- Court finds Eskom acted in bad faith and misapplied its own policies.
- Refusal of 50 MW behind the meter solar project declared unlawful and unconstitutional.
- Decision substituted with order compelling Eskom to grant wayleave and pay costs.
The Gauteng Division of the High Court of South Africa has set aside Eskom’s refusal to grant a wayleave for a 50 MW solar PV facility planned by Sibanye Gold Limited, ruling that the utility acted unlawfully and in bad faith.
In Sibanye Gold and Others v Eskom Holdings SOC and Others, delivered on 18 February 2026, Adams J reviewed and overturned Eskom’s decision to deny wayleave application WS171 2023. The court went further and substituted Eskom’s decision with an order compelling the utility to grant the wayleave.
The dispute relates to Sibanye’s plan to develop a 50 MW behind the meter solar PV plant in western Gauteng to supply electricity to its Kloof Mine. The project includes a six kilometre facility line connecting the plant to a section of the Kloof substation owned and operated by Sibanye. The line would cross Eskom’s 132 kV transmission lines located on land over which Eskom holds a servitude.
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As the proposed line would traverse Eskom’s servitude, Sibanye was required to obtain a wayleave to enter and conduct work within the servitude area. Eskom rejected the application in December 2023.
Sibanye challenged the refusal under the Promotion of Administrative Justice Act 3 of 2000 and the principle of legality, arguing that the decision constituted administrative action and was subject to judicial review.
The court agreed.
In a strongly worded judgment, Adams J found that Eskom’s refusal was based on ulterior purposes and motives and was taken in bad faith. The court held that Eskom committed material errors of law, including misinterpreting and misapplying the licensing exemption regime under Schedule 2 of the Electricity Regulation Act 4 of 2006.
The judgment further found that Eskom misapplied its own internal wayleave policies and relied on alleged operational concerns and safety risks that were unsubstantiated and unsupported by the information before it.
Of particular significance for the energy market, the court rejected Eskom’s attempt to use the wayleave process to impose a wheeling alternative on the applicants, describing the approach as irrational, unreasonable and unlawful.
In considering the appropriate remedy, the court held that a substitution order was just and equitable. It found that it was in as good a position as Eskom to make the decision and that the outcome was a foregone conclusion on the undisputed facts.
The court accordingly declared Eskom’s refusal unlawful and constitutionally invalid, reviewed and set it aside, and substituted it with a decision granting the wayleave.
Eskom was also ordered to pay Sibanye’s legal costs, including the costs of two counsel, one being Senior Counsel, on Scale C in terms of the Uniform Rules of Court.
The ruling reinforces the rights of large energy users to develop private generation capacity and provides important judicial guidance on the limits of administrative discretion in the processing of wayleave applications for embedded generation infrastructure.
Link to the full case HERE
Author: Bryan Groenendaal
