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[1] Eskom Holdings SOC Limited (Eskom), the appellant, and Letsemeng Local Municipality (Letsemeng), the respondent, are locked in a dispute over the non-payment by Letsemeng of its electricity supply account. As at 31 January 2020, Letsemeng’s debt had accumulated to an astronomical figure of R41 094 530.19. Based on Letsemeng’s recurrent failure to comply with its obligations, Eskom issued a final notice to interrupt electricity supply with effect from 18 February 2020. This precipitated the launching of an urgent application in the Free State Division of the High Court, Bloemfontein (the high court) by Letsemeng to interdict Eskom from implementing the interruption pending the review of that decision and the determination of a dispute between the parties to be referred to the National Energy Regulator of South Africa (Nersa), the second respondent, in accordance with the provisions of the Electricity Regulation Act 4 of 2006 (the ERA).

[2]        Eskom opposed the application and filed a counter-application in which it sought, inter alia, to compel Letsemeng to comply with its obligations in terms of the electricity supply agreement (ESA) that it and Letsemeng had concluded. Letsemeng’s failure to meet its payment obligations lies at the heart of the counter-application which is founded on two acknowledgements of debt (AOD) signed by Letsemeng and a certificate of balance issued by a senior manager of Eskom. 

[3]        The high court (per Loubser J) acknowledged that Eskom could not continue to supply electricity without Letsemeng paying for it. However, it was of the view that it could not grant Eskom an order for payment as Letsemeng had no funds with which to satisfy the debt. In any event, the high court held, such an order would have no practical effect. The high court was of the view that Eskom had itself to blame as it could have resorted to a number of alternative legal processes to remedy the default. Eskom proceeded at a glacial pace, so reasoned the high court, until it deemed it appropriate to resort to a threat to interrupt the supply of electricity to Letsemeng in order to force it to pay. The high court granted Letsemeng the interim interdict but dismissed Eskom’s counter-application.

[4]        Leave to appeal was granted by the high court in unqualified terms against both its order on the interim interdict and the counter-application. Despite this, Eskom only appeals against the order dismissing its counter-application.