Eskom Holdings Soc Ltd v Sidoyi and Others

On 17 July 2017, Eskom disconnected electrical apparatus in the Zwelitsha area that had allegedly been illegally erected and connected to the national grid, posing a danger to the public. The disconnections included connections to a property owned by Mr Sidoyi, which contained twelve flats. Mr Sidoyi claimed he had applied for electricity in August 2014 and that a contractor, who allegedly assured him it was authorised by Eskom, installed electricity in 2015. He had been purchasing electricity via a prepaid meter since 2015. Eskom contended that Sidoyi's application was only for an indigent supply limited to 20 Amps (which was discontinued in 2016), that the contractor was not authorised by Eskom, and that the connections were illegal, lacked proper certification, and posed a danger to the public. A community meeting on 14 July 2017 had raised concerns about interruptions caused by overloading and safety issues from illegal connections. Mr Sidoyi launched proceedings claiming unlawful disconnection and seeking restoration of electricity supply.

• Whether the electricity installation to the respondents' homes was lawfully installed
• Whether the disconnection of the electricity supply constituted administrative action under the Promotion of Administrative Justice Act (PAJA)
• Whether a person receiving electricity through an allegedly unlawful connection has a right or legitimate expectation to that supply
• Whether the removal of allegedly illegal electrical apparatus that poses a danger adversely affects rights for purposes of administrative action
• Whether Eskom had a duty to remove illegal installations under Regulation 7(7) of the Electrical Installations Regulations
• Whether on the papers there was a genuine dispute of fact requiring the hearing of oral evidence

The appeal succeeded with no order for costs. The high court order was set aside and replaced with an order referring the application for the hearing of oral evidence on whether the electricity installations to the applicants' homes were lawfully installed. Rules 33 to 39 were to apply. Deponents to affidavits were to be available for supplementary evidence and cross-examination. Either party could call additional witnesses with 10 days' notice. Costs were reserved for the court hearing the oral evidence.

The binding legal principles established are: (1) Where there is a dispute about whether an electricity installation was lawfully installed, this threshold issue must be determined before any claim for restoration of supply can succeed. (2) A person who receives electricity through an unlawful connection has no right or legitimate expectation to that supply for purposes of administrative action under PAJA. (3) Administrative action under PAJA requires that the action adversely affects rights; removal of unlawfully connected apparatus does not adversely affect rights as there is no right to an unlawful supply. (4) The mere ability to purchase prepaid electricity does not establish that the underlying installation and supply are lawful. (5) Where there is a genuine dispute of fact on the papers regarding the lawfulness of an installation, the matter must be referred for oral evidence under Rule 6(5)(g) rather than decided on the papers.

The court made several non-binding observations: (1) It criticized Eskom's inadequate record-keeping during the disconnection programme, noting the absence of detailed records, photographs, and proper documentation of each removal. (2) The court expressed concern about the high court order requiring Eskom to install electricity supply within 30 days, noting it was unclear on what basis a court could compel Eskom to replace an unlawful supply with a lawful one. (3) The court noted it was 'a great pity' that the high court judge did not identify the illegality issue and refer it to oral evidence at first instance. (4) The court implied criticism of Mr Sidoyi's vague evidence, particularly his failure to identify the contractor or produce installation certificates when challenged. (5) While Eskom initially conceded the removal constituted administrative action (following Joseph), the SCA observed this concession may not have been correctly made given the fundamental difference between terminating lawful supply and removing unlawful apparatus.

This case is significant in South African administrative law and electricity law for several reasons: (1) It clarifies that the removal of unlawfully installed electrical apparatus does not constitute administrative action under PAJA where the recipient has no legal right to the supply, as administrative action requires adverse effect on 'rights'. (2) It distinguishes cases involving termination of lawful electricity supply (like Joseph v City of Johannesburg) from removal of unlawful connections. (3) It confirms that the ability to purchase prepaid electricity does not alone establish a legal right to supply if the installation itself is unlawful. (4) It emphasizes the importance of resolving factual disputes about the lawfulness of installations before determining claims for restoration of supply. (5) It illustrates the proper use of Rule 6(5)(g) referrals for oral evidence when material factual disputes cannot be resolved on the papers. (6) It addresses the intersection between contractual rights (electricity purchase) and regulatory compliance (lawful installation requirements) in electricity supply disputes.