26 April 2017

South Africa: Court Finds Nuclear Deals Unconstitutional

Agreements with Russia, Korea and US have been scrapped.

The Western Cape High Court ruled on Wednesday that government's nuclear agreements with Russia, Korea and the US were unlawful and unconstitutional.

In a landmark ruling earlier today, the Court also scrapped the South African government's decision to buy about eight nuclear power stations - 9600MW of nuclear power. The court's decision has also paved the way for citizens to have a say in any future decisions about a nuclear future for South Africa.

The ruling also set aside requests by government or Eskom for proposals and information from nuclear vendor countries. This decision was first gazetted in 2013 by former Energy Minister Ben Martins and later amended and gazetted in 2016 by former Energy Minister Tina Joemat-Pettersson.

The matter was brought by NGOs Earthlife Africa and the SA Faith Communities' Environment Institute (Safcei) against the minister of energy, the president, the National Energy Regulator of SA (Nersa) and Eskom.

The legal teams for the two organisations argued that the government's decision to expand the nuclear programme by 9600MW was unlawful. They also argued that the decision by Joematt-Pettersson to table agreements with Russian, Korean and US in a manner which ensured they did not come before Parliament was unconstitutional.

In their ruling Judges LJ Bozalek and Elizabeth Baartman found that the Russian inter-governmental nuclear agreement was "well outside a broad nuclear co-operation agreement."

The Court said that "at the very least it sets the parties well on their way to a binding, exclusive agreement in relation to the procurement of new reactor plants from the particular country."

Bozalek said Joemat-Pettersson's decision to table the Russian nuclear agreement under section 231 (3) of the Constitution was "at the very least, irrational". This decision was also set aside.

The judgment stated that the minister appeared either to have failed to apply her mind to the requirements of the Constitution in relation to the tabling of the Russian agreement, or "at worst to have deliberately bypassed its provisions for an ulterior and unlawful purpose".

The court said the Korean and US agreements, made many years ago but tabled only in 2015, could also not be tabled under section 231 (3) and were set aside.

The court said the Constitution provided that everyone had the right to administrative action that was lawful, reasonable and procedurally fair.

When former energy ministers Martin and Joemat-Pettersson had taken decisions in 2013 and 2016 respectively, that South Africa would procure 9600MW of new nuclear power, the National Energy Regulator of SA (Nersa) was legally bound to consider the ministers' proposed decisions. Only if Nersa concurred with the decision did it become lawful and binding. Nersa had concurred with the ministers in both instances, and they were gazetted.

However, the court found that the short period between the two ministers asking Nersa to concur their decisions made it "most unlikely that a fair procedure could have been carried out".

Judge Bozalek said: "There is no serious dispute that the decision to procure 9600MW of new nuclear power will have far-reaching consequences for the South African public and will entail very substantial spending. The applicants estimate the cost, which will ultimately be met by the public through taxes and increased electricity charges, could be one trillion rand - and this estimate was not disputed by the respondents."

This huge cost allocated to nuclear power would inevitably affect spending on other government programmes such as health and education. The nuclear programme would also have "potentially far-reaching implications for the environment".

Because of these considerations, the court said if Nersa had carried out a rational and fair decision-making process, it would have made provision for the public to submit its views before it decided to concur with the minister's proposed nuclear decision. It did not do so. Nersa's decision was therefore procedurally unfair and breached the Promotion of Administrative Justice Act.

In addition, Nersa was under a statutory duty to act in the public interest, and in a transparent manner.

"It (Nersa) has failed to explain how it acted in the public interest without taking steps to ascertain the views of the public," the judgment read. For these reasons, Nersa's decisions failed the test for rational decision-making. The decision for new nuclear power were thus set aside.

Speaking outside the court earlier today, Earthlife Africa member Makoma Lekalala said many South Africans opposed nuclear power.

"We are holding government accountable... .The future is in our hands and we are not going to allow unjust energy decisions to be taken on our behalf. This government must invest more in renewable energy. It is the people's power," Lekalala said.

Costs were awarded to the applicants.

Read the full judgment [PDF].

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