NERSA FIGHTS CON­STI­TU­TIONAL COURT AP­PEAL

CityPress - - Business - MAX MATAVIRE busi­ness@city­press.co.za

The Na­tional En­ergy Reg­u­la­tor of SA (Nersa) is op­pos­ing an ap­pli­ca­tion for leave to ap­peal filed with the Con­sti­tu­tional Court by five com­pa­nies in Port Elizabeth and the Nel­son Man­dela Bay Busi­ness Cham­ber against a pro­posed elec­tric­ity tar­iff in­crease. Nersa filed the court pa­pers this week.

Last year, Eskom ap­plied to Nersa to in­crease tar­iffs for 2016 by 8%.

The five Port Elizabeth com­pa­nies, known as the High En­ergy User Group, then chal­lenged this in the high court and the court lim­ited the tar­iff hike to 2.2%.

Nersa and Eskom then chal­lenged the judg­ment at the Supreme Court of Ap­peal (SCA), which last month ruled in their favour and set the judg­ment aside.

Two weeks ago, the High En­ergy User Group ap­proached the Con­sti­tu­tional Court seek­ing leave to ap­peal the SCA judg­ment.

Fran­siskus Hinda, a se­nior fi­nan­cial an­a­lyst at Nersa, ar­gues in the pa­pers that the ap­pli­cants had suf­fi­cient time to lodge for ac­cess to re­quests be­fore the clos­ing date for writ­ten sub­mis­sions.

“No grounds ex­ist to re­view the de­ci­sion on this ba­sis,” he said. “The ap­pli­cants chal­lenge the reg­u­la­tor’s de­ci­sion on es­sen­tially two grounds: the pro­ce­dure of the ad­min­is­tra­tion process and the ir­ra­tional­ity of the de­ci­sion.

“The ap­pli­cants made oral and writ­ten rep­re­sen­ta­tions to the reg­u­la­tor, dur­ing which they did not raise con­cerns about not hav­ing a rea­son­able op­por­tu­nity to make rep­re­sen­ta­tions, or that they lacked the nec­es­sary in­for­ma­tion.

“I deal with the in­di­vid­ual crit­i­cisms on their own merit later and show that the al­le­ga­tions of ir­ra­tional­ity are ground­less,” Hinda said.

“If the court were to de­clare the reg­u­la­tor’s de­ci­sion to be in­valid, it is sub­mit­ted that it should not be set aside, but be re­mit­ted to the reg­u­la­tor for re­con­sid­er­a­tion.”

Nersa CEO Christopher For­lee ar­gued in his court pa­pers that the reg­u­la­tor had fully com­plied with its obli­ga­tions, adding that the ap­pli­ca­tion by the five com­pa­nies “has no rea­son­able prospect of suc­cess”.

“The ap­pli­ca­tion for leave to ap­peal should be dis­missed. The SCA did not de­cide the case on the ba­sis of Eskom’s li­cence as Bor­bet [one of the com­pa­nies] says. While the SCA’s judg­ment does in­deed re­fer to the li­cence, it also makes it clear that no reliance was placed on it in de­ter­min­ing the law­ful­ness of the im­pugned de­ci­sion.”

Do you think the com­pa­nies should be granted leave to ap­peal? SMS us on 35697 us­ing the key­word NERSA and tell us what you think. Please in­clude your name and prov­ince. SMSes cost R1.50

Nersa’s op­pos­ing pa­pers also say there is no merit in the ap­pli­cants’ al­le­ga­tion that the ef­fect of the SCA’s judg­ment is that Nersa’s con­duct is ap­par­ently im­mu­nised from scru­tiny by the courts.

“Not only did the SCA hold that Nersa’s de­ci­sions are re­view­able un­der the Pro­mo­tion of Ad­min­is­tra­tive Jus­tice Act 3 of 2000, but it con­sid­ered and ad­dressed all of the ap­pli­cants’ grounds of re­view,” For­lee said in his op­pos­ing pa­pers.

The re­view failed be­cause the ap­pli­cants had not made out a case on the facts be­fore the court, he added.

“Un­der the cir­cum­stances, I sub­mit that it is not in the in­ter­ests of jus­tice for leave to ap­peal to be granted,” For­lee said in the pa­pers.

Speak­ing to City Press af­ter read­ing the op­pos­ing pa­pers, the spokesper­son of the High En­ergy User Group, David Mertens, said: “Nersa mis­lead­ingly tries to hide its own fail­ures and keeps re­duc­ing its lack of good gov­er­nance to a mi­nor de­vi­a­tion, which can­not be con­doned.”

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