The Expropriation Act has become central in a legal battle between two Western Cape farmers and Eskom over a project to erect power lines in George.
The farm owners, Platinum Mile Investments and trustees of the Armstrong Flora Trust, lodged an application last year against Eskom’s plans to put up transmission lines on their land.
The court battle is separated into two parts. The first plea was for the court to grant an interim interdict against Eskom from undertaking a negotiation process with them pending the main legal review application challenging the power utility’s plan to install the power lines on their farms.
Eskom initiated the plan to build two new transmission power lines in the Southern Cape in 2015. This was to address power constraints experienced on the network supplying Mossel Bay, Garden Route District Municipality and George area.
The project plans, however, were hampered in 2024 as the farm owners approached the court accusing Eskom of not following lawful processes in the public participation process for the project.
The two owners contended they were not consulted during environmental impact investigations for the project.
They asked the court to “immediately prohibit [Eskom] from taking any further steps in the process of expropriation under way or envisaged by it”.
“According to the [farm owners], there is a risk that their properties may be appropriated if the negotiation phase is not halted,” court papers read.
The negotiations are for Eskom to have the legal right to construct electrical power lines on their land. Eskom, however, disputed this saying legal provisions for expropriation were not triggered in the project.
The farm owners contend that if in the negotiation phase they do not agree with Eskom, the power utility’s next “obvious step is expropriation”.
The disputed provision is that of the Expropriation Act of 1975. The legal challenge was initiated before President Cyril Ramaphosa repealed the act with one that sets out how organs of the state may expropriate land in the public interest.
“If the negotiations fail, Eskom reserves the rights in terms of section 9 (1) (a) of the Expropriation Act, Act 63 of 1975,” the court papers read.
The Electricity Regulation Act provisions allow Eskom to undertake a process to expropriate land, through the Expropriation Act, if an agreement with the owner is not reached but it has conditions including that the minister of minerals and energy must prescribe the procedure to be followed.
Eskom told the court it had not acted on the provisions of the Expropriation Act in the project.
“The applicants [farm owners] have failed to produce any evidence in support of the allegation that the laying of overhead transmission lines over ‘extremely valuable farming properties’ will cause harm to the farm or the farming operations,” Eskom argued.
The transmission lines have been in the pipeline for many years. Eskom said that should the court grant the interdict, it would undermine the efforts to build “much-needed electricity capacity in the region and the country”.
The department of forestry, fisheries and the environment had granted Eskom environmental authority in 2017 permitting it to erect the power lines.
The farm owners contend there were shortcomings in the process because they were not notified to submit comments on the project. Eskom disputed this in court.
Last Thursday, Western Cape high court judge Noluthando Nziweni ruled in favour of the farm owners and ordered Eskom to halt the negotiations pending the main review court challenge.
“The [farm owners] allege that they were not part of the public participation process. If the negotiations continue and they lead to the application of regulation 2 [expropriation] before the finalisation of the review; in the circumstances, the harm to [farm owners] cannot be said to be speculative. This would lead to irreversible harm,” Nziweni said.
She said the case by farm owners involved property rights, which are guaranteed in the constitution, and the court had to prioritise that in its ruling. She acknowledged the importance of Eskom’s project saying, “The relevant project demonstrates how Eskom is working tirelessly to avoid more future crises.”
However, Nziweni said there was no evidence before the court to prove that if the court granted a stay of the negotiations, the public would be at risk.
“Pending the finalisation of the review application, [Eskom and the National Transmission Company] are prohibited from taking any step in the process of expropriation under way or envisaged by it,” Nziweni ordered.
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