A false testimony has resulted in the dismissal of a high court application by Minister of Water and Sanitation Senzo Mchunu to stop the operations of an independent power producer (IPP) at Clanwilliam Dam.
Also read: Plans to heighten Clanwilliam dam wall go ahead
Two years ago, The Department of Water and Sanitation (DWS) sent a letter to Clackson Power, the IPP currently operating the hydropower plant at the dam. The department stated that it was terminating its agreement with Clackson Power, effective from 20 February 2022.
It sent follow-up letters to the company on 13 September 2022, in which it requested Clackson Power to cease operations and remove all the machinery from the site within 14 days.
The reason for the termination was due to remedial work that the department wanted to conduct at the dam. According to Moneyweb, the DWS aimed to raise the dam wall by 13 metres to increase its yield by about 70 million cubic metres per year. This was supposed to augment water supplies to the Olifants River Irrigation Scheme and enhance resources for poor farmers.
However, in a letter dated 19 September 2022, Clackson Power responded by denying the department’s competence to terminate its operating agreement and refusing to cease operations.
Moneyweb reports that the operating agreement lacked any provisions regarding termination. However, Mchunu argued that since it was an open-ended contract, the termination terms needed interpretation to determine the parties’ intentions.
He added that the agreement did not suggest the parties wanted it to last forever. He believed that interpreting it properly would mean adding a term stating it could be ended with reasonable notice by either party.
According to Mchunu, proper notice was given, so the agreement was rightfully ended, and, as the property owner, the DWS has the right to demand Clackson Power to stop operations and leave the property.
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In response, Clackson Power opposed the application, stating that Mchunu’s deponent ‘lacks the necessary authority to bring this application or depose the affidavit on behalf of the applicant [Mchunu]’.
It added that it had:
- A Nersa licence which is valid until March 2028
- That the company had the right to occupy the property based on an ‘agreement of servitude’ dated 31 March 1998, the contract of sale between it and the municipality dated 27 February 1998, the PPA dated 8 December 2011, and the operating agreement dated 17 April 2001
- That ‘an arrangement’ has been made to ensure that the DWS’s construction works will be done in a way that allows Clackson Power to continue its business with minimal disruption
- That the DWS’s planned construction is unlawful
On Wednesday, Judge DC Joubert focused solely on the authority of the minister’s deponent, Aloious Muwengwa Chaminuka.
Joubert noted that in his affidavit, Chaminuka claimed to be ‘an adult male Director-General of the Department of Water and Sanitation’, who was ‘duly authorised to depose to this affidavit and to institute the current application on behalf of the department’.
Joubert pointed out that Clackson Power denied that Chaminuka was the director-general of the DWS. Instead, the position is held by Dr Sean Philips.
He also noted that Clackson Power highlighted from one of the documents attached to Mchunu’s founding papers that Chaminuka is identified as the ‘Chief-Director: Engineering Services’.
This contradicts and undermines Chaminuka’s statement under oath in his founding papers, indicating that he may not have had the authority to represent the Minister or depose to the affidavit.
‘It is surprising, to say the least,’ he said, adding that there was no attempt to clarify the purpose and effect of the general power of attorney, nor any effort to ratify Chaminuka’s actions by an authorised official.
Furthermore, it was deemed incorrect for Chaminuka to deny, as he did in his replying affidavit, that he initiated the proceedings on behalf of Mchunu.
‘He based his authority on the false statement that he is the Director-General of the DWS,’ Joubert said. ‘When it appears so clearly from the papers, including the applicant’s [DWS] own papers, that the proceedings were not properly authorised, as it does in this matter, the application should be dismissed on that basis, and I do so.
‘It is accordingly neither necessary nor sensible to deal with the remaining issues raised in this case.’
According to Joubert, Chaminuka falsely testified that he was the Director-General of the DWS. ‘When this was challenged by Clackson Power in its answering papers, one would have expected not only an explanation for the false evidence but also an apology, together with an attempt to rectify the problem by way of ratification of the proceedings by an authorised official.
‘None of that was forthcoming, and instead, the Minister’s deponent [Chaminuka] simply changed tack by contending that the proceedings were instituted by the State Attorney on behalf of the Minister [Mchunu].
‘In my view, this is the kind of conduct in litigating a matter that is deserving of an adverse special costs order.’
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Picture: Department of Water and Sanitation
