Minister of Water and Sanitation v Clackson Power (Pty) Ltd and Another

The Minister of Water and Sanitation ('the Minister'), cited in his official capacity as the Minister responsible for the National Water Act, brought an application to evict the first respondent, Clackson Power (Pty) Ltd ('Clackson'), from the Clanwilliam Dam. Clackson is an independent power producer that holds a NERSA licence to operate a hydro-power plant at the dam. It purchased the plant from the second respondent (Cederberg Local Municipality) in 1998 and concluded an Operations Agreement ('OA') with the Department of Water and Sanitation ('DWS') in 2001. The DWS embarked on a project to raise the dam wall, which required termination of the OA. The DWS sent correspondence to Clackson terminating the OA, but Clackson refused to cease operations and vacate the property, leading to an impasse and the Minister's application. The Minister's founding affidavit was deposed to by Mr Aloious Muwengwa Chaminuka, who described himself as the 'Director-General of the Department of Water and Sanitation' and stated he was 'duly authorised to depose to this affidavit and to institute the current application on behalf of the Department'. Clackson challenged his authority, pointing out that the actual Director-General was Dr Sean Phillips, and that Mr Chaminuka was in fact the 'Chief-Director: Engineering Services'. In reply, Mr Chaminuka changed his stance, stating that the proceedings were instituted by the Minister under the State Liability Act and that he was merely a witness, not the person who brought the proceedings.

• Whether the Minister's deponent had the necessary authority to institute the application on behalf of the Minister.
• Whether a challenge to the authority of a person instituting proceedings on behalf of an artificial person can only be brought in terms of Uniform Rule 7(1), or whether it may be raised in the answering papers.
• Whether the institution of the proceedings was properly authorised by the Minister.

The application was dismissed with costs on the scale as between attorney and client.

In motion proceedings where the applicant is an artificial person (including a state functionary cited in an official capacity), the applicant must place sufficient evidence before the court to show that the person who instituted the proceedings was duly authorised to do so. This authority can be challenged in the answering papers without the need to invoke the procedure under Uniform Rule 7(1). Where it appears clearly from the papers, including the applicant's own papers, that the proceedings were not properly authorised, the application should be dismissed. A deponent who falsely claims authority and fails to rectify the defect when challenged warrants a special costs order.

The court expressed 'grave reservations' about the correctness of ANC Umvoti Council Caucus v Umvoti Municipality, which held that Rule 7(1) provides the exclusive procedure for challenging authority to institute proceedings. The court noted that the SCA in School Site did not expressly overrule Mall (Cape) and Tattersall, and that its remarks on Rule 7(1) were obiter and thus not binding precedent under the sub silentio principle. The court also observed that Rule 7(1) provides a benefit to the challenging party (staying proceedings until authority is proven), but a litigant may elect not to use it; however, in some circumstances, challenging authority in the papers rather than via Rule 7(1) might warrant an adverse costs order.

This case resolves the judicial discord regarding whether Uniform Rule 7(1) provides the exclusive mechanism for challenging the authority to institute proceedings on behalf of an artificial person. The court affirms the continued applicability of Mall (Cape) and Tattersall, holding that authority may be challenged directly on the papers. It also reinforces the principle that state litigants must ensure that proceedings are properly authorised and that false or misleading statements regarding authority will attract punitive costs orders.