- Judge S Potterill found that Momentous Energy failed to identify the decisions it wanted reviewed properly and did not cite the relevant decision-makers.
- The court found that the review lacked a proper legal basis and was used to pressure Welverdiend BESS into accepting a commercial agreement involving a proposed R5 million payment and additional fees.
- The court ordered Momentous Energy to pay the costs of both applications, including the costs of two counsel on Scale C.
An energy company has been ordered to pay legal costs after the High Court in Pretoria found that its challenge to environmental approvals for a rival renewable energy project was seriously flawed and pursued for an ulterior purpose.
In a judgment handed down on 15 October 2026, Judge S Potterill found that Momentous Energy’s review application was an abuse of court process. The case concerned approvals for a battery energy storage project developed by Welverdiend BESS, with Mulilo Renewable Project Developments involved in the project.
Dispute over battery storage project
Welverdiend was awarded preferred bidder status on 18 December 2024 under the Department of Electricity and Energy’s Battery Energy Storage Independent Power Producer Power Programme Bid Window 2.
The project connects to the Carmel Main Transmission Substation in Gauteng and was designated a Strategic Infrastructure Project because it is intended to help stabilise the national electricity grid and enable renewable energy to feed into the grid. Momentous Energy was an unsuccessful bidder.
The Department of Forestry, Fisheries and the Environment issued an environmental authorisation in May 2024, initially in Mulilo’s name, before it was amended to identify Welverdiend as the holder. A separate environmental authorisation for the refurbishment of an existing Eskom 132kV powerline was issued by the Gauteng Department of Agricultural and Rural Development in November 2025.
Momentous sought to review the approval of the powerline and associated infrastructure connecting the battery storage project to the Carmel substation in the Merafong Local Municipality.
Court identifies serious flaws in review
Judge Potterill found that Momentous had failed to identify the decisions it wanted the court to review, including their dates and reference numbers. The relevant decision-makers were also not properly cited as parties.
In September 2026, Momentous amended its notice of motion to add the Gauteng provincial environmental department as a respondent. Welverdiend challenged the amendment, arguing that Momentous needed to bring a separate application to join the department and explain why its decision should be reviewed.
The judge agreed that the amendment could not remedy these defects. Rule 53(4) of the Uniform Rules of Court could not be used to join a party to review proceedings.
Momentous also failed to cite the relevant executive authorities under the State Liability Act. Judge Potterill found that simply citing a government department was insufficient and that the service requirements had not been met. “The simple answer to this is yes,” the judge said when considering whether the review application was fatally flawed.
The judge concluded that the procedural defects prevented the application from properly challenging the environmental approvals.
Challenge lacked a proper legal basis
The court also considered whether Momentous had grounds to challenge the powerline approval. Momentous argued that the environmental authorisation affected its rights. It initially relied on real rights in the properties concerned before advancing an argument based on contractual option rights.
Welverdiend disputed the existence of enforceable rights supporting the challenge, arguing that the relevant agreements had not been signed by the registered owners of the properties.
Judge Potterill found that the arguments did not support Momentous’ case. The judge also noted that Momentous had previously appealed against the provincial environmental authorisation, but its appeal had been dismissed.
The review papers did not properly set out the environmental authorisations at issue or establish a recognisable legal basis for the challenge. The judge found no bona fide ground for reviewing the powerline approval.
Proposed payment arrangement raised concerns
The court examined negotiations between the companies that took place from August 2025 to May 2026 over a proposed share purchase agreement.
Under the proposed arrangement, Welverdiend would pay Momentous R5 million for its Highveld battery energy storage project, together with a success fee of R350,000 for each megawatt of electricity commercialised from that project.
In return, Momentous would undertake not to oppose, appeal, review or otherwise interfere with the regulatory approvals and development activities required for Welverdiend’s project to reach financial close.
Welverdiend argued that the negotiations and subsequent legal proceedings amounted to coercion.
Judge Potterill found that the sequence of events supported the conclusion that the proceedings were initiated when Welverdiend was unwilling to sign the proposed agreement. The judge noted that Momentous enquired about the proposal on 7 September 2026 and appealed against the amended environmental authorisation on 11 September, after it became apparent that it would not receive the proposed payment.
The judge concluded that Momentous was using litigation to pressure Welverdiend into accepting the commercial arrangement. “I am satisfied that Momentous is using the procedures permitted by the rules of Court for a purpose extraneous to facilitating the pursuit of truth,” Judge Potterill said.
Energy company ordered to pay legal costs
The judge acknowledged that dismissing a review application at this stage is an exceptional measure because it restricts a litigant’s constitutional right of access to the courts. However, the High Court has the power to regulate its own proceedings and prevent abusive or vexatious litigation.
Judge Potterill found that the serious procedural defects, lack of a proper legal basis and ulterior purpose justified intervention.
The court declared the matter urgent, struck out Momentous Energy’s review application and ordered the company to pay the costs of both the urgent application and the review proceedings, including the costs of two counsel on Scale C.
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