IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-063165
DATE: 25 March 2026
In the matter between:
SIBANYE GOLD (PTY) LIMITED First Applicant
SIBANYE SOLAR PV (PTY) LIMITED Second Applicant
SIBANYE STILLWATER LIMITED Third Applicant
and
ESKOM HOLDINGS SOC LTD First Respondent
THE NATIONAL ENERGY REGULATOR OF
SOUTH AFRICA (‘NERSA’) Second Respondent
FAR WEST RAND DOLOMITIC WATER ASSOCIATION Third Respondent
Neutral Citation: Sibanye Gold and Others v Eskom Holdings SOC and
Others (2024-063165) [2026] ZAGPJHC --- (25 March 2026)
Coram: Adams J
Heard: 25 March 2026
Delivered: 25 Marcg 2026 – This judgment was handed down electronically
by circulation to the par ties' representatives by email , by being
uploaded to CaseLines and by release to SAFLII. The date and
time for hand-down is deemed to be 12:30 on 25 March 2026.
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Summary: Application for leave to appeal – s 17(1)(a)(i) of the Superior
Courts Act 10 of 2013 – an applicant now faces a higher and a more stringent
threshold –
Another compelling reason for leave to appeal to be granted (s 17(1)(a)(ii)) –
the decision sought to be appealed against involves an important question of
law –
Leave to appeal refused.
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ORDER
(1) The first respondent’s application for leave to appeal is dismissed with
costs.
(2) The first respondent shall pay the applicants’ costs of this opposed
application for leave to appeal, such costs to include the costs consequent
upon the utilisation of two Counsel, one being Senior Counsel (where so
employed), on scale ‘C’ of the tariff referred to in Uniform Rule of Court
67A(3), read with rule 69.
JUDGMENT [APPLICATIONS FOR LEAVE TO APPEAL]
Adams J:
[1]. I shall refer to the parties as referred to in the original opposed
application by the first , second and third applicants (‘Sibanye’) for an order
reviewing and setting aside the first respondent’s (Eskom’s) decision to refuse
the applicants' wayleave application and for related ancillary relief. On
18 February 2026, written judgment was handed down in the said application.
The applicants’ application was granted and I declared the said decision to be
unlawful and constitutionally invalid. The impugned decision was reviewed and
set aside and substituted with an order in terms of which applicants' wayleave
application with reference WS171/2023 was granted . I also granted costs in
favour of the applicants against the first respondent.
[2]. The first respondent appl ies for leave to appeal against the whole of the
aforementioned judgment and order, including the order for costs. The first
respondent contend s that I erred in granting the aforesaid order and that I
should instead have dismissed the applicants’ application with costs . In a
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nutshell the first respondent’s case in this application for leave to appeal is that I
erred in a number of factual and legal findings.
[3]. Firstly, I erred, so Eskom contends, and committed an error of law when I
failed to consider the legal consequences and implications of Sibanye's project
as a ‘Strategic Integrated Project ’ (‘SIP’) in terms of the Infrastructure
Development Act 23 of 2014 (IDA) . The true legal effect of my aforementioned
recognition, so Eskom contends, is that the provisions of the IDA are applicable
to Sibanye, as are the dispute resolution mechanisms referred to therein. This,
in turn means, so Eskom’s argument on this point is concluded, that instead of
litigation in this Court, Sibanye ought to have first exhausted the dispute
resolution mechanism provided for in the Intergovernmental Relations
Framework Act 13 of 2005 (IRFA).
[4]. Eskom therefore contends that I committed an error of law in that I ought
to have found that Sibanye was duty bound to first exhaust the dispute
resolution processes prescribed in IRFA whilst holding steadfast to their status
as an SIP. It matters not, so it is argued by Eskom, that this point was not raised
in the main application or at any stage prior to the application for leave to
appeal.
[5]. Secondly, Eskom contends that I committed an error of law in finding that
the crossing of Eskom's lines was ubiquitous, that Eskom did not raise a query
on inspection, that it belatedly decided that underground lines would be
permitted and that the decision to refuse the application for a wayleave was not
a genuine concern. I erred in law, so the contention goes, when I disregarded
Eskom's safety concerns which are statutory obligations and arose from
operational risk or safety of crossing of lines.
[6]. Thirdly, Eskom contends that I erred when I found that the wayleave
policy of Eskom stipulates that the process for the wayleave application was to
policy of Eskom stipulates that the process for the wayleave application was to
be concluded within a 14-day period, for which I criticised Eskom for the delay
of 12 months. However, I contradicted myself in later finding that Eskom's policy
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is not legislation and cannot be applied rigidly. The court ought to have found
that Eskom's engagements with Sibanye demonstrated it s pragmatism in
applying its policy.
[7]. Eskom also argues that my approach to the issue of Eskom’s revenue
was erroneous in fact because Sibanye was allowed to advance its revenue
consideration points that the Project would increase its profits and the returns to
shareholders through higher dividends yields and energy costs being a growth
inhibitor, yet Eskom's argument in the same vein was rejected as demonstrating
its ulterior motive. Furthermore, the court erred in law when it found that
Eskom's decision was irrational, unreasonable and irrelevant because Eskom
could n ot historically meet the energy needs of Sibanye and as a result it
suffered significant energy deficits through operational disruptions, production
losses and increased risks.
[8]. Finally, it was contended on behalf of Eskom that the court a quo erred in
granting the substitution order and contracting for Eskom and on terms
favourable only to Sibanye. The effect of the order , so the contention goes, is
that it breaches the separation of powers because it trespasses upon the
administrative terrain of another branch of government.
[9]. As regards the first ground on which this application for leave to appeal is
based, that being in relation to IRFA, Sibanye argued that this new defence was
never pleaded let alone raised in argument before this Court a quo. It would be
impermissible to raise it on appeal.
[10]. I agree. Moreover, the argument has no merit. The Sibanye entities , as
private companies, not organs of state as defined under section 239 of the
Constitution, could never be subject to the intergovernmental dispute resolution
requirements of section 41 of the Constitution, which are given effect through
the IRFA, which apply exclusively to organs of state in the national, provincial or
local spheres of government. There is also nothing in the IDA that purports to
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transform private entities into organs of state merely because they are owners
or beneficiaries of projects declared to be strategic integrated projects.
[11]. There are further grounds on which the application for leave to appeal is
based. They are related to and overlap with the grounds alluded to supra. All
the same, nothing new has been raised by Eskom in its application for leave to
appeal. In my original judgment of 18 February 2026, I have dealt with most, if
not all of the issues raised by Eskom in its application for leave to appeal and it
is not necessary for me to repeat those in full. Suffice to restate what I said in
my original judgment that, if regard is had to the context in which this matter is
played out and the official policy adopted by the South African government,
Eskom’s approach to Sibanye’s wayleave application is to say the least
surprising.
[12]. The traditional test in deciding whether leave to appeal should be
granted was whether there is a reasonable prospect that another court may
come to a different conclusion to that reached by me in my judgment. This
approach has now been codified in s 17(1)(a)(i) of the Superior Courts Act 10 of
2013, which came into operation on the 23 rd of August 2013, and which
provides that leave to appeal may only be given where the judges concerned
are of the opinion that ‘the appeal would have a reasonable prospect of
success’.
[13]. In Ramakatsa and Others v African National Congress and Another 1, the
SCA held that the test of reasonable prospects of success postulates a
dispassionate decision, based on the facts and the law that a court of appeal
‘would’ reasonably arrive at a conclusion different to that of the trial court. These
prospects of success must not be remote, but there must exist a reasonable
chance of succeeding. An applicant who applies for leave to appeal must show
that there is a sound and rational basis for the conclusion that there are
prospects of success.
prospects of success.
1 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31
March 2021);
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[14]. The ratio in Ramakatsa simply followed S v Smith 2012 (1) SACR 567
(SCA), [2011] ZASCA 15, in which Plasket AJA (Cloete JA and Maya JA
concurring), held as follows at para 7:
‘What the test of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law that the Court of Appeal could reasonably
arrive at a conclusion different to that of the trial court. In order to succeed, therefore,
the appellant must convince this Court on proper grounds that he has prospects of
success on appeal and that those prospects are not remote, but have a realistic
chance of succeeding. More is required to be established than that there is a mere
possibility of success. That the case is arguable on appeal or that the case cannot be
categorised as hopeless. There must, in other words, be a sound, rational basis for the
conclusion that there are prospects of success on appeal.’
[15]. In Mont Chevaux Trust v Tina Goosen 2, the Land Claims Court held (in
an obiter dictum) that the wording of this subsection raised the bar of the test
that now has to be applied to the merits of the proposed appeal before leave
should be granted. I agree with that view, which has also now been endorsed
by the SCA in a judgment in Notshokovu v S3. In that matter the SCA remarked
that an appellant now faces a higher and a more stringent threshold, in terms of
the Superior Courts Act 10 of 2013 compared to that under the provisions of the
repealed Supreme Court Act 59 of 1959. The applicable legal principle as
enunciated in Mont Chevaux has also now been endorsed by the Full Court of
the Gauteng Division of the High Court in Pretoria in Acting National Director of
Public Prosecutions and Others v Democratic Alliance In Re: Democratic
Alliance v Acting National Director of Public Prosecutions and Others4.
[16]. I am not persuaded that the issues raised by Eskom in its application for
leave to appeal, are issues in respect of which another court is likely to reach
leave to appeal, are issues in respect of which another court is likely to reach
conclusions different to those reached by me. I therefore conclude that there
2 Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (unreported).
3 Notshokovu v S 2016 JDR 1647 (SCA); Case no: 157/2015 [2016] ZASCA 112 (7 September 2016).
4 Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic
Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC
489 (24 June 2016).
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HEARD ON: 25 March 2025
JUDGMENT DATE: 25 March 2026 – Judgment handed
down electronically
FOR THE FIRST, SECOND AND
THIRD APPLICANTS: J Babamia SC, with C McConnachie
INSTRUCTED BY: Norton Rose Fulbright SA Inc,
Sandhurst, Sandton
FOR THE FIRST RESPONDENT: S L Shangisa SC, with L Rakgwale
INSTRUCTED BY: Tasneem Moosa Incorporated,
Houghton Estate, Johannesburg
FOR THE SECOND AND THIRD
RESPONDENTS: No appearance
INSTRUCTED BY: No appearance