The alternative
contention was a refinement of the timeline that placed ESKOM on terms to
file its Eskom Retail Tariffs Structural Adjustments ( “ ERTSA”) application
timeously so that NERSA could in turn act timeously. Asked why NERSA could
not do so itself, NERSA responded with a non possumus answer. It did not
have the statutory power to do so. However, NERSA could in fac t make it a
licence condition of its licence with ESKOM requiring the filing of the ERTSA
application by no later than 31 August of every year. Ordering NERSA to
impose such a licence condition, would be judicial overreach.
[8] The timeline is merely aimed at streamlining and dovetailing statutory
processes for the annual approval by NERSA of municipal electricity tariff
applications and approval of municipal budgets . T hese processes are
intertwined. Due to persistent failures of timeous and meaningful compliance
by all involved, including NERSA, this requires deadlines to be imposed, but
does not entail ordering NERSA on how discretionary powers are to be
exercised.
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IS THEISSUIN OF A TIMELINE JUDICIAL OVERREACH?
[9] The question is whether the court may, without judicial overreach, issue a
structural interdict prescribing timelines for NERSA’s municipal electricity-tariff
process, in circumstances where NERSA’s recurrent lateness has impaired
municipalities’ budget pr ocesses and the public’s right to meaningful
participation. Therefore, whether judicial deference to a specialis t regulator
precludes the court from directing NERSA , ESKOM and municipalities to act
within reasonable timeframes, due to a persistent pattern of non-compliance,
which results in constitutional harm, thus justifying relief under section
172(1)(b) of the Constitution.
LEGAL PRINCIPLES
Constitutional duties
[10] Section 237 of the Constitution,1 underscores that all constitutional obligations
must be performed diligently and without delay. 2 This provision, read with
sections 33 and 195, impose a duty of timely administrative performance upon
regulatory authorities such as NERSA.
[11] Section 35(c) of the Municipal Finance Management Act (MFMA), 3 requires
national departments and public entities to “provide timely information and
assistance to municipalities to enable them to plan and adopt their budgets”.
Municipal budgets must be tabled 90 days before the commencement of the
1 Constitution of the Republic of South Africa, 1996.
2 Khumalo and Another v MEC for Education, KwaZulu-Natal 2014 (5) SA 579 (CC).
3 56 of 2003.
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financial year on 1 July; late tariff determinations by NERSA directly impede
this obligation and frustrate the constitutional value of accountability.
[12] Section 15(1) of the Electricity Regulation Act,4 mandates NERSA to regulate
tariffs in a manner consistent with efficiency, transparency and equity. These
statutory duties must be discharged within a constitutionally reasonable
timeframe.
Judicial deference and the separation of powers
[13] The principle of judicial deference serves as a restraint upon the judiciary’s
interference with the policy -laden or technical choices of administrative
agencies. As stated in Minister of Environmental Affairs and Tourism and
Others v Phambili Fisheries (Pty) Ltd (Minister of Environmental Affairs and
Tourism and Others),5 “(j)udicial deference is particularly appropriate where
the subject-matter of an administrative action is very technical or of a kind in
which a court has no particular proficiency”.
[14] The same judgment of the Minister of Environmental Affairs and Tourism and
Others cautioned that deference does not entail abdication. It emphasised that
“(j)udicial deference does not imply judicial timidity or an unreadiness to
perform the judicial function. It simply manifests the recognition that the law
itself places certain administrative actions in t he hands of the executive, not
the judiciary”.6
4 4 of 2006.
5 2003 (6) SA 407 (SCA) at para 53.
6 2003 (6) SA 407 (SCA) at para 50.
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[15] The Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others (Bato Star Fishing),7 reaffirmed
this balance, as follows:
“The use of the word deference may give rise to a misunderstanding as to the true
function of a review court. This can be avoided if it is realised that the need for Courts
to treat decision-makers with appropriate deference or respect flows not from judicial
courtesy or etiquette but form the fundamental principle of separation of powers
itself”.
[16] However, it is cognisant to note that the court in Bato Star Fishing further held:
“[48] In treating the decisions of administrative agencies with the appropriate
respect, a Court is recognising the proper role of the Executive within the
Constitution. In doing so, a Court should be careful not to attribute to itself
superior wisdom in relatio n to matters entrusted to other branches of
government. A Court should thus give due weight to findings of fact and policy
decisions made by those with special expertise and experience in the field. The
extent to which a Court should give weight to these considerations will depend
upon the character of the decision itself, as well as on the identity of the
decision-maker. A decision that requires an equilibrium to be struck between a
range of competing interests or considerations, and which is to be taken by a
person or institution with specific expertise in that area, must be shown respect
by the Courts . Often, a power will identify a goal to be achieved but will not
dictate which route should be followed to achieve that goal. In such
circumstances, a Court should pay due respect to the route selected by the
decision-maker. This does not mean, however, that where the decision is one
7 2004 (4) SA 290 (CC) at para 46.
Page 10
which will not reasonably result in the achievement of the goal, or which is not
reasonably supported on the facts or not reasonable in the light of the reasons
given for it, a Court may not review that decision. A Court should not rubber -
stamp an unreasonable decision simply because of the complexity of the
decision or the identity of the decision-maker.”
[17] In Logbro Properties CC v Bedderson NO and Others, 8 the court offered a
nuanced definition of deference as:
“(A) judicial willingness to appreciate the legitimate and constitutionally ordained
province of administrative agencies; to admit the expertise of those agencies in
policy-laden or polycentric issues; to accord their interpretation of fact and law due
respect; and to be sensitive in general to the interests legitimately pursued by
administrative bodies and the practical and financial constraints under which they
operate. This type of deference is perfectly consistent with a concern for individual
rights and a refusal to tolerate corruption and maladministration. It ought to be shaped
not by an unwillingness to scrutinise administrative action, but by a careful weighing
up of the need for – and the consequences of – judicial intervention. Above all, it
ought to be shaped by a conscious determination not to usurp the functions of
administrative agencies; not to cross over from review to appeal.”
[18] Judicial deference, within the doctrine of separation of powers, must also be
understood in the light of the powers vested in the courts by the Constitution.9
The Constitutional Court in Allpay Consolidated Investment Holdings (Pty) Ltd
and Others v Chief Executive Officer, South African Social Security Agency
8 2003 (2) SA 460 (SCA) (18 October 2002) at para 21, the court quoted C Hoexter ‘The Future of Judicial Review
in South African Administrative Law’ (2000) 117 SALJ 484 at 501-502, citing A Cockrell ‘ “Can You Paradigm?” –
Another Perspective on the Public Law / Private Law Divide’ 1993 Acta Juridica 227.
Another Perspective on the Public Law / Private Law Divide’ 1993 Acta Juridica 227.
9 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Limited and Another 2015
(10) BCLR 1199 (CC) at para 45.
Page 11
and Others(Allpay II), 10 took this further by linking deference directly to the
remedial powers of courts. To this effect, Froneman J stated that:
“[42] There can be no doubt that the separation of powers attributes responsibility to
the courts for ensuring that unconstitutional conduct is declared invalid and that
constitutionally mandated remedies are afforded for violations of the
Constitution. This mean s that the Court must provide effective relief for
infringements of constitutional rights …
…
[45] Hence, the answer to the separation -of-powers argument lies in the express
provisions of section 172(1) of the Constitution. The corrective principle
embodied there allows correction to the extent of the constitutional
inconsistency …”
[19] Finally, in Kenton on Sea Ratepayers Association and others v Ndlambe Local
Municipality and others ,11 the court recognised, with approval, that
“…Structural interdicts are particularly suited to remedying systemic failures
or inadequate compliance with constitutional duties…’ ”.
[20] Accordingly, in the context of NERSA’s chronic delays, judicial deference
cannot translate into judicial passivity. The separation of powers doctrine
requires respect for the administrative independence of specialist bodies, but
it also demands judicial in tervention when constitutional duties, such as
10 [2014] ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC) at paras 42 and 45.
11 [2017] JOL 37639 (ECG) at para 99 citing LAWSA Volume 10(1).
Page 12
facilitating timely and participatory tariff determinations, are consistently not
timeously performed.
PAST CONDUCT OF NERSA
[21] The City of Cape Town has demonstrated before the court that NERSA has
repeatedly communicated its municipal tariff approvals late:
i. 2022/23 - decision 29 June 2022
ii. 2023/24 - decision 28 June 2023
iii. 2024/25 - decision 3 July 2024
iv. 2025/26 - decision 1 July 2025.
This chronology shows a systemic pattern of delay spanning four consecutive
financial years.
[22] The delays violate section 35 of the MFMA and undermine municipalities’
ability to finalise budgets and facilitate the minimum 30 days public -
participation period mandated by Regulation 18(2) of the Regulations on Fair
Administrative Procedure.12
12 GN R1022, G 23674 31 July 2002.
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[23] NERSA attributes the delays to municipalities’ late submissions and to
Eskom’s ERTSA tariff -application cycle. However, municipalities, through
SALGA and the City of Cape Town, have accepted the concept or idea of a
proposed annual timetable submission, which will bind them.
[24] Counsel for NERSA invokes Bato Star Fishing to contend that the court should
exercise judicial deference and argues that NERSA must balance competing
interests; therefore, an equilibrium needs to be struck between a range of
competing interests or considerations, which NERSA is best equipped to
determine as the expert. These competing interests may appear to be
between municipalities’ late submissions and Eskom’s annual ERTSA
process. However, NERSA has not demonstrated how Eskom’s submission
would necessit ate deviation from its own statutory duties or cause the
persistent delay. Its pleadings rather reflect that the delays stem from
municipalities’ late submissions. I accept nevertheless that it requires five
months to assess the ERTSA application once ESKOM has submitted it.
[25] NERSA, as the regulator, bears both statutory power and a constitutional duty
to enforce compliance and reject late applications when necessary to preserve
the integrity of the budgeting process and the public participation timeline. By
repeatedly accommod ating non -compliance, NERSA has blurred
accountability and penalised municipalities that meet deadlines. Judicial
deference cannot be extended to condone regulatory inaction.
[26] Also, NERSA relies on Bato Star Fishing to argue that “often, a power will
identify a goal to be achieved but will not dictate which route should be
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followed to achieve that goal.” 13 The reliance is misplaced as the principle
presupposes that the goal in question is, in fact, being pursued and
progressively realised. However, for four consecutive years, NERSA has failed
to achieve its own statutory and constitutional goal, namely, to ensure the
timeous approval of municipal tariffs and to facilitate meaningful public
participation in the process (with a minimum of 30 days for public comments).
In these circumstances, judicial deference cannot shield continued non -
performance; rather, i t militates in favour of a structural interdict to secure
compliance and restore constitutional accountability.
[27] Furthermore, while tariff regulation entails technical expertise, the relief sought
does not prescribe the substance of NERSA’s determinations, but only the
procedural discipline required to uphold constitutional rights to participation,
accountability, and efficient governance. It thus regulates process within a
statutory timeframe, not outcome. Therefore, this will not be an instance where
the court usurps the functions of a specialist body.
[28] As the Constitutional Court explained in Doctors for Life International v
Speaker of the National Assembly ,14 participatory democracy imposes an
affirmative obligation on public institutions to facilitate reasonable
opportunities for public involvement. NERSA’s chronic tardiness has rendered
such participation illusory.
13 See n.7 at para 48.
14 2006 (6) SA 416 (CC) at paras 101 and 125.
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[29] Earthlife Africa Johannesburg and Another v Minister of Energy and Others,15
illustrates that when executive agencies disregard their transparency and
consultation duties in energy governance, judicial intervention is not only
permissible but also constitutionally required.
[30] NERSA’s pattern of disregard for the rights of the public and municipalities is
not unsystematic, sporadic, on ce-off, or intermittent; rather, it appears
systemic and continuous. Judicial deference must yield when a specialist
body’s constitutionally non -compliant conduct becomes systemic. In
particular, where NERSA’s inaction has threatened constitutional values of
public participation and the municipalities' budget process, the separation of
powers cannot be invoked as a shield for inefficiency. A specia list body’s
technical expertise is not a shield that protects it from compliance with
constitutional and statutory obligations.
[31] The persistent failure to meet deadlines has become a structural deficiency,
eroding public confidence and impairing the rule of law. As noted by Froneman
J in AllPay II, courts must provide effective relief for infringements of
constitutional rights.
[32] A structural interdict prescribing reasonable procedural timelines within a
statutory time frame, with flexibility for exceptional circumstances,ie requiring
15 2017 (5) SA 227 (WCC) (26 April 2017).
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an application to the court, strikes the proper constitutional balance between
judicial deference and accountability.
[33] Given NERSA’s consistent failure to finalise municipal tariffs timeously and
undermining public participation and municipal budgeting, a structural interdict
under section 172(1)(b) of the Constitution would constitute a fair and
equitable remedy. Such rel ief would enforce accountability without dictating
the substantive outcome of NERSA’s regulatory functions.
REFINEMENTS TO THE TIMELINE
[34] NERSA submitted in the alternative that refinements are required to ensure
and enhance timeous compliance. It requires ESKOM to submit its ERTSA
application by 31 August every year. That is fair. It is the first of a series of
dominoes that must be in place for the statutory processes of tariff approval
by NERSA and budget approval by municipalities to take place within statutory
timelines. If NERSA does not impose this date as a licence condition, then
ESKOM must be directed to comply by the court.
[35] The second proposal was that, in light of the need for a NERSA decision on
the ERTSA to be published by 31 January of every year, municipalities should
file their applications for tariff approvals by 28 February and NERSA should
make known its decision on such applications by the end of May. Dealing with
the first date, the filing date for municipal tariff applications, the rule nisi
envisages a filing date of 30 March. Cape Town suggests that 20 March is
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more appropriate and that six weeks for NERSA to consider the applications
would be fair.
[36] As municipal budget adjustments need to be published at least 30 days before
the commencement of the financial year on 1 July of every year, the NERSA
suggestion of its decision being published by the end of May leaves insufficient
time for adjusting municipal budgets based on the NERSA approved tariff by
the end of May.
[37] I accept the proposal by the City of Cape Town in this regard as it strikes a
balance between the tariff approval and budget approval processes.
[38] As these are the only date changes that were mooted, the order will adjust the
dates accordingly.
[39] The rule nisi did not expressly provide for deviations from the timeline to be
sanctioned by the court. As section 4 of PAJA gives NERSA a discretion to
deviate in respect of public participation processes, the order should not
detract from this statutory power. However, as the exercise by NERSA of its
discretionary powers has a knock on effect on the budget approval p rocess,
and may impact parties adversely, a balance of the interests of all concerned
is required to forge a just and equitable remedy. The Court is not empowered
to legislate, but imposing judicial oversight over deviations from the time lines
will provide a forum to balance competing interests in a manner that is just and
equitable. In the premises the following order is made:
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ORDER
[40] The following order is made final:
1. Eskom is directed to file its annual ERTSA application on or before 31
August to enable NERSA to comply with par 2.1 below.
2. NERSA is directed to timeously comply with its obligations as public
entity, and as envisaged in section 35(c)(ii) of the Municipal Finance
Management Act, to timeously provide information and assistance to
municipalities to enable municipalities to prepare the ir budgets in
accordance with the processes set out in Chapter 4 of the MFMA. In
pursuance of the aforesaid, the following directions are issued:
2.1 By 31 January of every year, NERSA must give municipal
licensees written notice of bulk or wholesale tariffs at which
municipal licensees shall purchase electricity from Eskom, or
any other licensed generator, for the next financial year;
2.2 The notice referred to above shall in addition require municipal
licensees to submit their electricity tariff applications by no later
than 20 March of every year, failing which they run the risk of no
tariff increase being approved;
2.3 NERSA is directed to comply with the provisions of section 4 of
PAJA, and the regulations published in terms thereof, in respect
of whichever procedure for public participation it chooses, in
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terms of section 4 of PAJA, for considering and approving
municipal electricity tariff applications;
2.4 For purposes of meaningful public participation, NERSA is
directed to publish every municipal electricity tariff application
along with its cost of supply study for that particular financial
year, in a manner that makes it accessible to the public, provided
that, where a municipal electricity tariff application does not
include a cost of supply study for the financial year, NERSA must
specifically state the absence of such costs of supply study;
2.5 NERSA is directed to finalise the process of considering the
municipal electricity tariff applications timeously received and
communicate its decisions on or before 05 May of every year;
2.6 NERSA must simultaneously also publish all of the respective
decisions it reached on the municipal electricity tariff applications
received; and
2.7 NERSA may not unilaterally extend , or deviate from , the
aforesaid timeframes for municipal electricity tariff applications
timeously received without good cause shown to the satisfaction
of the court.
3. Every municipality that submits an electricity tariff application must take
all reasonable steps to ensure that the public participation process
NERSA chooses regarding municipal tariff applications is brought to the
attention of the public within its jurisdiction.
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4. ESKOM and each municipality is directed to comp ly timeously w ith the
aforesaid timeline; provided that, on good cause show n to the
satisfaction of the court, the court may sanction a deviation on such
terms as it deems meet.
5. AfriForum shall forthw ith cause this order to be served:
5.1 On all participating respondents' attorneys of record, w here such
attorneys have been appointed, by email;
5.2 On the Chief Executive Officer of Eskom , by the sheriff; and
5.3 On the mun icipalities in Annexure FA2 to the notice of mo tion,
other than those in paragraph 5.1 above, by email sent to the
municipal managers.
6. N ERSA is ordered to pay the costs of the application, including the costs
consequent upon the employment of two advocates, on Scale C , w here
so emp loyed.
LABUSCHAGNE J
JUDG E OF THE H IGH COUR T
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APPEARANCES:
COUNSEL FOR APPLICANT: ADV BOTHA SC
ADV HUGO
INSTRUCTED BY : HURTER SPIES ATTORNEYS
CONSEL FOR RESPONDENTS : ADV SHANGISA SC
ADV CHARLIE
INSTRUCTED BY DM 5 INC. Illovo
ADV MAKHAJANE
COJ
: ADV SIBISI
INSTRUCTED BY : SSM ATTORNEYS
SALGA : ADV TSATSAWANE SC
: ADV NKABINDE
INSTRUCTED BY : HM CHAANE ATTORNEYS
CAPE TOWN : ADV BREITENBACH SC
: ADV REYNOLDS
INSTRUCTED BY : TIMOTHY AND TIMOTHY ATTORNEYS
DATE JUDGEMENT DELIVERED: 04 DECEMBER 2025