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 dismissing a case brought by the Coal Transporters Forum (CTF) to set aside power purchase agreements (PPA’s) with preferred bidders.
CTF had argued that the court should declare null and void all Round 4 PPA’s signed by Eskom with Independent Power Producers (IPPs) at the time because it claimed that the National Energy Regulator of SA (NERSA) had not properly approved the section 34 authorisation which was a pre-requisite for the IPP process.
Secondly, CTF sought to interdict the conclusion by Eskom of the then pending PPAs with 3 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.
SAWEA CEO Ntombifuthi Ntuli welcomed this final judgement issued by the Supreme Court of Appeal, handed down on 30 January 2020. “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 PPA’s.
“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.