NERSA FIGHTS CONSTITUTIONAL COURT APPEAL
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.”
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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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