Pretoria – The High Court in Pretoria has ruled against a move by Eskom and the National Energy Regulator of South Africa (Nersa) to settle the power supplier’s tariff dispute behind closed doors.
The court ruling comes after a proposed R54 billion settlement between the two entities sought to correct an error in Eskom’s allowable revenue determination without the proposed investigations, proper public participation, or referral back to Nersa.
The court reviewed and set aside Nersa’s original revenue decision and refused to make the settlement agreement an order of court.
On Monday, 22 December 2025, AfriForum said it intervened in this matter in October after Eskom’s original court application for a review of Nersa’s decision regarding Eskom’s Multi-Year Price Determination (MYPD) tariff application was abruptly converted into a settlement agreement.
“The settlement would have allowed Eskom to recover approximately R54 billion from electricity consumers through substantial tariff increases, without proper investigation or meaningful public participation,” explained AfriForum.
In its judgment, the court found that Nersa’s revenue decision was unlawful, irrational, and based on material calculation errors.
“Importantly, the court rejected the notion that Eskom and Nersa could correct these errors through a negotiated compromise that bypasses public scrutiny,” AfriForum stated.
The court found that electricity tariff decisions affect all South Africans and that transparency and public participation were non-negotiable components of lawful regulation.
AfriForum said it placed Nersa’s own reasoning squarely before the court.
The reasoning included Nersa’s admission that one of the perceived advantages of the settlement was that it would bind the parties and avoid the details being aired in open court, thereby limiting further scrutiny and the possibility of a far-reaching court order.
AfriForum said the court expressly criticised this approach, finding that it is contrary to public policy, constitutional principles, and the statutory framework governing electricity regulation.
“This judgment confirms that Nersa cannot quietly negotiate away the rights of electricity consumers in order to shield itself from accountability,” stated Morné Mostert, Manager for Local Government Affairs at AfriForum.
“The court made it clear that convenience cannot justify secret deals that would saddle the public with billions in additional costs.”
The court further ordered that the matter be referred back to Nersa for reconsideration, with due regard to proper methodology and written submissions, and emphasised that the absence of public participation in the settlement process was fundamentally flawed.
AfriForum and the Minerals Council of South Africa were found to have had a direct and substantial interest in the matter, were entitled to intervene and have done so successfully.
Eskom and Nersa have subsequently been ordered to pay AfriForum’s and the Minerals Council of South Africa’s legal costs.
“This is a landmark judgment for electricity users,” Mostert said.
“It sends a clear message that Nersa and Eskom are not above the law, and that decisions affecting electricity tariffs must be made transparently, lawfully, and with full public participation.
AfriForum said it will continue to act as a watchdog to ensure that South Africans are not forced to pay the price for regulatory failure.”
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