CEC cleared to challenge minister
THE Court of Appeal has given the Copperbelt Energy Corporation (CEC) a green light to challenge Minister of Energy Matthew Nkhuwa’s decision to declare its transmission and distribution lines as common carriers.
However, the court has refused to grant CEC’s plea for an order of stay of execution of Mr Nkhuwa’s decision to declare the infrastructure as common carriers pending judicial review proceedings.
This is in a case CEC filed an application to commence judicial review proceedings in the Court of Appeal against Government’s decision to declare its infrastructure as common carriers.
Earlier, CEC sought the same plea in the Lusaka High Court but ajudge refused to grant it.
In its application in the High Court, CEC cited Attorney General Likando Kalaluka and the Energy Regulation Board (ERB) as respondents.
CEC sought a declaration that Mr Nkhuwa’s decision to declare its transmission and distribution lines as common carriers is unlawful.
It also wanted to challenge ERB’s decision of May 31, 2020 to direct it to charge a wheeling tariff of US$5,84 kilowatt per month.
But in June this year, Lusaka High Court Judge Mwape Bowa refused to allow CEC to start judicial review proceedings to challenge Mr Nkhuwa’s resolve to declare its infrastructure as common carriers.
Judge Bowa said granting CEC an order to stay the minister’s decision would create conflicting decisions by two High Court judges.
Unhappy with the resolution, CEC rushed to the Court of Appeal when it renewed its application, which has now been granted.
Court of Appeal judges Mubanga Kondolo, Flavia Chishimba and Judy Zulu-Mulongoti ordered that the judicial review proceedings into the matter be heard before another High Court judge.
In a judgment delivered by Judge Chishimba on behalf of other adjudicators, the court said it is not in contention that CEC’s transmission and distribution lines were declared common carriers and ERB imposed a temporary tariff before the parties could agree.
“The background to what transpired prior to the declaration of the applicant’s (CEC’s) lines is stated earlier on in our background of facts. KCM in (liquidation) owed and owes the applicant an undisputed sum in excess of US$144 million.
“A demand was made followed by the applicant’s intention to discontinue further supply of the commodity,” the judgment reads in part.
The court also referred to a media statement by CEC dated May 29, 2020 which informed that it would from January 1, 2020 discontinue supply of power to KCM in view of the outstanding debt of US$132 million which was as at May 31, 2020 projected to grow to US$43 million.
“Prior to that, certain media statements were mad or ascribed to Mr Nkhuwa warning the applicant not to disconnect supply to KCM,” Judge Chishimba said.
The judge said the court was satisfied that CEC met the threshold to be granted leave to commence judicial review proceedings.
“There appears to be an arguable case for further investigation at a substantive hearing of the judicial review proceedings vis-à-vis whether the decisions assailed were legally or procedurally effected or made in bad faith and for improper motives,” the judgement reads.
The court is of the view that the material on record in respect of the renewed application discloses an arguable case fit for further investigation.
“Having granted leave to commence judicial review proceedings, we accordingly order that the said proceedings be heard before another judge. Costs to the applicant to be taxed in default of agreement,” the judgment reads.
source: Zambia daily mail
