News24 | Chris Yelland | Eskom’s double talk on trading licences is treacherous

After creating the impression of backing down publicly, Eskom is quietly pressing ahead with damaging legal action against power trading licences, writes Chris Yelland.

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For months, South Africans have been told that Eskom has “paused” or “stayed” its legal challenge against the National Energy Regulator of South Africa (Nersa) over the granting of electricity trading licences to five private electricity traders.

READ | Chris Yelland | Eskom’s legal move against power traders is dangerous and desperate

The message, conveyed publicly by Eskom’s leadership on 30 September 2025 and welcomed implicitly by policymakers, was meant to signal restraint, cooperation and a commitment to legislative and regulatory reform processes rather than litigation.

But court records now tell a very different story.

A directive issued by the Gauteng High Court on 31 October 2025 states, in plain and unambiguous language, that Eskom has since confirmed to the court that it is proceeding with its review application.

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Far from the matter being put on ice pending the finalisation of electricity trading rules by Nersa, the directive records active procedural steps: responses to interlocutory notices, the preparation of confidentiality agreements, and the imminent production of the Rule 53 record by Nersa.

This contradiction raises uncomfortable questions – not only about Eskom’s litigation strategy, but about transparency, governance and trust – at a moment when South Africa’s electricity sector is meant to be moving decisively towards reform and competition.

Background

In 2024 and early 2025, Nersa granted electricity trading licences to five companies: CBI-electric Apollo, Discovery Green, Green Electron Market, GreenCo Power Services and NOA Group Trading.

These licences were a logical progression in South Africa’s evolving electricity market framework in terms of the Electricity Regulation Amendment Act, 2024, intended to enable greater competition, wheeling and trading as the system moves away from a vertically integrated monopoly.

Eskom Distribution objected. In mid-2025, Eskom launched a High Court review application challenging Nersa’s decision. The grounds were technical and legal – stated as procedural and substantive flaws in the regulator’s licensing process – but the implications were profoundly political and self-serving.

The case was widely seen as a test of whether Eskom, even in an unbundled environment, was prepared to tolerate genuine market competition.

Minister intervenes – repeatedly

Energy and Electricity Minister Kgosientsho Ramokgopa intervened publicly and repeatedly. In August 2025, he urged Eskom to withdraw or at least stay its litigation, arguing that Nersa was fast-tracking the development of electricity trading rules and that parallel court action risked undermining confidence in the regulatory process.

The minister’s message was clear: policy reform should not be strangled by litigation. Eskom was encouraged to engage constructively in the expedited rule-making process for electricity trading rather than fighting the regulator in court.

This position was entirely consistent with the government’s stated commitment to electricity market reform, the creation of a competitive trading environment, and the reduction of Eskom’s dominance over the sector.

Eskom’s public narrative

Against this backdrop, during Eskom’s 2025 financial results presentation on 30 September 2025, CEO Dan Marokane announced that Eskom had placed a “stay” on its review application to allow Nersa’s process on the development of trading rules to proceed and for Eskom to engage as a participant in that process.

READ | Chris Yelland | Eskom’s war on competition is a wake-up call for the sleepy Competition Commission

Media reports described Eskom as having “halted” or “paused” its legal challenge, framing the move as a response to the minister’s urging as well as a gesture of good faith toward Nersa’s expedited regulatory processes.

For observers, the message was reassuring. Eskom, it seemed, was stepping back from confrontation. The traders could proceed. The regulator could finalise trading rules. Reform could move forward without a looming court battle.

Except that this is not what was happening at all.

What a ‘stay’ actually means

In South African law, a stay of proceedings is not a rhetorical flourish. It is a specific procedural status. A genuine stay requires either a court order or, at the very least, a clear agreement between the parties that the matter is held in abeyance, with no further procedural steps taken.

Crucially, a stayed matter does not progress. Deadlines pause. Rule 53 records are not produced. Interlocutory skirmishes are put on hold.

But none of that happened here.

The court record: proceeding, not pausing

The High Court directive on 31 October 2025 could not be clearer. Following a case-management meeting in chambers, the judge recorded that: “Eskom Holdings SOC Limited (Eskom) confirms that it is proceeding with its review application.”

This is not casual language. It reflects a representation made to a judge, in a formal judicial setting, with legal consequences.

The directive then sets out a timetable for active litigation: Eskom must respond to a Rule 7(1) notice; the respondents must draft confidentiality agreements; and Nersa must prepare to deliver the Rule 53 records once the agreements are signed.

These are the hallmarks of a case moving forward – not one that has been stayed.

Duplicity problem: Two audiences, two messages

This is where the credibility issue becomes acute:

• To the media and the public, Eskom said the case was paused.
• To the minister, it signalled compliance with calls for restraint.
• To the court, it said the exact opposite.

When asked to comment on this article and the apparent duplicity, Eskom responded by blaming the trader respondents for the fact that there is no stay in the legal proceedings underway.

“The new trader parties were requested to agree that the application remains stayed, but denied the request and insisted that Eskom proceeds with or abandon its application”, it said.

“Eskom was placed on terms to either progress or abandon its application by several of the ‘new’ traders who were issued with trading licences, before the new rules are in place,” the utility said.

However, when approached for their response, one of the trader respondents categorically denied that it had ever been approached by Eskom seeking a stay in the matter, and that the record shows that the court had also never been approached by Eskom requesting a stay.

The decision to proceed with the review application was made by Eskom, the trader respondent said.

Another trader respondent indicated that: “Certain elements of Eskom’s response are factually incorrect or materially incomplete. It would not be appropriate for us to engage on those issues prior to completing the required governance and legal processes.”

Impact

More troubling still is the implicit threat of prolonged and obstructive litigation should Eskom fail to secure its own preferred outcomes in the development of the electricity trading rules now underway by the regulator, with public hearings scheduled for 27 January.

This looming legal overhang is damaging for electricity market reform and deeply prejudicial to the business of licensed electricity traders. The uncertainty created is already negatively impacting billions of rands of investment decisions, financial closure of projects, and the conclusion of power purchase agreements with IPP generators and off-takers.

Malicious compliance

Whoever is to blame for the absence of a stay, one cannot escape the conclusion that Eskom has been speaking with two voices: one calibrated for media, public and political consumption; the other reserved for the courtroom.

This disconnect is not a minor communications lapse. It goes to the heart of institutional trust and the efficacy and timing of the reform agenda.

Eskom is not an ordinary litigant. It is a state-owned company, central to the economy, operating within a constitutional framework that demands openness and accountability – a company that ought to be aligned with national energy policy.

When such an entity creates the impression of backing down publicly and supporting the minister’s urgings, while quietly pressing ahead with a damaging legal action serving its own business interests, it points to a degree of “malicious compliance” that undermines confidence not only in Eskom itself, but in the broader reform agenda.

Chris Yelland is the managing director of EE Business Intelligence.

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