The Supreme Court of Appeal’s judgment in Eskom Holdings SOC Ltd v Botha and Others (1332/2024) [2026] ZASCA 48 (9 April 2026) provides a decisive and carefully reasoned answer to the question whether Eskom enjoys the procedural protections afforded to “certain organs of state” under the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (“the Act”).
Eskom contended that it qualified as an organ of state under the Act and was therefore entitled to receive the procedural protections afforded before being sued for damages, with specific reference to the prescribed statutory notice contained in Section 3 of the Act.
Section 3 of the Act prescribes that no legal proceedings for the recovery of a debt may be instituted against an organ of state unless the creditor has first served a written notice of intention to sue within six months from the date on which the debt became due. This prescribed statutory notice applies only to entities that qualify as organs of state under the Act.
The dispute had its origins in a damages action brought by the respondents, who alleged that fires caused by Eskom’s power lines in September 2018 resulted in damage to their properties. When summons was issued in August 2021, no section 3 notice had been served on Eskom. Eskom raised a special plea, asserting that it qualified as an organ of state as defined in the Act, read with section 239 of the Constitution, and that the respondents’ failure to give notice was fatal to their action.
Eskom advanced two principal arguments. Firstly, it argued that it fell within section 1(1)(c) of the Act as a functionary or institution performing functions “in terms of the Constitution”, relying heavily on its public mandate, and its status as a state‑owned company performing an essential public service. Secondly, Eskom contended that it qualified under section 1(1)(g) of the Act, arguing that the National Treasury, an organ of state, was liable for Eskom’s debts.
The Court approached Eskom’s submissions through a rigorous exercise of statutory interpretation, emphasising that the Act, by its very title, applies only to “certain” organs of state. The court stressed that section 1(1) of the Act was deliberately narrow, intentionally distinguishing the Act’s definition of an organ of state from the broader definition contained in the Constitution. While Eskom plainly qualifies as an organ of state for constitutional purposes, that was not the inquiry before the Court.
The Court reiterated the principle that legislation limiting the right of access to courts, as section 3 of the Act does, must be interpreted narrowly. The Act was designed to harmonise existing notice requirements applicable to a specific class of state institutions, not to introduce new procedural barriers where none previously existed, as with Eskom.
Eskom’s reliance on section 1(1)(g) fared no better. The Court examined the Eskom Debt Relief Act 7 of 2023, and the constitutional framework governing public finance. The Court rejected the notion that the National Treasury’s financial support meant Eskom’s debts were effectively debts of the state, entitling it to the procedural protection afforded by the Act, and concluded that financial support does not equate to legal liability.
The Court ultimately concluded that Eskom does not qualify as an organ of state for purposes of the Act and is therefore not entitled to statutory notice before legal proceedings are instituted against it. The appeal was dismissed with costs.
In clear and uncompromising terms, the Court reaffirmed that state ownership and public importance do not confer procedural protection under the Act. The judgment brings long‑needed clarity and confirms that Eskom must meet claims on their merits rather than relying on procedural shields and special pleas.
