On 18 February 2026, the Gauteng Division of the High Court delivered a judgment in the case of Sibanye Gold (Pty) Ltd & Others vs. Eskom Holdings SOC Ltd and Another (2026/123) that will resonate far beyond mining boardrooms and lawyers’ offices.
It exposes, with judicial clarity, the ugly underbelly of a state-owned utility that has increasingly resorted to obstruction, bureaucracy and pretextual proceduralism to thwart legitimate efforts by customers to reduce reliance on Eskom supply through self-generation.
In doing so, the High Court laid bare what commentators have long suspected: Eskom’s conduct has been driven, at least in substantial part, by the fear of losing revenue and market control – not by genuine safety, regulatory or policy concerns.
This case – and the compelling findings of the Court – crystallise a pattern of anti-competitive conduct, bullying behaviour and resistance to structural reform that has plagued South Africa’s electricity sector and left consumers and investors alike wondering whether the utility views law as an obstacle or an opportunity.
A mining customer’s lawful transition obstructed
Sibanye Gold, one of South Africa’s largest mining companies, sought to implement a 50 MW self-generation renewable energy project designed to reduce its reliance on Eskom’s grid supply.
This was not a peripheral venture; it was a material investment that promised to improve energy security, reduce carbon footprint, reduce operational risk, and – crucially – lower long-term supply costs for the miner.
Under South African law and constitutional principles governing rights of way and servitudes, a landowner (including a customer such as Sibanye) is entitled to wayleave access across an Eskom servitude to connect generation or network assets, subject to reasonable conditions designed to protect safety and system integrity.
Eskom’s response was not to engage constructively.
Instead, it deployed its internal Wayleave Policy and application procedures as a de facto barrier regime, demanding technical documentation, safety studies, institutional approvals and a suite of escalating requirements that bore only a tenuous connection to genuine grid risk.
Sibanye’s legal submissions characterised Eskom’s approach as a bureaucratic maze, laden with shifting criteria and unsubstantiated demands that, in reality, served to delay and deter the project.
In its defence, Eskom invoked a series of generic rationales – safety, network integrity and compliance with internal guidelines – all couched in procedural language.
But the High Court was unimpressed.
The judge repeatedly probed Eskom’s evidence and found that the articulated grounds were unsubstantiated, inconsistent and disjointed from the actual network risks identified.
Instead of a coherent safety case, the Court found a pattern of regulatory gaming and pretextual delay.
What the Court found
Critically, the High Court did more than describe Eskom’s conduct as procedurally problematic.
It analysed Eskom’s motivation and the practical effect of its conduct on Sibanye’s lawful rights. In a stark finding, the Court observed that:
- Eskom’s internal policy requirements lacked clear statutory backing and had not been applied
consistently; - The technical and safety concerns raised by Eskom were not proportionate to demonstrable
network risk, and in some instances were unsupported by expert evidence; - The real concern underlying Eskom’s obstinacy was commercial – the potential loss of
electricity sales revenue if Sibanye reduced its grid offtake through self-generation.
In other words, the Court recognised what many industry observers have long suspected: that Eskom was using bureaucratic preconditions and procedural rigour as a shield to protect its commercial interests, not as a legitimate means of safeguarding network reliability or safety.
The judgment thus amounts to a rebuke not just of Eskom’s conduct in this specific context, but of a corporate culture that is comfortable weaponising policy and procedure to inhibit lawful competition and customer autonomy.
While full case excerpts cannot be reproduced here, key strands of the judgment can be summarised as follows:
- Misuse of policy as a barrier: The Court found that Eskom’s Wayleave Policy was used not principally to protect safety or reliability, but as a gatekeeping tool that imposed unreasonably high technical and procedural barriers that a large customer could only overcome at disproportionate time and cost.
- Inconsistent and opaque requirements: The Court observed that Eskom’s demands shifted over time and were not supported by a consistent evidentiary record of network risk. This suggested selective enforcement rather than principled application of technical standards.
- Commercial motive evident: Perhaps most strikingly, the Court noted that Eskom’s own witnesses and internal policies betrayed commercial considerations – particularly the prospect of lost load and corresponding revenue – as an unacknowledged driver of its obstructive stance.
- Failure of procedural fairness: The overall effect of Eskom’s conduct, as found by the Court, was to impose a flawed, unfair administrative process that denied Sibanye its lawful rights under property and regulatory law.
- The judgement is emphatic: A utility – even one as large and politically connected as Eskom – is not above the law and cannot cloak commercial resistance in procedural or policy language to thwart lawful economic activity.
Why this matters
The implications of the Sibanye vs. Eskom judgment are significant on multiple fronts.
Customer autonomy and energy transition
Large-end, small-electricity customers seeking self-generation or embedded generation are not fringe players; they account for material grid demand and are vital participants in South Africa’s unfolding energy transition.
The ability of customers to deploy generation assets, diversify risk and reduce grid offtake is both a commercial imperative and a policy priority.
Yet, if the dominant supplier – itself the core of the national grid – treats such initiatives as competitive threats to be obstructed, rather than opportunities to reduce systemic risk, the transition is inevitably slowed and distorted.
Legal constraints on state-owned monopolies
Eskom is not a private cartel; it is a state-owned enterprise operating within a constitutional and statutory framework that prioritises legality, fairness and non-discrimination.
The High Court’s forceful rebuke of Eskom’s conduct reinforces that no public entity is exempt from the rule of law, even when defending its commercial position.
Investor and market confidence
South Africa’s electricity sector is in the midst of structural reform – including the establishment of a competitive wholesale market, licenced trading, wheeling frameworks and third-party access.
Repeated instances of a dominant utility using procedural pretexts to delay or frustrate these reforms send chilling signals to investors and new entrants.
This raises legitimate questions about regulatory certainty and the ability of incumbents to align with marketplace transformation.
A broader pattern of anti-competitive conduct
The Sibanye decision joins a series of episodes in which Eskom has pursued litigation or regulatory obstruction in ways that appear more aligned with self-protection than system governance.
Examples include:
- Eskom’s review applications against NERSA’s granting of electricity trading licences.
- Introducing uncertainty in the emergence of a competitive trading environment.
- Assurances about reform are at odds with continued legal challenges behind closed doors.
- Arduous registration and compliance demands for residential solar PV and battery storage.
Together, these episodes portray an incumbent utility more comfortable in courtrooms than in competitive markets, and more interested in preserving sales volumes than aligning with national policy.
At a moment when the country desperately needs regulatory certainty, private capital, third-party access to public infrastructure, embedded generation growth and non-discriminatory network access, the High Court’s judgment is a stark reminder that legal compliance cannot be outsourced to internal policy manuals or procedural obfuscation.
The rule of law requires clarity, fairness and an empirical connection between cause and effect – not shifting bureaucratic sands.
The judgment also places Eskom – and other market participants – on notice that conduct perceived as anti-competitive and self-serving will be scrutinised not only in policy forums but in open court.
Eskom’s role in South Africa’s energy landscape is unique and immensely consequential. But privilege carries responsibility.
If Eskom continues to approach reform with a defensive, protectionist mindset – one that deploys wayleaves, applications and safety pretexts as tools of obstruction – it will not only lose before the courts, it will lose in the court of public confidence and in the market itself.
The Sibanye judgment is not merely a rebuke; it is an invitation to align with law, embrace competition and support a transition that is urgent, long overdue and essential for the country’s economic future.
South Africa cannot wait for clarity. The courts have provided some. Now it is time for practice to
follow principle.
