SCA clears way for farmers’ lawsuit against Eskom over fire damage claims
DL
Dimakatso Leshoro
13 April 2026 | 12:14This after the power utility’s failed attempt to stop the lawsuit at the Supreme Court of Appeal, recently.
FILE: Eskom's Megawatt Park in Johannesburg. Picture: Eyewitness News
Eskom is facing damages claim by Free State farmers over fires allegedly caused by power lines.
This after the power utility’s failed attempt to stop the lawsuit at the Supreme Court of Appeal, recently.
Eskom has been slapped with the costs of the application.
At the heart of the SCA ruling is a key legal finding, that is Eskom cannot rely on protections reserved for organs of state under the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002.
This means it is not entitled to prior notice before being sued for damages.
The case stems from fires in September 2018, which the farmers say destroyed their properties due to Eskom’s negligence. They instituted legal action in 2021 without serving the statutory notice typically required when suing a state body.
Eskom argued that, as a state-owned entity performing public functions, it qualifies as an organ of state and should benefit from that notice requirement.
While a full bench of the High Court previously agreed that Eskom meets the broader constitutional definition, the SCA found this does not extend to the specific protections in the Act.
The court held that entities operating under statute, like Eskom, do not fall within the Act’s definition for purposes of mandatory notice.
It also rejected Eskom’s argument that liability could shift to the National Treasury, finding no legal basis for the state to assume Eskom’s debts.
"The judgment clarification that individuals seeking compensation for damages arising from Eskom’s negligence could be directed to pursue such claims against Eskom or National Treasury is material,” said Independent Energy Analyst Nhlanhla Gumede.
“The fact that National Treasury has at times provided funding to Eskom does not, without a law, mean that National Treasury assumes responsibility for Eskom’s debt.”
“National Treasury may nonetheless have an interest in financial risk associated with possible default by state-owned companies to the extent that such default could have broader fiscal implications. In such, the state has provided explicit guarantees, including in special programs,” Gumede added.
The ruling removes a significant procedural defence and confirms that Eskom can be sued for damages without advance warning, allowing the farmers’ claim to move forward.
