IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
In the matter between:
THE MINISTER OF WATER AND SANITATION
and
CLACKSON POWER (PTY) LTD
CEDERBERG LOCAL MUNICIPALITY
Date of hearing: 7 February 2024
Date of judgment: 20 March 2024
REPORTABLE
CASE NO: 4438/2023
Applicant
First Respondent
Second Respondent
JUDGMENT HANDED DOWN ELECTRONICALLY ON 20 MARCH 2024
BACKGROUND FACTS
1. In this opposed motion, the Minister of Water and Sanitation ("the
Minister") cited in his official capacity as "the Minister charged with the
administration and implementation of the National Water Act, 36 of
1998 ("the NWA")", seeks the following relief:
2
1.1 That the first respondent ("Clackson") be ordered to stop
operating the hydro-power plant at Clanwilliam Dam, Western
Cape;
1.2 That Clackson be ordered to remove all its assets and to vacate
the premises at the Clanwilliam Dam;
1.3 That Clackson complies with the orders in paragraphs 1.1 and
1.2 above within 30 days of the court order;
1.4 That Clackson be liable for the costs of this application on an
attorney and client scale.
2. Clackson is an independent power producer. It holds a NERSA
(National Energy Regulations of South Africa) licence for the operation
of power generation facilities in terms of which it operates, inter alia, a
hydro-power plant at the Clanwilliam Dam ("the dam") and supplies
electricity to its clients, which include the second respondent ("the
Municipality"). The licence is valid for 20 years, until approximately the
end of March 2028.
3. Clackson purchased the hydro-power plant from the Municipality in
May 1998, with which it then concluded a Power Purchase Agreement
("the PPA") in terms of which it would sell all power generated from the
power station to the Municipality.
4. The generation of power by the hydro power plant is made possible by
permanent water releases from the dam, which is under the control of
3
the Department of Water and Sanitation ("the DWS"). On 17 April 2001
Clackson concluded an Operations Agreement ("the OA") with the
DWS to operate the hydro-power plant, in terms of which, inter alia,
Clackson would only use water released from the dam down to the
Bulshoek Dam to drive the power station turbine.
5. The DWS has approved and embarked upon a project to raise the dam
wall by 13m which would increase the yield of the dam by about 70
million cubic meters per annum. This is needed to augment the water
supplies to the Olifants River Irrigation Scheme as well as to assist the
development of resources for poor farmers. Remedial work to improve
the safety of the dam is also required. All of this involves major
construction works.
6. The raising of the dam wall project implementation is already at 12%
completion, which includes site establishment, access roads, support
infrastructure, upgrades to the N7 National road, etc, and will be
followed by Phase Two which includes the upgrading and expansion of
the conveyance network downstream of the Bulshoek Dam.
7. According to the Minister's founding papers, the project requires
termination of the OA. Consequently, the DWS has addressed
correspondence to Clackson terminating the OA, the termination to
take effect on 29 February 2022. Follow-up letters were sent to
Clackson, the latest being a letter dated 13 September 2022 in which
Clackson was again requested to cease the power station operations
4
and to remove all the machinery from the site within 14 days of the
letter.
8. Clackson responded per letter dated 19 September 2022 in which it
denied the DWS's competence to terminate the OA and refused to
cease operation and vacate the property.
9. An impasse was reached, which gave rise to these proceedings.
THE COMPETING CONTENTIONS OF THE PARTIES
10. The OA contains no provisions relating to its termination whatsoever.
The Minister contends that it is accordingly a contract of unspecified
duration and that it is therefore a question of interpretation to ascertain
what the intention of the parties was regarding termination.
11. Having regard to the other terms of the OA, the Minister points out that
it contains no indication that the parties intended to be bound in
perpetuity and that, on a proper interpretation, a tacit term must be
imported into the OA to the effect that the OA would be terminable on
reasonable notice by either party. The Minister contends further that
reasonable notice of termination was given, that the OA has
accordingly been lawfully terminated and that the DWS, as owner of
the property, is entitled to obtain an order that Clackson must cease its
operations and vacate the property.
12. Clackson raises the following grounds of opposition to the application:
5
12.1 That the Minister's deponent "lacks the necessary authority to
bring this application or depose to the affidavit on behalf of the
applicanf';
12.2 That Clackson is in possession of a NERSA licence which is
valid until March 2028, which authorises it to operate the hydro
power plant and sell electricity to the Municipality as well as four
other clients;
12.3 That Clackson has a right to occupy the property and possess
the land, 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
OA dated 17 April 2001;
12.4 That an "arrangement" has been reached that the DWS'
construction works will be managed in such a manner that
Clackson will be able to proceed with its established business
with minimal interruption;
12.5 That the DWS' intended construction works are unlawful.
13. For reasons that will become apparent, I deal with the issue of authority
first.
6
THE AUTHORITY OF THE DEPONENT TO INSTITUTE PROCEEDINGS OR
TO DEPOSE TO FOUNDING AFFIDAVIT ON BEHALF OF THE MINISTER
Relevant facts
14. The Minister's deponent, Mr Aloious Muwengwa Chaminuka, in his
founding affidavit stated that he is "an adult male Director-General of
the Department of Water and Sanitation" and further that "I am duly
authorised to depose to this affidavit and to institute the current
application on behalf of the Departmenf'.
15. In the statement quoted above, Mr Chaminuka professed to institute
the proceedings on behalf of the DWS and not the Minister but nothing
turns on this. Proceedings on behalf of the State may be commenced
both in the name of the State or the Government and in the name of a
nominal plaintiff or applicant, usually the Minister as the embodiment of
the Department. Proceedings may also be commenced by the
administrative head of the Department.1
16. In its answering affidavit, Clackson denied those averments and
attached a document titled "Department of Water Affairs and Forestry
General Power of Attorney" ("the GPOA"). It obtained the GPOA from
the Minister's attorneys in response to a specific request for the letter of
appointment or written delegated authority I delegation of authority in
terms of which Mr Chaminuka claims to be authorised to bring the
1 Farocean Marine (Pty) Ltd v Minister of Trade and Industry 2007 (2) SA 334 (SCA) para
8
7
application and to depose to the founding affidavit on behalf of the
Minister.
17. In the GPOA, the then Minister of the Department of Water Affairs and
Forestry nominated and appointed certain functionaries "to perform and
exercise on my behalf and in my place the actions and powers set out
herein". The power "To institute any legal action or defend any legal
action instituted against myself, and to sign any documents,
applications, pleadings, notice and sworn affidavits in connection with
such legal action" is given to various incumbent and future officials,
including the Director-General.
18. In Clackson's answering affidavit, its deponent, Mr Clack, denied that
Mr Chaminuka is the Director-General of the DWS, it being public
knowledge that such position and appointment is actually held by Dr
Sean Phillips. Mr Clack further pointed out that it appears from one of
the documents annexed to the Minister's own founding papers, 2 that Mr
Chaminuka is actually the "Chief-Director: Engineering Services" which
contradicts and disproves the statement made by him under oath in his
founding papers and also shows that he was in fact not clothed with the
necessary authority to bring the application on behalf of the Minister or
to depose to the affidavit.
19. In his replying affidavit, Mr Chaminuka described himself as the Chief
Director: Engineering Services of the Department of Water and
2 Namely Annexure "FA3" which is a letter from the DWS to Clackson dated 11 December
2018.
8
Sanitation. In response to Clackson's attack on his authority as referred
to above, he stated in reply that the proceedings are instituted by the
Minister in terms of the State Liability Act, 20 of 1957, that he is
"merely a witness used by the Minister in advancing the
Department's case"
and that
"accordingly it is incorrect to suggest that I have brought
proceedings on behalf of the Minister or the applicant herein."
20. He stated further that he has been advised that a deponent to an
affidavit does not need to be authorised as he is merely a witness like
any other.
21. 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 GPOA. There was also
no attempt at ratifying Mr Chaminuka's actions by an authorised official.
22. 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.
9
23. No explanation is provided by the Minister in the heads of argument
filed by his counsel either. Instead a new basis is offered on which it
must be accepted that the institution of the proceedings were properly
authorised, namely that "The current application is instituted by the
Office of the State Attorney on the instruction of the Minister of Water
and Sanitation and such authority has not been challenged as per the
prescripts of Rule 7(1) of the Uniform Rules ofCourf'.
24. It must be pointed out that not even after the authority of Mr Chaminuka
was challenged, was there any statement made in the Minister's
papers to the effect that the application was instituted by the State
Attorney on his behalf. In any event, as will be seen from the
discussion below, the authority of an attorney to act on behalf of a
litigant must be distinguished from the authority of the person providing
the instructions on behalf of a litigant who is not a natural person. It is
the latter that is under challenge by Clackson in this matter.
25. It is necessary to examine the submissions made by the Minister
regarding this issue.
The Minister's submissions
26. First, with reference to the judgment of the Constitutional Court in
President of the Republic of South Africa and Others v M&G Media
Ltd 2012 (2) SA 50 (CC), it is submitted on behalf of the Minister that
the key question is whether or not the deponent would in the ordinary
course of his or her duty or as a result of some other capacity
described in the affidavit have had the opportunity to acquire
information or knowledge alleged. Reference is also made to the case
of Barclays National Bank Ltd v Love 1975 (2) SA 514 (C).
27. However, those cases did not deal with, and have no bearing on, the
issue at hand at all. In President of the Republic of South Africa the
issue was, in the context of an application in terms of the Promotion of
Access to Information Act, 2 of 2000, whether an affidavit by an official
discharged the State's burden to provide information. In Barclays
National Bank the context was whether an affidavit in support of
summary judgment on the face of it complied with the requirement that
it must be by a person who can positively swear to the facts.
28. Second, reference is also made to the following oft-cited dictum in the
case of Ganes and Another v Telkom Namibia Ltd 2004 (3) SA 614:
"It is irrelevant whether Hanke had been authorised to depose to
the founding affidavit. The deponent to an affidavit in motion
proceedings need not be authorised by the party concerned to
depose to the affidavit. It is the institution of the proceedings and
the prosecution thereof which must be authorised."
29. However, that passage merely establishes the principle that a
deponent need not be authorised to depose to an affidavit. Indeed, the
last sentence makes precisely the point taken by Clackson, namely that
it is the institution of the proceedings and the prosecution thereof that
must be authorised.
11
30. Lastly, the Minister refers to the provisions of Uniform Rule 7(1) and the
judgments in the cases of Eskom v Soweto City Council 1992 (2) SA
703 (WO) and Administrator, Transvaal v Mponyane and Others
1990 (4) SA 407 (WLD) for the submission that
"In any event, Rule 7 provides a procedure to be followed by a
respondent who wishes to challenge the authority of an attorney
who instituted motion proceedings on behalf of an applicant."
31. have already pointed out that Clackson's challenge is not to the
authority of the State Attorney. However, since its amendment in 1987,
Rule 7(1) in clear terms applies not only when the authority of an
attorney is challenged but when the authority of anyone acting on
behalf of a party is challenged. The Rule now provides as follows:
"7(1) Subject to the provisions of subrules (2) and (3) a power
of attorney to act need not be filed, but the authority of
anyone acting on behalf of the party may, within ten days
after it has come to the notice of the party that such
person is so acting, or with the leave of the court on good
cause shown at any time before judgment, be disputed,
whereafter such person may no longer act unless he
satisfied the court that he is authorised to act, and to
enable him to do so the court may postpone the hearing
of the action or application."
32. As I have also already alluded to, by seeking to shift the focus to the
authority of the State Attorney, the Minister, wittingly or unwittingly,
overlooks the distinction between the two types of authority that are at
issue in these matters, namely (a) the authority of the legal practitioner
12
who instutes or defends legal proceedings on behalf of a party and (b)
the second type of authority, which is relevant to this matter, namely
whether, in the case of the litigant that is not a natural person, the
institution of the proceedings were properly authorised by the party
itself. Put differently, the second type of authority involves the question
as to whether the person who instructed the legal practitioner had
proper authority to give such instructions.3
33. The Minister's submission referred to in paragraph 30 above is not
unequivocally to the effect that an authority to institute proceedings can
only be challenged by using the procedure prescribed in Rule 7(1), but
my understanding is that that is, in effect, the Minister's case, or part of
his case. In any event, the issue is the subject of some judicial discord
and accordingly requires closer scrutiny.
Can authority to institute proceedings only be challenged in terms of
Uniform Rule 7(1 )?
34. The starting point of this enquiry is what was long considered to be an
uncontentious rule that an applicant must make out a case in the
papers that the person who instituted the proceedings was duly
authorised by the applicant (when it is not a natural person) to do so.
This rule was articulated as follows by a Full Court of this Division in
the case of Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2)
SA 347 (C):
3 Herbstein and Van Winsen: Civil Practice of the Superior Courts of South Africa, Vol 1,
5th Ed.at p 6-2. See also Lancaster 101 (RF) (Pty) Ltd v Steinhoff International Holdings
[2021] 4 All SA 81 O (WCC) at para [13] where the authority of an attorney is described as an
"extension" of the authority to institute proceedings.
13
"There is a considerable amount of authority for the proposition
that, where a company commences proceedings by way of
petition, it must appear that the person who makes the petition
on behalf of the company is duly authorised by the company to
do so (see for example Lurie Brothers Ltd v Arcache 1927 NPD
139, and the other cases mentioned in Herbstein & Van Winsen,
Civil Practice of the Superior Court in South Africa at pp 37-38).
This seems to me to be a salutary rule and one which should
also apply to notice of motion proceedings where the applicant is
an artificial person. In such cases some evidence should be
placed before the Court to show that the applicant has resolved
the instituted proceedings and that the proceedings are
instituted at its instance. Unlike the case of an affidavit, the mere
signature of the notice of motion bv an attorney and the fact that
the proceedings purported to be brought in the name of the
applicant are in mv view insufficient. The best evidence that the
proceedings have been properly authorised would be provided
by an affidavit made by an official of the company annexing a
copy of the resolution but I do not consider that that form of
proof is necessary in every case. Each case must be considered
on its own merits and the Court must decide whether enough
has been placed before it to warrant the conclusion that it is the
applicant which is litigating and not some unauthorised person
on its behalf" [Emphasis provided.]
35. Mall (Cape) was decided before the amendment to Rule 7(1 ), but it
was referred to with approval after the amendment by the Supreme
Court of Appeal in the case of Tattersall and Another v Nedcor Bank
Ltd 1995 (3) SA 222 (A).4
4 At 228F - 229D
14
36. As is pointed out by the learned authors in Herbstein and Van Winsen
(supra),5 the position as set out above was followed and applied in
motion proceedings for almost fifty years, up to 2005 when the waters
became somewhat muddied by the judgment of the Supreme Court of
Appeal in the case of Unlawful Occupiers, School Site v City of
Johannesburg 2005 (4) SA 199 (SCA) in which, with reference to the
judgments in Eskom v Soweto City Council 1992 (2) SA 703 (W) and
Ganes (supra) it was inter alia held by Brand JA that:
and
"The import of the judgment in Eskom is that the remedy of the
respondent who wishes to challenge the authority of a person
allegedly acting on behalf of the purported applicant is provided
for in Rule 7(1) of the Uniform Rules of Court ... "6
" ... now that the new Rule 7(1) remedy is available, a party who
wishes to raise the issue of authority should not adopt the
procedure followed by the appellants in this matter, i.e. by way
of argument based on no more than a textual analysis of the
words used by a deponent in an attempt to prove his or her own
authority."7
37. Although Mall (Cape) and Tattersall were included in the list of
authorities referred to by counsel in School Site, those cases were not
referred to by Brand JA in the judgment. Moreover, the passages
5 At p 6-3 a.f.
6 At 206G-H
7 At 207F-G
15
quoted above did not in my view unequivocally introduce a rule that
authority to institute proceedings can only be challenged by using the
Rule 7(1) procedure. The statement that a party "should not" follow the
old procedure does not necessarily mean a party "may not" do that.
38. However, in the case of ANC Umvoti Council Caucus and Others v
Umvoti Municipality 2010 (3) SA 31 (KZP) the Full Court relied on
those passages to expressly decline to follow Mall (Cape) and
unequivocally hold that Rule 7(1) now provides the only procedure by
which the authority for institution of the proceedings can be challenged.
Gorven J for the Full Court, inter alia held that
"I am therefore of the view that the position must change, since
Watermeyer J set out the approach in the Merino Ko-operasie
Bpk case. The position now is that, absent a specific challenge
by way of Rule 7(1), 'the mere signature of the notice of motion
by an attorney and the fact that the proceedings purport to be
brought in the name of the applicant' is sufficient. It is further my
view that the application papers are not the correct context in
which to determine whether an applicant which is an artificial
person has authorised the initiation of application proceedings.
Rule 7(1) must be used."8
39. The Court rejected the attack on the authority of the acting municipal
manager to bring the application on behalf of the Umvoti Municipality
despite expressing " ... grave reservations whether the court a quo was
correct in its conclusion that a case was made out on the papers that
the manager had authority to institute the proceedings, this despite the
8 At para 28
16
fact that certain averments in the replying affidavit relating to authority
went unanswered'', on the mere basis that the Rule 7 procedure had
not been used.
40. Respectfully, that approach appears to disregard the principle that the
Rules are not an end in themselves.9 It must also be pointed out in this
regard that Rule 7(1) does not provide any specific procedure for its
implementation.
41. In Lancaster 101 (supra) the Court (in this Division) referred with
approval to a view expressed by the learned author Van
Loggerenberg (supra) that a challenge to Authority " ... may be raised
in a variety of ways, inter alia in appropriate circumstances by notice,
with or without supporting evidence, in a defendant's plea or special
plea; in an answering affidavit or orally at the triaf' .10
42. It must be noted that Van Loggerenberg (supra) in the latest revision,
namely Service 22, 2023, retracted that view" ... in the light of the cases
referred to in the notes to Rule 7 SV 'General' above" being the cases
of Eskom v Soweto City Council, School Site, Ganes and ANC
Umvoti.11
43. On the other hand, the learned authors of Herbstein and Van Winsen
(supra) have stridently criticised the judgment in ANC Umvoti and
reiterated the position that: "Rule 7(1) does not say how the challenge
9 Van Loggerenberg: Erasmus Superior Courts Practice, 2nd Ed, Vol 2 p 0107; Centre for
Child Law v Hoerskool Fochville 2016 (2) 121 (SCA) at 131G-H
10 At para 22
II At pp 07-6 - 7-7
17
to the authority of the person acting for a party should be made. It is
submitted that it may be made by way of a special plea, in an affidavit
or by notice."12
44. To the criticism of ANC Umvoti expressed in Herbstein and Van
Winsen 13 may be added that the Court gave no recognition of the fact
that Mall (Cape) was approved and applied by the erstwhile Appellate
Division in Tattersall, which was decided after the amendment to Rule
7(1). The Court (in ANC Umvoti) relied heavily on the judgment of the
Supreme Court of Appeal in School Site but, as I have already
mentioned, that case did in my view not expressly bring about the
change suggested by the Court. This proposition is confirmed by the
fact that Brand JA did not refer to Mall (Cape) and Tattersall in his
judgment at all. Had the intention of the Supreme Court of Appeal in
School Site been to bring about such a change, it would have dealt
with Tattersall, at least, and said so expressly.
45. The authors of Herbstein and Van Winsen in my view correctly point
out that Brand JA had earlier in the judgment referred to the fact that it
was conceded by counsel for the appellant that she could not support
the submission that the deponent had failed to prove that he was duly
authorised. His remarks regarding Rule 7(1) were accordingly not
necessary for the outcome of the case, and thus obiter.
12 At p 6-9
13 Supra
18
46. ANC Umvoti appears to be the only case in which Mall (Cape) was
expressly not followed and it, in turn, appears not to have been
followed in any reported judgments. It has however also not expressly
been criticised or rejected by other courts.
47. In the case of Boerboonfontein BK v La Grange NO en 'n Ander
2011 (1) SA 58 (WCC), Binns-Ward J for a Full Court of this Division,
without discussion, applied the rule in Mall (Cape).14 In the case of
Graham v Park Mews Body Corporate and Another 2012 (1)SA 355
(WCC), Henney J, in a slightly different context, referred with approval
to both Mall (Cape) and Tattersall.15 In Lancaster 101 (supra)
Kusevitsky J had no hesitation in referring to Mall (Cape) with
approval. However, in that case a Rule 7(1) notice had been filed which
was followed by a Rule 30A notice and application.
48. More recently, Mall (Cape) and Tattersall were followed in the case of
HR Computek v Dr WAA Gouws 2023 (6) SA 268 (GJ) at para 28.16
49. ANC Umvoti, being a judgment of a Full Court of another Division must
be given its due respect but this Court is not bound by it and I
respectfully decline to follow it. In doing so, I am mostly persuaded by
the fact that in School Site, the Supreme Court of Appeal did not even
mention Mall (Cape) or Tattersall. In terms of the sub silentio
14 At para [16]
15 At para [21]
16 In that case, the court declined to strike out the affidavits of the respondent on the basis that
the attorneys were not properly authorised without first providing them with an opportunity to
provide proof of their authority and mandate, but that was not on the basis that Rule 7(1)
must be followed.
19
principle,17 School Site does not serve as precedent for the conclusion
reached in ANC Umvoti.
50. It can in my view accordingly safely be said that the rules and principles
set out in Mall (Cape) and Tattersall still apply, and that the authority
of the person instituting the proceedings on behalf of a litigant can be
challenged on the papers. Rule 7(1) provides the benefit to the party
challenging the authority that the proceedings are effectively stayed
until the Court has been satisfied of the authority, but a litigant can in
my view elect not to make use of that benefit. There may be
circumstances in which challenging the authority in the papers instead
of Rule 7(1) might warrant an adverse costs order, but in my view this
is not such a case.
51. When it appears so clearly from the papers, including the applicant's
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.
52. It is accordingly neither necessary nor sensible to deal with the
remaining issues raised in this case.
Costs
53. The Minister's deponent falsely testified that he is the Director-General
of the DWS, and on that basis alleged authority to institute the
proceedings on the Minister's behalf. When this was challenged by
17 Santam Insurance Co Ltd v Vilakasi 1967 (1) SA 246 (A) at 259A-B
20
Clackson 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 rectifiy the problem by way of ratification of the
proceedings by an authorised official. None of that was forthcoming
and instead the Minister's deponent simply changed tack by contending
that the proceedings were instituted by the State Attorney on behalf of
the Minister. In my view , this is the kind of conduct in litigating a matter
that is deserving of an adverse special costs order.
CONCLUSION
54. Accordingly, I make the following order:
54.1 The application is dismissed with costs on the scale on the scale
as between attorney and client.
D JOUBERT J
Date: Q_c9 /o 3 ,/2__oLt.,
~ 7
Applicant's counsel:
Respondent's counsel:
Adv HA Mpshe
Adv M Jiana
Adv M Tsele