The Supreme High Court has ruled against the Coal Transporters Forum (CTF) in a case that pursued the annulment of power purchase agreements (PPAs) with Independent Power Producers (IPPs).
The South African Wind Energy Association (SAWEA), which represents the interests of its members who are invested in the local utility-scale wind power value chain, has welcomed a judgment by the Supreme Court of Appeal to dismiss the case.
CTF had argued that the court should declare null and void all Round 4 PPAs signed by Eskom with IPPs at the time because it claimed that the National Energy Regulator of South Africa (NERSA) had not properly approved the section 34 authorisation which was a pre-requisite for the IPP process.
Secondly, the Coal Transporters Forum sought to interdict the conclusion by Eskom of the then-pending PPAs with three bid window 4 IPPs, which had not been signed when they argued their case.
CTF further argued in its founding affidavit that the renewables programme would impact negatively on Eskom’s financial performance.
IPPs strategically aligned with national energy security
SAWEA CEO Ntombifuthi Ntuli welcomed this final judgement issued by the Supreme Court of Appeal, handed down on 30 January 2020.
Ntuli said: “The first judgement was handed by the High Court in March 2019, two years after the first application. The CTF was refused leave to appeal in the High Court (June 2019) and have now also lost this petition for leave to appeal to the Supreme Court of Appeal.
“The courts have each time dismissed the applications, with cost of legal counsel payable by CTF to each of the respondent entities, including Eskom, NERSA, the Minister of Energy and the IPP respondents, all of which joined together in opposing CTF. The timeframe to petition the Constitutional Court for leave to appeal, has now passed, which finally closes the door on this case.”
In his judgment handed down by the High Court Judge P.A. Meyer in March 2019, he confirmed that NERSA and the Department of Energy followed all correct procedures before finalising and signing the PPAs.
“The CTF legal challenge was launched on the basis of arguments which had no legal basis and which demonstrated little appreciation of government’s clear commitment to achieving a more diverse energy mix that would build national energy security while also addressing national climate objectives and achieving local economic development,” added Ntuli.