South Africa powerline erection case sees temporary victory for landowners

The dispute revolves around an application for an interim interdict – a temporary court order – to halt actions by Eskom Holdings SOC Ltd. (Eskom) and the National Transmission Company of South Africa (NTCSA), pending a broader review of the process that authorised the project

The case pits private property rights against the state’s push to expand the nation’s electricity infrastructure, raising thorny questions about due process, public participation, and the balance between individual and national interests.

The dispute erupted when the landowner, a private company, stumbled upon a meeting organised by Eskom concerning the construction of transmission lines over two properties: Portion 7 and Portion 46 of Farm Geelhoutboom No. 217 in George, Western Cape. The landowners claim they were blindsided, alleging they were never properly notified of the plans despite legal requirements mandating their involvement. What began as an unexpected discovery has snowballed into a two-part legal challenge: Part A seeks an immediate freeze on Eskom’s actions, while Part B aims to overturn the environmental authorisations granted for the project.

The roots of this case stretch back to 2015, when Eskom first set out to bolster the country’s strained electricity grid by constructing two new transmission lines in the Southern Cape. The "short line" would connect Mossel Bay’s Gourikwa substation to George’s Blanco substation, while the "long line" would extend from Blanco to Beaufort West’s Droërivier substation. Environmental investigations kicked off that year, but the initial process lapsed in December 2016, forcing Eskom to restart in January 2017.

By November 2017, the Department of Forestry, Fisheries, and the Environment – the competent authority – granted Eskom environmental authorisations (EAs) for both lines. These approvals allowed overhead transmission lines to be built across a slew of properties, including those owned by the applicants in this case. Fast forward to August 2022, and the EA’s validity was extended to a decade, locking in Eskom’s plans. However, the landowners claim they only learned of these developments in 2024 – years years after the initial application and approval was granted – when Eskom consultant Mr Grunewald approached them to negotiate servitudes, or rights to use their land, and conduct property evaluations for the Gourikwa-Blanco line.

After failed attempts to get Eskom to pause its alleged expropriation efforts – expropriation efforts that Eskom denied – the landowners launched an urgent application arguing that the lack of proper notification during the public participation process renders the entire project unlawful, and that their property rights are threatened with expropriation.

The landowners’ grievance hinges on the public participation process, a legally mandated step under the National Environmental Management Act (NEMA) to ensure affected parties are consulted before environmentally impactful decisions are made. They assert they received no notices about the investigations that began in 2015 or restarted in 2017, despite being directly impacted. It was argued that even the letter allegedly sent to one landowner did not meet the legally required standards, while the second landowner received nothing at all.

This alleged failure was argued to have tainted the EAs granted in 2017 and opened the door to an illegal process. When Grunewald began negotiating servitudes in 2024 on behalf of Eskom, the landowners saw it as the first step toward expropriation. They point to the Electricity Regulation Act, which outlines a process where failed negotiations can lead to the state expropriating land in the public interest. Halting these talks via an interim interdict is critical to protect the landowners’ rights until the review in Part B can determine if the EAs were lawfully issued.

Mr. Govender from Envirolutions, Eskom’s environmental consultant, insists notices were sent, citing a registered letter to the first landowner in 2015. Grunewald, meanwhile, denies his role involves expropriation, claiming he’s merely negotiating servitudes, not wielding the heavy hand of state seizure. Eskom argued that the landowners’ fears are overblown, and that no expropriation process has been triggered under the Expropriation Act.

Eskom argued that the landowners have not met the legal test for an interim interdict: they lack a clear right, face no imminent harm, and have delayed too long to act. In addition, the public’s need for reliable electricity outweighs the landowners’ concerns, especially given South Africa’s ongoing energy crisis. An expedited review, Eskom suggests, could resolve the matter without freezing the project.

The court, tasked only with deciding Part A, weighed whether the landowners met the four requirements for an interim interdict: a prima facie right, a reasonable fear of irreparable harm, a balance of convenience favouring them, and no adequate alternative remedy.

On the first point, the judge found the landowners’ property rights undeniable. As landowners, they were entitled to proper notice under the NEMA – a right they claim was breached. The court did not delve into whether proper notices were sent as this would be decided in Part B, but ruled the landowners had a strong enough case to proceed.

The landowners argued that ongoing negotiations could lead to expropriation, a risk the court found plausible given the Electricity Regulation Act’s framework. Without an interdict, they would be forced into a process they deem illegitimate, potentially losing land rights irreparably.

The balance of convenience tipped toward the landowners. While Eskom’s mission to bolster the grid is vital—especially amid South Africa’s loadshedding woes—the court saw no evidence that pausing negotiations would derail the project or endanger the public especially since the project had been in the pipeline since 2015 and had even lapsed at one point. The landowners, however, faced a clear threat to their constitutional property rights, with no alternative means to mitigate it.

Finally, the court rejected Eskom’s call for an expedited review as too simplistic. Monetary damages could not undo the harm of a flawed process, leaving the interdict as the only viable safeguard.

The court granted the interim interdict. Eskom and the NTCSA are barred from advancing the expropriation process over Portions 7 and 46 of Farm Geelhoutboom until Part B of the dispute is resolved. Eskom were also ordered to cover the landowners’ legal costs, signaling the court’s view of the case’s merits.

This ruling is a temporary victory for the landowners, preserving the status quo until the review application tackles the core issue - whether Eskom and its consultants followed NEMA’s prescribed process. If Part B finds the public participation process was indeed flawed, the EAs could be overturned, forcing Eskom back to the drawing board. For now, the case underscores a broader tension in South Africa: balancing infrastructure needs with the sanctity of individual property rights.