- The court found that Eskom is not covered by the law requiring notice before suing certain state bodies.
- Free State farmers claim their farms were damaged by fires allegedly caused by Eskom power lines in 2018.
- The judgment allows the damages claim to proceed and limits the use of technical defences by state entities.
Free State farmers who say their land was scorched by fires linked to Eskom’s electricity infrastructure have won a crucial legal battle.
The Supreme Court of Appeal has ruled that their case can proceed, and that a technical notice requirement cannot be used to shut the door on them.
The case involves Louis Johannes Botha, Hendrik Francois Naude, Wesdan Boerderye (Pty) Ltd, Goueveld Boerdery (Pty) Ltd, and Christoffel Petrus Scheepers. They allege that in September 2018, fires tore through their farms in the Free State, causing significant damage, and that Eskom’s negligence was to blame.
In August 2021, they took the matter to the High Court in Bloemfontein. Their claim relies on a provision in electricity legislation that presumes Eskom is negligent in certain cases involving damage caused by its infrastructure, unless Eskom can prove otherwise.
But before the court could even consider whether Eskom was negligent, the power utility moved to have the case thrown out entirely.
Eskom tries to block the claim
Eskom argued that the farmers had failed to follow a mandatory legal step before approaching the court.
It relied on a law that requires people to give written notice at least six months before suing certain organs of state. Eskom claimed this rule applied to it, given its status as a state-owned entity performing a public function.
Because the farmers had not given this notice, Eskom argued their case should be dismissed, without the court ever considering the underlying facts.
The High Court rejected this argument. A Full Court reached the same conclusion. Eskom then took the matter to the Supreme Court of Appeal.
The key legal question
The case turned on whether Eskom fall within the group of state institutions that must be given notice before being sued.
Eskom argued that it does, pointing to its role as a state-owned company responsible for supplying electricity and serving the public. The farmers argued that the law applies only to a limited group of institutions, and that Eskom is not one of them.
The court draws a clear line
Judge JE Smith, writing for the court, said the law Eskom relied on does not apply to every public entity. He said, “The Act’s definition of an organ of state differs substantially from that of the Constitution.”
The court explained that the law is deliberately narrow in scope, applying only to “certain organs of state”, meaning those specifically listed or those whose powers flow directly from the Constitution.
Judge Smith stated, “Eskom, by contrast, is not referred to in the Constitution, nor does it perform any function in terms of the Constitution.”
The court rejected Eskom’s argument that performing a public function is sufficient. The connection, it held, must be direct and constitutional, not merely grounded in legislation.
That finding meant Eskom could not use the notice requirement as a shield to block the farmers’ case.
Treasury argument rejected
Eskom also argued that it should qualify under a separate provision of the law, on the basis that the National Treasury supports it financially and has provided debt relief.
The court rejected this argument. Judge Smith said, “This arrangement does not transfer Eskom’s debt liability to National Treasury.”
He added, “No statutory nor legal basis exists to establish liability on the part of National Treasury for debts accrued by Eskom.”
The court emphasised that financial support alone does not make the Treasury legally responsible for Eskom’s debts.
The Supreme Court of Appeal dismissed Eskom’s appeal with costs, including the costs of senior counsel. The farmers’ damages claim will now proceed in the ordinary course of litigation.
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