Pioneer Foods (Pty) Ltd v Eskom Holdings SOC Limited & Others

Pioneer Foods (Pty) Ltd operates a maize mill within the jurisdiction of the Walter Sisulu Local Municipality. Eskom supplies electricity to the Municipality, which in turn distributes it to end-users. The Municipality fell into arrears of over R100 million with Eskom. Between July 2017 and January 2018, Eskom took decisions to implement intermittent electricity supply interruptions to the Municipality to pressure payment of the arrears. Pioneer was affected by these interruptions and launched an urgent application in January 2018, obtaining interim relief, and subsequently sought judicial review of Eskom's decisions to interrupt electricity supply. Pioneer contended that Eskom was not entitled to interrupt supply solely to coerce payment and that Eskom had to comply with PAJA requirements. The high court dismissed Pioneer's application, finding no locus standi, that section 30 of the ERA was an internal remedy that had to be exhausted first (section 7(2) PAJA), and that Eskom was empowered under section 21(5) of the ERA to interrupt supply. Pioneer appealed to the Supreme Court of Appeal.

• Whether the appeal had become moot in light of subsequent jurisprudential developments
• Whether section 21(5) of the Electricity Regulation Act 4 of 2006 empowers Eskom to interrupt electricity supply without prior court authorization
• Whether section 30 of the ERA constitutes an internal remedy under section 7(2) of the Promotion of Administrative Justice Act 3 of 2000
• Whether the Court should exercise its discretion to hear a moot appeal on a discrete legal issue of public importance

The appeal was dismissed. There was no order as to costs.

An appeal is moot and will be dismissed under section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 where: (1) the legal issues raised have been definitively settled by subsequent authoritative judgments; (2) the impugned decisions are time-bound and have already been implemented and lapsed such that any court order would have no practical effect; and (3) there is no discrete legal issue of public importance that warrants the exercise of the Court's discretion to hear the moot appeal. The court will not exercise its discretion to hear a moot appeal unless a discrete legal issue of public importance arises that would affect matters in the future and requires adjudication.

The Court noted that Eskom's decisions to interrupt electricity supply to municipalities constitute administrative action under section 1 of PAJA, and Eskom must comply with both substantive and procedural fairness requirements of PAJA in each instance. Counsel for Eskom gave an assurance of Eskom's commitment in this regard. The Court also observed that if Eskom needs to implement electricity supply interruptions in the future, it would have to take new decisions complying with relevant provisions of the IRFA and PAJA. The Court deemed it fair that there should be no order as to costs in the circumstances of the moot appeal.

This case illustrates the application of the mootness doctrine under section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 in appeals. It demonstrates that where the key legal issues have been settled by subsequent authoritative judgments and the impugned decisions are time-bound and have already lapsed, the appeal becomes moot and will be dismissed unless there is a discrete legal issue of public importance requiring adjudication. The case also reinforces the principles established in Eskom Holdings SOC Ltd v Resilient Properties regarding Eskom's powers under section 21(5) of the ERA, the non-applicability of section 30 as an internal PAJA remedy, and Eskom's obligations under the Intergovernmental Relations Framework Act when dealing with municipalities. It emphasizes the importance of compliance with PAJA in administrative decisions affecting electricity supply.