1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3)
REPORTABLE : YES/NO
OF INTEREST TO THE JUDGES : YES/NO
REVISED.
CASE NO: 2026-139570
DATE: 03/08/2026 SIGNATURE .....
In the matter between :
Musina Local Municipality
And
NATIONAL ENERGY REGULATOR
OF SOUTH AFRICA (NERSA)
ESKOM SOC LIMITED
SOUTHAF~CANLOCALGOVERNMENT
ASSOCIATION (SALGA)
NATIONAL TREASURY
PROVINCIAL TREASURY, LIMPOPO PROVINCE
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
2
Delivered: This judgment is handed down electronically by circulation to the parties
through their legal representatives' email addresses. The date for the hand-down is
deemed to be 3 AUGUST 2026.
JUDGMENT
Makoti AJ
Introduction
[1] Musina Local Municipality (Musina) approached this court on an urgent basis.1
The application is predicated on the provisions of Rule 27 of the Uniform Rules
of Court to condone its late delivery of an application of tariffs. It initially sought
to obtain orders, the substance of which I shall traverse below, on an ex parte
basis, with a return date. That procedure did not succeed, for reasons that do
not detain this court's attention for purposes of the determination of this
application.
[2] The respondents are the National Energy Regulator of South Africa (NERSA),
which is the only participating respondent; Eskom SOC Limited (Eskom); the
South African Local Government Association (SALGA); the National Treasury;
and the Limpopo Provincial Treasury.
[3] In pith, Musina wants condonation for the late filing of its application to NERSA
for an increase or revision of electricity tariffs. It has asked this court to direct
NERSA to consider its application even though it was submitted after the
closing date of submission of such applications. NERSA has opposed the
application on several grounds that I will canvass below.
1 Rule 6(12){b} of the Uniform Rules.
3
The relief sought and the grounds of opposition
[4] Apart from the question of urgency, the essence of the relief asked for by the
Municipality is that:
[4.1] Its late application for a tariff increase that was made after 31 March
2026 should be condoned.
[4.2] Also, that its non-compliance with the statutory timeframe for tariff
processes and public participation be condoned.
[4.3] Importantly, that NERSA be authorised or directed to entertain,
adjudicate and determine the Municipality's application for a tariff
revision or increase.
[5] NERSA is opposed to the application for want of urgency, firstly. Its contention
is that urgency was self-created by the Municipality. It is also not pleased with
the fact that the application is made in this Division and has, for that reason,
argued that this court lacks jurisdiction to entertain the application. The point of
lack of jurisdiction is also linked to another ground of /is alibi pendens in that
there is a pending similar application in the Gauteng Division, Pretoria.
Furthermore, it was NERSA's case that the timelines set out by Musina in the
notice of motion are not practically possible.
The statutory functions of NERSA
[6] As its name suggests, NERSA is the custodian and enforcer of the regulatory
framework under the Electricity Regulation Act2 (ERA). It was established in
terms of section 3 of the National Electricity Regulator Act, 20043 (NERA).
Among its functions, NERSA is charged with the duty to consider applications
for licenses for the following:
2 Act No. 4 of 2006.
3 Act No. 40 of 2004.
4
[6.1] The operation of generation, transmission and distribution;
[6.2] Regulation of electricity prices and tariffs.
[7] ERA sets out that its objects are to ensure an ' ... efficient, effective, sustainable
and orderly development and operation of electricity supply infrastructure ... ' in
the Republic.4 It is on that basis that the Municipality would apply to NERSA
when it needs to have its electricity tariffs revised. NERSA, on the other hand,
regulates the time periods within which municipalities that require tariff
revisions would make their applications and other conditions that may be
applicable.
[8] The time periods within which Musina was required to submit its tariff
application are common cause, or at least they appear to be. In any case, it is
in the nature of condonation proceedings that a party making such an
application begins by acknowledging a failure to act in a manner that it was
required to do. This case is not different.
Whether the application is urgent
[9] Urgency stands on two anchor points. The first is that a party that seeks urgent
intervention must explicitly set out facts why its application is urgent. 5 This
entails factors such as whether there is harm that is likely to happen. Also,
whether the applicant has acted with the promptness that is called for by the
situation. 6
[1 O] A party that creates its own urgency by, for instance, failure to act at the first
opportunity may face a court that is reluctant to allow it to jump the queue. That
4 Section 3 of ERA.
5 African National Congress v Umkhonto weSizwe Party (2024] 3 All SA 137 (KZD) para 17.
6 Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE) para 37 - 40.
5
a party has created its own urgency is not an ultimate bar to the court
exercising its discretion to treat the case as urgent.7
[11] The second consideration questions whether a party seeking urgent
intervention would have substantial redress in the future. If the answer is in the
affirmative, the court would likely decline to entertain the case on an urgent
basis.
[12] Musina explained that it will face a budget deficit of R94 million if its electricity
tariffs are not revised and increased. For that reason, it averred that it would
not attain substantial redress even if it were to be allowed a tariff increase in
the next cycle of NERSA's tariff applications. NERSA disputed this. It
contended that the Municipality provided no evidence of the budget deficit.
Also, that Musina's argument derived from a misconception that the tariff
revision was going to result in an increase.
[13] In urgent applications, courts are called upon to exercise judicial discretion
upon sufficient and satisfactory grounds being shown by the applicant. 8 The
following facts are apt to consider:
[13.1] Musina, upon missing the deadline, began engagements with NERSA
to condone the non-compliance. It had only managed to submit its
application for a tariff increase on 1 April 2026, a day after the deadline.
[13.2] On 7 April 2026 NERSA wrote to the Municipality rejecting its
application as it was delivered late.
7 South African Informal Traders Forum and Others v City of Johannesburg and Others; South African
National Traders Retail Association v City of Johannesbu rg and Others (CCT 173/13; CCT 174/14) [2014]
ZACC 8; 2014 (6) BCLR 726 (CC); 2014 (4) SA 371 (CC) (4 April 2014).
8 IL&B Macrow Caterers v Greatermans SA 1981 (4) SA 108 (C) 112H.
6
[1 3.3] The Municipality instilled the help of SALGA to assist it to persuade
NERSA to accept and consider the tariff revision application. SALGA
responded to Musina on 9 June 2026.
[14] There is room to criticize the Municipality for timeously not following up with
SALGA to ascertain whether its request for intervention was bearing fruit. That
is not a reason to non-suit it. This being July, and the new tariff cycle having
started on the 1st, it is difficult to imagine that the Municipality will have to wait
until another tariff revision that will kick in on 1 July 2027.
[15] Musina has clearly articulated that it derives some of its revenue from electricity
supply. Significant revenue for that matter. Also, that Eskom will be increasing
its prices, which will put pressure on the Municipality's capacity to afford
sourcing electricity from Eskom and be able to generate adequate revenue
when selling it to its customers.
[16] In light of all the factors considered above, I accept that the application is one
to be treated as urgent.
The defense of /is pendens or res judicata
[17] Another string in NERSA's bow is that, because the deadline of 31 March 2026
was set in judicial proceedings in the Gauteng Division, and because the
Municipality seeks condonation, it ought to participate in the pending litigation
in Gauteng.
[18] Our jurisprudence does not tolerate multiplication and spread of one dispute in
various judicial processes. The lack of tolerance gave rise to the doctrine of /is
alibi pendens, a well-established principle of the South African procedural law.
[19] The doctrine is designed to preserve the integrity of judicial proceedings and to
prevent the duplication of litigation. Its underlying purpose is to avoid the
following:
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[19.1] duplication of proceedings;
[19.2] conflicting judicial determinations;
[19.3] unnecessary costs and inconvenience to litigants; and
[19.4] abuse and burdening of the judicial process.
[20] The requirements for the successful invocation of the doctrine are trite. There
must exist:
[20.1] pending litigation;
[20.2] between substantially the same parties or their privies;
[20.3] founded upon substantially the same cause of action; and
[20.4] concerning substantially the same subject matter and substantially the
same relief.
[21] The doctrine is not applied in a rigid or mechanical fashion. Rather, its
application is informed by considerations of justice, convenience and equity,
with the overarching objective of preventing the duplication of proceedings and
the possibility of conflicting judgments arising from substantially the same
dispute.
[22] In Nestle (South Africa) (Pty) Ltd v Mars lnc9 the SCA held that a court must
look beyond the form of the pleadings and examine the true substance of the
dispute in determining whether the requirements of /is alibi pendens have been
satisfied. A litigant cannot evade the doctrine merely by reformulating the relief
sought, embellishing the pleadings, or joining additional parties where the
underlying dispute remains substantially the same.
9 Nestle (South Africa) (Pty) Ltd v Mars lnc9 2001 (4) SA 542 (SCA
8
[23] It is apt to answer the question of whether there is a pending /is between the
parties. This necessitates that I consider the last of the orders that were
granted in the applications in Gauteng. That would be the order of Mooki J of
19 February 2026. That order extended the date of filing of tariff revision
applications to 31 March 2026. It also set out a date for affected parties to
anticipate it, being 17 March 2026.
[24] There are two problems with the defense of /is alibi pendens. The first is that,
on the reading of the order of Mooki J, there is no pending litigation. That order
was final in effect, and parties could ask for its variation by filing applications on
17 March 2026. So, too, the date of 31 March 2026 has passed and the
Municipality could not meet the deadline.
[25] I understand the Municipality to be asking for condonation for the failure to
meet the deadline of 31 March 2026. In other words, it acknowledges that it
was supposed to have acted in accordance with the terms of the order and that
it was unable to meet the date. It was only able to file its application on 1 April
2026, a day after the deadline.
[26] The second difficulty with the defense is that the causes of action in the two
litigation processes are distinct, though related. The fact that the causes of
action may be related or even arising from similar facts is not sufficient to non
suit a party to institute an application. In my view, the technical point raised in
this regard must fail.
Whether this court has jurisdiction to adjudicate the application
[27] A person who initiates litigation is also entitled to select the court in which the
case will proceed. What this means is that a dominus litis, Musina, decides
which high court will hear the case. The Municipality has elected to institute the
application in this Division. NERSA objects to the decision and the court's
jurisdiction .
9
[28] High courts have inherent jurisdiction to make orders in respect of cases that
are brought to them.10 They also derive their jurisdictions from the provisions of
section 21 of the Superior Court Act and not so much from the nature of the
litigation. The statutory provision stipulates that a court has jurisdiction over all
persons residing in its area and over all causes of action that arise in its area of
jurisdiction.
[29] A court's jurisdiction may be limited in terms of both common law and by
statute. Under common law, a high court does not have jurisdiction to vary or
set aside a court order issued by another court that has equal standing.11 This
was confirmed in the Pretoria Portland Cement12 case in which it was held inter
a/ia that:
" ... There are other means, quite sufficient means, to which I shall come,
by which the judgment of a judge may be corrected."
[29] What was espoused in the judgment above is not controversial either. On that
principle, this court may not vary or set aside the orders that were granted by
the court in the Gauteng Division. I do not understand it to be Musina's case to
be asking this court to grant an order for variation or one that will have the
effect of correcting the order so granted. The Municipality is asking through this
application that its application be accepted and considered by NERSA even
though it was submitted a date later than the cut-off time.
[30] NERSA's objection to jurisdiction is inter a/ia that the matter has already been
before another court. It also disputes that it operates in the area of jurisdiction
of this Court and that its head office is in Pretoria. I do not share the same
company with NERSA on this contention. This is distinctly an application
espoused in Rule 27 of the Uniform Rules. That the case has a litigation history
1° Connolly v Ferguson 1909 TS 195 at 198.
11 Pretoria Portland Cement Co. Ltd v Compensation Commission 2003 (2) SA 385 at para [35].
12 Ibid.
in Gauteng High Court is a matter of common knowledge. The uncontroversial
terms of the court orders issued in that Division are also well understood. It was
in terms of the latest order that was granted by Mooki J that the final date of 31
March 2026 was determined.
[31] Musina only offered a general denial of the point made by NERSA that has no
operations that are based in provinces. The facts point to an ineluctable
position that NERSA does not have provincial operations. That is not the end of
the inquiry. The court notes that other parties such as Eskom and SALGA, on
whom the court may exercise jurisdiction, have provincial offices. On the basis
that the court has jurisdiction to adjudicate the case which includes NERSA.
[32] I cannot reach the conclusion, on my interpretation of the 20 February order,
that the court intended to prevent any other court from adjudicating a case that
is somehow connected to its order. Such intention does not appear from the
text of the order. Neither can such a conclusion be drawn from the orders that
preceded it. On this ground, too, I find that this court's jurisdiction is not
affected.
Whether the Municipality has made out a case for condonation
[33] The essence of any condonation application derives from an acknowledgment
of non-compliance with either a statutory rule or an order of court. It is not
different for this case.
[34] As a starting point, I am inclined to observe the obvious fact that the
Municipality was unable to file its application for review of tariffs on the last day,
being 31 March 2026. The date was in terms of a directive that was issued by
Mooki J in the 20 February order. Before that court was an application for
variation, which succeeded. The order reads in part as follows:
11
"2.2 Paragraph 2.2 of the order: the words by 20 March of every year are
replaced with 31 March 2026;
6. Any municipality may, in relation to the variation ordered in paragraph 2
and on good cause shown, seek leave of the court for a further
deviation:
6.1 Any application contemplated in paragraph 6 shall be enrolled to
be heard in the urgent court on 17 March 2026;
6.2 Any such application shall give respondents at least three (3)
court days to have filed opposing papers ... "
[35] The Municipality did neither of the two things that were set out in paragraph 6
that I have quoted above. It is on that basis that it is asking for condonation of
the late filing of its application for tariff review. This begs the question of
whether the municipality has shown good cause to be granted condemnation. If
the answer is in the negative, the municipality will fail to get the order that it is
asking for. I therefore begin by assessing the grounds presented by Mussina
for its failure to submit its application on the date set out.
The Municipality's explanation for its delay
[36] There are essentially three grounds on which the application hinges. The
grounds form part of the explanation that was proffered by the Municipality in its
founding papers, and which can be summarized as follows:
[36.1] First, that it was not aware of the new deadline. It said it became aware
of the new date on 17 March 2026 when it received the letter dated 9
March 2026. By then it was already late for it to comply with the order in
terms of approaching court for relief as set out in paragraph 6.2 of the
order. Also, the submission date was left with only 13 days to run.
12
Musina blames NERSA for this. I do not allow myself to be drawn into
the question of who was wrong.
[36.2] Second, that its plans for public participation had already been made for
April 2026. The explanation was that the Municipality's plans were
already scheduled to run into April 2026.
[36.3] Third, that when the new deadline was communicated, it had to start the
consultation process at an accelerated pace. By that time, it explained,
there were a few days remaining.
[37] Regarding its acquisition of knowledge, Musina indicated that the notice was
conveyed in a letter dated 9 March 2026. The information reached it on 17
March 2026. Before then, it had not been aware that there was a deadline set
for municipalities to submit their applications for tariff reviews. One may criticize
the Municipality for not heeding the terms of paragraph 6 of the court's order to
ask for variation of the applicable timeframes. I say this because the
Municipality was one of the parties that were cited in the application. It seems
that it did pay proper attention to the case and its outcomes.
[38] A party that seeks condonation must show good cause to the satisfaction of the
court.13 The applicant must provide a full explanation for its non-compliance. It
must also show that the interests of justice favours the granting of an order
condoning the non-compliance. 14 In the circumstances of this case, as already
highlighted, the non-compliance was in respect of the deadline set by the court
on 20 February 2026.
[39] In Junkeeparsad v Solomon, 15 the position was stated as follows:
13 Grootboom v National Prosecuting Authority and Another (CCT 08/13) [2013] ZACC 37; 2014 (2) SA 68
(CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) (21 October 2013).
14 Van Wyk v UNITAS Hospital 2008 (2) SA 472 (CC) at paras [20] and [22].
15 [2021] ZAGPJHC 48 at para 7.
13
"Factors which usually weigh with a court in considering an application
for condonation include the degree of non-compliance, the explanation
therefore and an applicant's prospects of success on the merits. (See
Ferris and another v Firstrand Bank Ltd 2014 (3) SA 39 (CC) para 10;
Federated Employers Fire & General Insurance Company Limited &
another v McKenzie 1969 (3) SA 360 (A) at 362F-G; Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development
Company Ltd and others {2013} All SA 251 (SCA) para 11.) In Valor IT v
Premier, North West Province and Others 2021 (1) SA 42 (SCA) para 39,
Plasket JA said that 'very week prospects of success may not offset a
full, complete and satisfactory explanation for a delay; while strong
merits of success may excuse an inadequate explanation for the delay
(to a point)."
[40] The delay in this case was one day. Naturally, there is not a lot of time to
expound on. According to the Municipality's explanation, the delay was caused
by the fact that it was already operating in terms of its plans when it got the
information on 9 March 2026. It had to expedite its public hearings to meet the
timeframes . Its best endeavours failed; hence, it was still late by a day to
deliver its application.
[41] This is not a weak explanation, considering the requirement to hold effective
public participation and the processes for achieving it. One recalls the question
as it arose in Matatiele Municipality v President of the Republic of South Africa
and Others16 where the court dealt with the failure to ensure effective public
participation and found it inimical to constitutional order. I understand the
predicament that the Municipality found itself in, on the one hand, having to
exhaust public participation and, on the other, having to meet the timeline.
[42] I said earlier that the Municipality deserves criticism. That was because the
court created a path for parties in a similar position as the Municipality to
court created a path for parties in a similar position as the Municipality to
approach it and to seek variation of the 20 February 2026 order. Though the
order was presented in clear terms, the Municipality did not take advantage of
the leeway created by the order to approach it urgently to ask it for the
16 2006 (5) BCRL 622 (CC).
14
relaxation of time. That is not, on its own, a good reason to non-suit Musina
from asking for condonation. Even if the knowledge of the order was received
later, it could still have approached court then to seek relief, which it did not do.
The interests of justice aspect
[44] The Municipality explained how the situation that it finds itself in will affect its
operations. It indicated that it would face a struggle to afford to procure and pay
for electricity as Eskom's tariffs have been increased. Also, it would struggle to
render services to its community as it draws some of its income from the sale of
electricity. This latter explanation is not good. A Municipality is required to
ringfence the income derived from electricity sales and not use it for its other
services.
[45] Regardless of the length of delay, the interests of justice considerations remain
the standard for determining if condonation is to be granted.17 Cameron J wrote
in Buffalo City18 the following:
"[120] On the contrary, the delay bar serves an important rule of law function:
it promotes the public interest in the certainty and finality of decision
making. This is an imperative focus whenever a court undertakes a
case-specific enquiry as to the reasonableness of the delay. The
explanation proffered is a key consideration in assessing its
reasonableness, particularly in state self-review. It is an opportunity for
the state to demonstrate that its self-review seeks to promote open,
responsive and accountable government rather than the self-interest of
state officials seeking to evade the consequences of their prior
decisions. This is the key in deciding whether the Municipality's
behaviour passes the interests of justice test for granting leave to
appeal.
[121] Even where a delay is found to be unreasonable, however, our
precedents establish that a court retains a discretion to overlook the
delay provided it is in the interests of justice to do so. This stage of the
17 Van Wyk, supra.
17 Van Wyk, supra.
18 Buffalo City Metropolitan Municipality v Asia Construction (Pty) Limited (CCT91 /17) [2019] ZACC 15; 2019
(6) BCLR 661 (CC); 2019 (4) SA 331 (CC) (16 April 2019).
15
procedural enquiry should not take place in a "vacuum". It must instead
involve weighing (a) the effect of the delay on the parties and (b) the
nature of the impugned decision." [Footnotes excluded]
[46] On the facts of this case, Musina has placed before the court what seems to be
the hardships that it will endure if the tariff revision is not done. NERSA
contends that the Municipality is operating under the assumption that the
revision will result in a tariff increase. Well, we will not know what the outcome
will be unless and until such time that the revision is attended to. What stands
before the court is that the Municipality, and by extension the community,
stands to suffer service delivery challenges if the revision is not done. In light
thereof, I find that the interest of justice favour the granting of the relief sought
by the Municipality.
Consideration of costs
[47] Although the Municipality has succeeded, it is not without criticism. It could
have approached the matter differently and earlier even though the window for
doing so in terms of the court order of 20 February 2026 had closed. On that
basis, I do not award it the costs of the litigation. In my view, each party must
settle its own costs.
Court order
[48] I make the following order:
[a] The application is urgent.
[b] Musina Local Municipality's late submission of its Revised Municipal
Tariffs in its FY2027/27 Electricity Tariffs that was submitted to the
National Energy Regulator of South Africa (NERSA) after 31 March
2026 is condoned.
16
[c] NERSA is directed and authorised to consider and provide an outcome
on the Municipality's application for revision of electricity tariffs for the
financial year 2026/27.
[d] Each party is to pay its own costs.
APPEARANCES:
FOR THE APPLICANT
INSTRUCTED BY
FOR THE RESPONDENT
DATE HEARD
CIRCULATED ON
MAKOTI AJ
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO DIVISION
POLOKWANE
MS SIKHWARI SC
MRTEFU
TSHIKOVHI INC ATTORNEYS
POLOKWANE
R TSHETLO
N MABUBULA
MCHUNI ATTORNEYS
c/o ESPAG MAGWAI ATTORNEYS
POLOKWANE
23 JUNE 2026
3 AUGUST 2026