CEC appeals against high court decision on common carriers declaration

COPPERBELT Energy Corporation (CEC) has moved to the Court of Appeal challenging the decision of the minister of energy to declare its transmission and distribution lines as common carriers.

This was after the High Court refused to consider CEC’s application for Judicial Review against the minister.

CEC has cited the Attorney General and the Energy Regulation Board in the matter.

In its skeleton arguments in support of notice of renewal of Ex-parte application for leave to apply for judicial review, CEC said it has sufficient interest in the matter as it is directly affected by the decisions of Energy minister Matthew Nkhuwa and the Energy Regulation Board.

CEC also wants to challenge the decision by the Energy Regulation Board which set the wheeling tariff before the parties negotiate terms of use.

CEC wants to challenge Mr Nkhuwa and ERB’s position on grounds that it is illegal, procedurally improper and the motive is in bad faith.

It said under Section 15(2) of the Electricity Act once a minister declares a transmission and distribution line as a common carrier, the terms and conditions of use ought to be agreed on between the owner of the transmission and distribution lines and any enterprise that intends to use the said lines. CEC stated that the matter is only referred to the ERB in the event of default in agreement between the owner and the enterprise.

“The minister has no power under Section 15(2) of the Energy Act to order that the terms and conditions of the transmission or distribution line should be determined by the ERB. What the minister did is acting ultra views the enabling Act,” CEC said.

“The minister acted outside the law that regulates his decision making power as he ignored the procedural rule expressly laid down in Section 15(2) of the Electricity Act by which the jurisdiction to pass SI. 57 of 2020 which was conferred on him. This is clearly an illegality committed by the minister.” CEC said

It stated that the illegality spins around the distinction between a distribution and transmission network as enshrined in the Electricity Act.

CEC said it has numerous transmission and distribution lines dedicated to many customers on the Copperbelt and Democratic Republic of Congo therefore Nkhuwa ought to have specified which transmission and distribution lines he had declared as common carriers out of the lines owned by CEC.

It also argued that the ERB cannot set the wheeling tariff before the parties negotiate terms of use and fail to agree.

CEC argued that ERB’s role can be described as a ‘default role’ which only comes into play when the parties have failed to reach an agreement.

“In this case however ERB determined the wheeling tariff on the interim basis CEC and ZESCO had engaged in discussions over the same. No provision under the Electricity Act allows ERB to do what it did,” CEC stated