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High Court Dismisses Minister Mchunu's Application Over IPP Contract Dispute

Published March 24, 2024
2 months ago


In a recent turn of events, the South African High Court has dismissed an application submitted by the Minister of Water and Sanitation, Senzo Mchunu, targeting an independent power producer (IPP) at Clanwilliam Dam. The validity of the dispute centered on an alleged false testimony regarding the authority within the department.


Clackson Power, the IPP involved, operates a hydropower plant at the dam and was previously instructed by the Department of Water and Sanitation (DWS) to cease operations and evacuate. The department, seeking to undertake expansion work on the dam, sent termination notices to the company. However, Clackson Power challenged the department's capability to terminate the contract, citing lack of provisions for such action in the operating agreement.


The controversy deepened as the DWS, headed by Mchunu, claimed that an open-ended contract permitted termination given reasonable notice. The backdrop for this legal tussle stems from the DWS's plans to increase the dam's water yield, thereby supporting the Olifants River Irrigation Scheme and local impoverished farmers.


Amidst these events, Judge DC Joubert recognized a critical discrepancy involving Mr. Aloious Muwengwa Chaminuka, who represented the department in court affidavits, claiming to be the Director-General of the DWS. Clackson Power refuted this, indicating that the actual Director-General was Dr. Sean Philips and that Chaminuka was merely the Chief-Director: Engineering Services.


The revelation of Chaminuka's misrepresented position, which was unclarified and unratified, cast doubt on the lawful initiation of proceedings against Clackson Power. Consequently, the application was dismissed solely on this ground, with Joubert criticizing the absence of a rectification effort for the false testimony and considering this as grounds for an adverse special costs order.


This ruling stresses the importance of accurate representation and valid authority in legal undertakings. Missteps can hinder potentially significant developmental projects and lead to setbacks in service delivery, especially in sectors as vital as water and sanitation.



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