On February 18, the Gauteng Division of the High Court delivered judgment in Sibanye-Stillwater & Others vs Eskom Holdings SOC Ltd and Another (2026/123) – a decision likely to resonate well beyond mining boardrooms and legal circles says Chris Yelland, MD of EE Business Intelligence.
The ruling highlights concerns about the conduct of a state-owned utility that, according to the court’s findings, has relied on procedural and administrative mechanisms in ways that hinder customers seeking to reduce reliance on Eskom supply through self-generation. In doing so, the judgment raises questions about whether certain actions were motivated by legitimate technical considerations or by concerns about revenue loss and market position.
This case, and the court’s findings, bring into sharper focus longstanding debates about competition, reform and customer autonomy within South Africa’s electricity sector.
A mining customer’s lawful transition obstructed
Sibanye-Stillwater sought to implement a 50 MW self-generation renewable energy project aimed at improving energy security, lowering long-term costs and reducing reliance on grid supply.
Under South African law governing servitudes and rights of way, customers may obtain access across Eskom servitudes to connect generation or network assets, subject to reasonable safety and system integrity requirements.
According to submissions before the court, Eskom’s response centred on extensive procedural requirements under its internal Wayleave Policy. Sibanye argued these requirements evolved into a complex administrative process that delayed progress through escalating technical and institutional demands.
Eskom cited safety, network integrity and compliance considerations. However, the court found the evidence presented did not consistently demonstrate proportional network risk, suggesting a disconnect between procedural requirements and technical justification.
Commercial motive under scrutiny
The judgment went further by examining the underlying motivations for Eskom’s actions. The court’s observations included:
- Internal policy requirements lacked clear statutory grounding and were inconsistently applied.
- Certain technical concerns were not supported by expert evidence.
- Commercial considerations, including potential loss of electricity sales, appeared to influence Eskom’s approach.
The court therefore viewed the procedural framework as having the effect (whether intended or not) of creating barriers to lawful competition and customer self-generation.
Key themes emerging from the judgment
Although detailed excerpts cannot be reproduced here, several themes emerge:
- Policy as a barrier: The Wayleave Policy was applied in a manner that imposed significant procedural hurdles, extending timelines and increasing project costs.
- Inconsistent application: Requirements shifted over time without a clear evidentiary link to evolving network risks.
- Commercial drivers: The judgment suggested that concerns over lost load and revenue may have shaped Eskom’s position.
- Procedural fairness: The cumulative effect was an administrative process the court found to be flawed and inconsistent with principles of fairness.
The ruling reinforces that state-owned utilities must operate within constitutional and statutory limits, and that internal policy cannot override lawful economic activity.
Implications for market reform and customer autonomy
The Sibanye decision carries broader implications for South Africa’s evolving electricity market. Large customers pursuing embedded generation and wheeling arrangements play a growing role in the country’s transition, and procedural barriers that delay these initiatives may affect market development and system resilience.
As a state-owned enterprise, Eskom remains subject to administrative justice principles requiring fairness, consistency and transparency. At the same time, with structural reforms underway (including licensed trading, wheeling frameworks and preparations for a competitive wholesale market), legal disputes of this nature highlight ongoing tensions between incumbent structures and market liberalisation. The judgment also sits alongside other episodes that have raised questions about Eskom’s role in an increasingly competitive environment, including litigation around trading licences and evolving requirements for distributed generation.
At a time when regulatory certainty and private investment are central to electricity sector reform, the ruling underscores the importance of clear, proportionate and evidence-based regulatory processes. Market participants require predictable pathways for grid access and project development, particularly as embedded generation expands. The decision signals that conduct perceived as anti-competitive or procedurally unjustified will continue to face legal scrutiny.
Eskom’s position within South Africa’s electricity landscape remains pivotal. However, the transition towards a more open and competitive market requires alignment between policy intent and operational practice. The Sibanye judgment serves as a rebuke and a reminder: procedural frameworks must enable lawful participation in the market rather than impede it. As reform accelerates, the balance between system governance, commercial sustainability and customer autonomy will remain a defining challenge for the sector.
