Legal View

Coal sector loses bid to halt renewable energy deals

Read time 2min 20sec
SAWEA CEO Ntombifuthi Ntuli.
SAWEA CEO Ntombifuthi Ntuli.

Renewable energy industry body, the South African Wind Energy Association (SAWEA), has welcomed a judgement by the Supreme Court of Appeal dismissing a case brought by the Coal Transporters Forum (CTF) to set aside power purchase agreements (PPAs) with preferred bidders.

The body represents the interests of its members who are invested in the local utility-scale wind power value chain,

CTF had argued the court should declare null and void all round four PPAs signed by Eskom with independent power producers (IPPs) at the time because it claimed the National Energy Regulator of SA (NERSA) had not properly approved the section 34 authorisation which was a prerequisite for the IPP process.

Secondly, CTF sought to interdict the conclusion by Eskom of the then pending PPAs with three bid window four IPPs, which had not been signed when they argued their case.

CTF further argued in its founding affidavit that the renewables programme would impact negatively on Eskom’s financial performance.

This comes after minerals and energy minister Gwede Mantashe said energy regulator NERSA has already approved 75 applications from private companies wanting to generate energy for self-use.

SAWEA CEO Ntombifuthi Ntuli welcomed this final judgement issued by the Supreme Court of Appeal.

“The first judgement was handed by the High Court in March 2019, two years after the first application. The CTF was refused leave to appeal in the High Court (June 2019) and have now also lost this petition for leave to appeal to the Supreme Court of Appeal,” says Ntuli.

“The courts have each time dismissed the applications, with cost of legal counsel payable by CTF to each of the respondent entities, including Eskom, NERSA, the minister of energy and the IPP respondents, all of which joined together in opposing CTF,” she adds.

“The timeframe to petition the Constitutional Court for leave to appeal has now passed, which finally closes the door on this case.”

In his judgement handed down by High Court judge PA Meyer in March 2019, he confirmed NERSA and the Department of Energy followed all correct procedures before finalising and signing the PPAs.

“The CTF legal challenge was launched on the basis of arguments which had no legal basis and which demonstrated little appreciation of government’s clear commitment to achieving a more diverse energy mix that would build national energy security while also addressing national climate objectives and achieving local economic development,” says Ntuli.

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