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[1]              This is an application for leave to appeal against a judgment and order of the Supreme Court of Appeal dismissing the applicant’s appeal against the judgment and order of the High Court of South Africa, Gauteng Division, Pretoria (High Court).[1]  The High Court granted an interim interdict in terms of which it prohibited the applicant from implementing its decision to reduce bulk electricity supply to two municipalities, pending finalisation of an application to review that decision.[2]

Parties

[2]              The matter originates from two urgent applications that were joined before the High Court.  Before this Court, although there is but one application, the parties are cited as they were in the original applications.

[3]              Eskom Holdings SOC Limited (Eskom) is the applicant in both applications.  The National Energy Regulator of South Africa (NERSA) and the Minister of Energy (Minister) are the third and fourth respondents in both applications.

[4]              In the first application, the first respondent is the Vaal River Development Association (Pty) Limited, a non-profit organisation representing the residents of Ngwathe Local Municipality (Ngwathe Municipality).  Ngwathe Municipality is the second respondent.  The fifth and sixth respondents are the Premier of the Free State and the Member of the Executive Council for Cooperative Governance and Traditional Affairs, Free State.

[5]              In the second application, the first respondent is the Lekwa Ratepayers Association, a non-profit organisation representing the residents of Lekwa Local Municipality (Lekwa Municipality).  Lekwa Municipality is the second respondent.  The fifth and sixth respondents are the Premier of Mpumalanga and the Member of the Executive Council for Cooperative Governance and Traditional Affairs, Mpumalanga.  The first respondents in both applications are referred to jointly as “the Associations” or “the residents”.

[6]              In both applications, only Eskom and the Associations filed papers before this Court.

The origins of the case

[7]              Eskom supplies bulk electricity, under contract, to the Lekwa and Ngwathe Municipalities (municipalities).  The contracts concluded between Eskom and the municipalities for the supply of electricity obliged Eskom to supply electricity up to each municipality’s Notified Maximum Demand (NMD).  The NMD for the Ngwathe Municipality was agreed in 2008.  For the Lekwa Municipality, an increased NMD was agreed to in 2010.  For extended periods since these agreements were struck, Eskom supplied electricity to the municipalities in excess of their NMD.