BLOEMFONTEIN – The Supreme Court of Appeal has dismissed Eskom’s bid to block a damages claim from five Free State farmers who say fires caused by the utility’s power lines destroyed their land.

The court ruled with costs that Eskom does not qualify for legal protections typically afforded to certain state institutions, clearing the way for the farmers’ compensation case to proceed.

The case involves Louis Johannes Botha, Hendrik Francois Naude, Wesdan Boerderye (Pty) Ltd, Goueveld Boerdery (Pty) Ltd, and Christoffel Petrus Scheepers. They claim fires in September 2018 scorched their Free State farms due to Eskom’s negligence.

Legal battle over notice requirements

Eskom argued it should benefit from a law requiring six months’ written notice before certain state organs can be sued. The Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 provides this protection to specific government entities.

The power utility claimed it qualified because of its state-owned status and role in electricity supply. Eskom also pointed to National Treasury’s financial support and the Eskom Debt Relief Act 7 of 2023 as grounds for protection.

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Judge JE Smith rejected both arguments, writing that the act applies only to entities specifically listed or whose powers flow directly from the Constitution.

“Eskom, by contrast, is not referred to in the Constitution, nor does it perform any function in terms of the Constitution,” Judge Smith stated.

Financial support insufficient

The court dismissed Eskom’s claim that National Treasury’s financial backing should grant it protection under the act.

“This arrangement does not transfer Eskom’s debt liability to National Treasury,” Judge Smith said. “No statutory nor legal basis exists to establish liability on the part of National Treasury for debts accrued by Eskom.”

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The farmers launched their claim at the Bloemfontein High Court in August 2021, relying on electricity legislation that presumes Eskom negligent in infrastructure damage cases unless proven otherwise.

Eskom moved to have the case dismissed entirely, arguing the farmers had failed to provide the required six-month notice. Both the High Court and a full court rejected this position before Eskom appealed to the Supreme Court of Appeal.

Next steps

The ruling allows the farmers’ damages claim to proceed through ordinary litigation. No court has yet ruled on whether Eskom was actually negligent in causing the 2018 fires.

Eskom has not indicated whether it will appeal to the Constitutional Court, South Africa’s highest judicial authority.

The Supreme Court of Appeal ordered Eskom to pay the costs of the case, including senior counsel fees.