The Department of Water and Sanitation (DWS) suffered a major court blow when its case collapsed at the Western Cape High Court after it emerged that a senior official had misrepresented himself in litigation proceedings on behalf of the department.
DWS was rapped over the knuckles in litigation against an independent power producer (IPP) at Clanwilliam Dam when it emerged that the department’s chief of engineering services, Aloious Chaminuka, lied about his authority to institute legal proceedings against the power producer.
DWS Minister Senzo Mchunu’s attempt to seize Clackson Power’s operations at the dam failed in court when Acting Judge DC Joubert said “proceedings were not properly authorised” due to Chaminuka’s “false testimony”.
Consequently, Judge Joubert issued an adverse special costs order against the minister and said it was “neither necessary nor sensible to deal with the remaining issues raised in this case”.
Ministry spokesperson Kamogelo Mogotsi said the ministry welcomed the judgment and would not appeal the decision.
On whether action would be taken against the employee, Mogotsi said: “The department will engage Chaminuka when he comes back from leave before deciding on the next course of action.”
Attempts to reach Chaminuka for comment were unsuccessful by deadline.
Clackson Power attorney Corrie Janse van Vuuren said: “My client is obviously relieved on the outcome of an application that was flawed in many other ways than the first one which was dealt with by the Court in the Judgment.
My client however remains concerned with the agenda of DWS in respect of the illegal (without a valid Environmental Impact Assessment) construction work being conducted at the Clanwilliam Dam.”
In his founding affidavit as the deponent for Mchunu, Chaminuka stated that he is “an adult male Director-General of the Department of Water and Sanitation” and further that he was “duly authorised to depose to this affidavit and to institute the current application on behalf of the Department”.
“In Clackson’s answering affidavit, its deponent, Clack, denied that Chaminuka is the Director-General of the DWS, it being public knowledge that such position and appointment is actually held by Dr Sean Phillips. Clack further pointed out that it appeared from one of the documents annexed to the Minister’s own founding papers that Chaminuka is actually the ‘Chief-Director: Engineering Services’ which contradicts and disproves the statement made by him under oath,” court papers read.
Judge Joubert said: “It is surprising, to say the least, that there was no attempt at explaining the false evidence given in his founding affidavit relating to his designation nor the purpose and effect of the General Power of Attorney (GPOA)...Moreover, it is simply incorrect to deny, as he did in his replying affidavit, that he brought the proceedings on behalf of the Minister. As I have pointed out, he stated in his founding affidavit that he brought the proceedings on behalf of the DWS, but in the context he clearly made no distinction between the Minister and the DWS. He based his authority on the false statement that he is the Director-General of the DWS.”
Judge Joubert said the minister, whether wittingly or unwittingly, overlooked the distinction between the two types of authority in this matter where, in this case, was whether the person who instructed the legal practitioner had proper authority to give such instructions.
In his application to the courts, Mchunu sought for the seizing of Clackson Power’s operations and that they remove all assets and vacate the premises as the department embarked on a project to raise the dam wall by 13m which would increase the yield of the dam to augment the water supplies to the Olifants River Irrigation Scheme.
Clackson Power holds a 20-year National Energy Regulator of South Africa (Nersa) licence for the operation of power generation facilities for the hydropower plant and its clients which includes the Cederberg Local District Municipality.
The R4 billion Clanwilliam Dam project is one of the biggest government infrastructure investments in the Western Cape, and R400 million was allocated for the 2023/24 financial year to implement the project.
Cederberg Municipality mayor Ruben Richards said: “Cederberg Municipality takes note of the high court judgment, and shall assess the impact of the judgment on the municipality. It is important for us to secure all possible sources of energy given the challenges posed by load shedding and the pressure on the Eskom grid.”
Cape Times