THE Court of Appeal has granted the Copperbelt Energy Corporation (CEC) leave to commence judicial review proceedings in the Lusaka High Court against Energy Minister Matthew Nkhuwa’s decision to declare its transmission and distribution lines as a common carrier.
Court of Appeal judges Mubanga Kondolo, Flavia Chishimba and Judy Zulu-Mulongoti, ordered that the judicial review proceedings should be heard before another judge.
The court has however, declined to order a stay of execution of the decision made pending judicial review proceedings.
In June this year, Lusaka High Court Judge Mwape Bowa refused to grant CEC leave to commence judicial review proceedings to challenge the said decision by the Energy Minister.
CEC had applied for leave to commence judicial review proceedings in the Lusaka High Court against Nkhuwa’s decision to declare its transmission and distribution lines as a common carrier.
CEC which cited the Attorney General and the Energy Regulation Board (ERB) as respondents, was seeking a declaration that Nkhuwa’s decision to declare its transmission and distribution lines as common carrier was unlawful.
It also wanted to challenge the decision of the Energy Regulation Board of May 31, 2020 to direct it to charge wheeling tariff of US$5,84/kw/per month.
CEC further wanted an order to quash the said decisions and a further order to stop Nkhuwa from enforcing SI no.57 of 2020 as it was illegal.
But in his ruling, Judge Bowa denied CEC leave to commence judicial review proceedings against Nkhuwa’s decision and further said granting CEC an order to stay the minister’s decision would create two conflicting decisions by two High Court judges.
He however, said CEC was at liberty to renew its application for leave before the Court of Appeal.
CEC then went to the Court of Appeal by way of renewal seeking leave of the court to commence judicial review proceedings which was declined by the High Court.
And in a judgement delivered by judge Chishimba on behalf of the two other Court of Appeal judges, Tuesday, the court said it was at this stage not concerned with the merits of the substantive hearing of the actual judicial review or its determination.
The court said it was merely concerned with whether CEC had demonstrated to the court that it had an arguable issue to be resolved at the full hearing.
Judge Chishimba said it was not in issue that CEC’s transmission and distribution lines were declared common carrier and ERB imposed a ‘temporal’ tariff before the parties could agree.
“The background to what transpired prior to the declaration of the applicant’s (CEC) lines is stated earlier on in our background facts in the judgement and needs not be rehashed save to state that KCM in liquidation owed and owes the applicant 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,” she said.
The court referred to a media statement by CEC dated May 29, 2020 to the effect that it would from January 1, 2020, discontinue the 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$143 million.
“On May 29, 2020, SI No.57 of 2020 was issued by the Minister of Energy, the schedule therein stipulated that all transmission and distribution lines operated by CEC were declared common carrier. Prior to that, certain media statements were allegedly made or ascribed to the Minister of Energy warning the applicant not to disconnect supply to KCM,” judge Chishimba said.
She said the court was satisfied that CEC met the threshold to be granted leave to commence judicial review proceedings.
Judge Chishimba said there appeared to be an arguable case fit for further investigation at a substantive hearing of the judicial review proceedings vis-a-vis whether the decisions assailed were legally or procedural effected, or made in bad faith and for improper motives.
“We hold the view that the material on record in respect of the renewed application discloses an arguable case fit for further investigation. We accordingly exercise our judicial discretion by granting leave to the applicant to commence judicial review proceedings in the court below. We however decline to order a stay of execution of the decision made pending judicial review proceedings,” she said.
“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.”