(1)(a)(i) In terms of the Coal Supply Agreement, Optimum Coal Mine (Proprietary) Limited ("Optimum") was obliged to supply and deliver to the Hendrina power station coal which complies with, amongst others, the following quality specification:
(ii) The coal that was received by Eskom was within contractual specifications with regard to the Calorific Value but out of specification in respect of Abrasive Index and Sizing.
(iii) The coal currently being received by Eskom meets the contractual specifications with regard to the Calorific Value except for Abrasive Index.
(b) The price of coal paid by Eskom is R174.41/ton as at February 2016.
(2) The coal supplied by Optimum Coal prior to the imposition of the fine was outside the quality specification for Hendrina Power Station in terms of Abrasive Index and Sizing. For the 1 March 2012 to 31 May 2015, Optimum Coal, failed to supply and deliver to Eskom coal which meets the quality parameter as set out in the Coal Supply Agreement. The coal supplied and delivered to Eskom, amongst others, failed to comply with the sizing specification, in that 20% to 45% of the coal supplied and delivered to Eskom by Optimum on a monthly basis, during the period of supply was smaller than 0.81mm. Despite this failure by Optimum, Eskom has, without prejudice to its right in terms of clause 3.6 of the First Addendum, paid Optimum for such coal, without applying any adjustment or reduction to the payment, for Optimum's failure to comply with the quality parameters.
(3) The coal currently received by Hendrina Power Station is within the contractual specifications in respect of Calorific Value except for the Abrasive Index and the Sizing. Since Optimum is currently under business rescue, the parties have in terms of the interim agreement agreed to suspend the application of penalties until the business rescue process is finalised. Of critical importance to note is that Eskom has issued Summons against Optimum for failing to supply coal that meets the quality specification of the station. Optimum has since disputed the penalties. Once the business rescue process has been finalised, the legal proceedings will continue to run its course.
(4) High Abrasive Index causes high wear rate of the plant and sizing affects the material flow frequency causing hang-ups which results in load losses. The wear rate causes accelerated wear of parts. This negatively affects the energy output from the station thus the total energy capacity available for dispatch into the grid. In order to compensate Eskom for the capacity loss occasioned as a result of these quality parameters being out of specification, penalty provisions in terms of the contract apply.
(5) (a) Since Optimum is currently under business rescue, the parties have in terms of the interim agreement agreed to suspend the application of penalties until the business rescue process is finalized.
(b) No. Not applicable.