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1.     This is an opposed application for leave to amend a plea and claim in reconvention.

It will be useful to briefly sketch the nature of the case.

2.     Ekurhuleni Metropolitan Municipality, as plaintiff sued Ergo Mining (Pty) Ltd for payment of close to R73.5 million plus interest in respect of charges for electricity which it alleges it has been supplying to Ergo at its Ergo plant (“E Plant”) since the end of November 2014.  Ergo denied the claim and raised a number of defences which included a denial that the Municipality had been supplying it with electricity[1].

3.    In its plea Ergo maintains that it receives its supply of electricity from Eskom Holdings SOC Ltd and has been paying over to the Municipality only the amount it claims it is liable for in terms of Eskom’s Megaflex tariff rates - the Municipality’s claim therefore is the difference between the Eskom tariff and what it has been charging Ergo.

4.    At the time it pleaded Ergo also instituted a claim in reconvention for an amount of just under R89.5 million. This represents the difference between the amount it had in fact paid the Municipality between the period December 2008 to November 2014 and the amount which the Municipality was liable to pay over to Eskom, being also the amount that it, Ergo, would have been obliged to pay Eskom directly in terms of the Megaflex tariff.

5.    The causes of action relied on in the existing counterclaim were based on unjust enrichment under the common law in terms of the condictio sine cause, alternatively under the common law infused with the constitutional protection afforded to property rights under s 25(1), (2) and (3) of the Constitution.