It was a late start at the Pietermaritzburg High Court on Friday morning as Judge Elsa Bezuidenhout waited to see if load shedding would result in a delay in the court proceedings between Eskom and the Newcastle municipality, reports the Newcastle Advertiser.
Newcastle, where residents have never experienced load shedding, waited to hear if Eskom would be allowed to switch off power to the town due to the municipality racking up more than R200 million in debt.
Court officials breathed a collective sigh of relief when the power remained on at 10.05am, as load shedding was scheduled to take place from 10am till 12pm, if at all.
However, soon after load shedding was ruled out as likely cause for a postponement, Eskom’s insistence on submitting a supplementary affidavit a month too late, without having applied for the necessary condonation, led to a hold-up in the court case.
The affidavit in question refers to conditions embodied in Newcastle municipality’s licence to supply electricity, which obliges the municipality to ring-fence the electricity reticulation business, according to Eskom’s legal representative, Advocate Sydwell Shangisa.
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Mr Shangisa explained that the affidavit “goes to the heart of the issues between the parties”, and attempted to persuade the court that the affidavit did not prejudice any of the parties involved in any way, and therefore did not need to be condoned for being late in order to be accepted.
Stressing the importance of this document to Eskom’s case, Mr Shangisa said:
“All the supplementary affidavit attempts to do is to put before court the licence of the municipality. It is a material document because so much hinges on the conditions set out in that licence.
“It is an objective piece of evidence which doesn’t belong to Eskom, which belongs to the municipality. We used a document that we sourced from the municipality. It is not controversial. One cannot conceive of any prejudice,” he stated.
Advocate Joseph Nxusani, representing Newcastle municipality, and Advocate Adrian Rall, representing the department of cooperative governance and traditional affairs, were in agreement that Eskom needed to make a formal application for condonation so that they may have the opportunity to object to the late submission of the affidavit.
Furthermore, Mr Nxusani felt that Eskom should be held liable for the “wasted costs” incurred by a postponement of the court proceedings, which may arise as a result.
Judge Bezuidenhout questioned why Eskom had not already applied for a condonation, considering that the other attorneys had given written notice of their objection to the late submission of the affidavit a week earlier.
“Your affidavit does not only consist of this licence. It is consisting of 17 pages where several allegations are made, not only related to the last argument. They are allegations to which the other parties may want to reply,” Judge Bezuidenhout told Mr Shangisa.
Advocate Laurence Combrink, who had applied for the condonation of a late submission on behalf of Lanxess (a Newcastle-based business specialising in chrome products), abandoned the application rather than create a delay in the court proceedings.
Combrink’s submission contained a resolution taken by the board of Lanxess to seek a judicial review should Eskom be allowed to switch off power to Newcastle, as well as an affidavit from the editor of the Mercury newspaper (which contained the notice of Eskom’s intention to disconnect the town), stating that only about 100 copies of a single edition were normally ever sold in the Newcastle area.
Mr Shangisa requested a five-minute adjournment to consult with Eskom as to whether he should persist in his efforts to submit the affidavit by putting in a formal application for condonation.
During the adjournment, a decision was taken in the judge’s chambers to postpone the matter to December 11.
Outside the court, Newcastle mayor Dr Nthuthuko Mahlaba admitted to feeling frustrated that the issue with Eskom had not yet been resolved.
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