The High Court in Pretoria set aside Nersa's decision to add a development to Eskom's licensed area.
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The High Court in Pretoria recently refused Eskom permission to appeal a ruling that favoured the City of Tshwane in the fight over who supplies electricity to the Mooikloof Mega City development.
Judge Anthony Millar handed down the decision on 8 October 2026, after hearing arguments on 22 September 2026.
According to the judgment, the National Energy Regulator of South Africa (Nersa) also applied for leave to appeal but abandoned the move before the hearing.
“I am of the view that another court would not come to a different conclusion or that there is any compelling reason for the grant of leave to appeal,” Millar said, after weighing the grounds and arguments.
“The application for leave to appeal is refused with costs, which costs are to include the costs consequent upon the employment of 2 counsel, on Scale C where so employed,” his order added.
Why the original ruling went against Eskom
On 8 June 2026, Millar set aside Nersa’s 10 February 2023 decision to add the development to Eskom’s licensed area.
According to court records, the Farm Rietfontein 375-JR, part of the site, had been listed in Tshwane’s licence since 2011, while Eskom’s licence covered only a handful of existing customers there.
The judge found that Eskom asked to change its own licence, but nobody applied to change Tshwane’s.
“Expanding Eskom’s portion without contracting Tshwane’s portion creates an impermissible overlap,” Millar stated.
The court also rejected Nersa’s greenfield argument, finding that the Rules do not support this contention.
“A greenfield, as defined, is an area outside of an existing licensed area of supply that has never had any electrical connection. The farm has been within Tshwane’s licensed area since 2011. It is not outside any existing licensed area, and therefore cannot be characterised as a greenfield. “
How the licence dispute unfolded
Eskom applied to Nersa on 25 March 2021, but Tshwane learned of the application only from media reports in March 2022.
The city then attended the public hearing on 11 April 2022 and estimated that the full 50 000-unit development would bring in about R125 million a month.
According to the judgment, Tshwane told Nersa that “The loss of revenue, if the licence was granted to Eskom, would be significant for Tshwane.”
Nersa’s own electricity subcommittee raised the problem on 10 February 2023.
“Members were of the view that the City of Tshwane’s licence should be first amended to remove the area before including it in Eskom’s distribution licence,” the record showed.
Nersa approved Eskom’s application anyway, and Millar noted that “No such amendment to Tshwane’s licence was ever made or applied for.”
Municipalities’ constitutional powers
Nersa and Eskom argued that electricity supply did not fall under the exclusive jurisdiction of municipalities.
Millar rejected this and ruled that “The constitution unequivocally confers executive authority and jurisdiction over electricity reticulation on Tshwane.”
“This is the nub of the review and why it must succeed,” he added.
The judgment also relied on the Constitutional Court’s finding in Joseph v City of Johannesburg that “The provision of basic municipal services is a cardinal function, if not the most important function, of every municipal government.”
Orders and costs
The original order declared Nersa’s decision unlawful and invalid and confirmed that the development, insofar as it sits on the farm, falls within Tshwane’s licensed area.
The order stated that the development “is an area included in Schedule 1 of the City of Tshwane’s electricity licence number NER/D/TSHWANE granted by the first respondent on 13 October 2011 for the operation of a distribution facility.”
Eskom and Nersa were ordered to pay Tshwane’s costs.
“Regarding costs, given the nature and importance of this matter to all parties, engagement of more than one counsel was a wise and reasonable precaution. Costs are ordered on Scale C, including costs of two counsel,” Millar explained.
