SA court rules nuclear deal illegal
The Western Cape High Court's ruling on Wednesday that the nuclear procurement process has been unlawful and unconstitutional won't necessarily scupper government's plans to expand nuclear energy. It means the procurement process will have to begin with a clean slate.
Judge Lee Bozalek ruled in favour of applicants Earthlife Africa and the Southern African Faith Communities' Environment Institute (Safcei) on Wednesday, significantly derailing current attempts to proceed with the construction of 9,600 MW in nuclear plants and issue binding proposal requests in June.
Bozalek said the state's section 34 determinations, allowing it to procure nuclear power, are “unlawful and unconstitutional” and must be set aside. Any steps taken since the 2013 and 2016 determinations must also be set aside. The court also found that the inter-governmental agreements reached with Russia, the United States and Korea regarding the deals were also unlawful and unconstitutional and should be set aside. The energy minister was ordered to pay the applicants' legal costs.
Safcei and Earthlife argued that any future nuclear procurement attempts from the energy minister should be subject to a public participation process, which Bozalek did not order. He did, however, go into detail about the requirements for the National Energy Regulator of South Africa (Nersa) to consult the public. “The finding that it is under such a duty is central to this judgment,” he said.
Adrian Pole, legal representative for Safcei and Earthlife, said: “Before any nuclear procurement can proceed, the Minster of Energy (in concurrence with Nersa) will be required to make a new determination in accordance with a lawful process that is transparent and includes public participation. This will necessarily require disclosure of relevant information that to date has been kept from the public, including critical information on costs and affordability.”
Makoma Lekalaka from Earthlife Africa said the judgment was a win for justice and the rule of law, showing the government cannot overrule regulation and legislation. “I think the events of the past few weeks shows this nuclear deal was about to bring a lot of turmoil in the country,” she said.
There has been speculation President Jacob Zuma's recent Cabinet reshuffle aimed to push the nuclear deal, which at an estimated cost of R1-trillion has raised fears it might cause rampant corruption. “The arms deal was a drop in the ocean (in comparison),” said Lekalaka.
“Basically if the government wants to go ahead they would have to start afresh and it would have to be a process South Africans are involved in,” she added on the impact of the judgment.
Government's 2010 Integrated Resource Plan calls for the building of 9,600 MW in nuclear power, while the draft 2016 version estimates the country will only need nuclear plants by 2037. Eskom, which was set to lead the procurement deals, issued a request for information in December and was expected to issue requests for proposals from suppliers in June.
DAILY MAVERICK
Judge Lee Bozalek ruled in favour of applicants Earthlife Africa and the Southern African Faith Communities' Environment Institute (Safcei) on Wednesday, significantly derailing current attempts to proceed with the construction of 9,600 MW in nuclear plants and issue binding proposal requests in June.
Bozalek said the state's section 34 determinations, allowing it to procure nuclear power, are “unlawful and unconstitutional” and must be set aside. Any steps taken since the 2013 and 2016 determinations must also be set aside. The court also found that the inter-governmental agreements reached with Russia, the United States and Korea regarding the deals were also unlawful and unconstitutional and should be set aside. The energy minister was ordered to pay the applicants' legal costs.
Safcei and Earthlife argued that any future nuclear procurement attempts from the energy minister should be subject to a public participation process, which Bozalek did not order. He did, however, go into detail about the requirements for the National Energy Regulator of South Africa (Nersa) to consult the public. “The finding that it is under such a duty is central to this judgment,” he said.
Adrian Pole, legal representative for Safcei and Earthlife, said: “Before any nuclear procurement can proceed, the Minster of Energy (in concurrence with Nersa) will be required to make a new determination in accordance with a lawful process that is transparent and includes public participation. This will necessarily require disclosure of relevant information that to date has been kept from the public, including critical information on costs and affordability.”
Makoma Lekalaka from Earthlife Africa said the judgment was a win for justice and the rule of law, showing the government cannot overrule regulation and legislation. “I think the events of the past few weeks shows this nuclear deal was about to bring a lot of turmoil in the country,” she said.
There has been speculation President Jacob Zuma's recent Cabinet reshuffle aimed to push the nuclear deal, which at an estimated cost of R1-trillion has raised fears it might cause rampant corruption. “The arms deal was a drop in the ocean (in comparison),” said Lekalaka.
“Basically if the government wants to go ahead they would have to start afresh and it would have to be a process South Africans are involved in,” she added on the impact of the judgment.
Government's 2010 Integrated Resource Plan calls for the building of 9,600 MW in nuclear power, while the draft 2016 version estimates the country will only need nuclear plants by 2037. Eskom, which was set to lead the procurement deals, issued a request for information in December and was expected to issue requests for proposals from suppliers in June.
DAILY MAVERICK
Comments
Namibian Sun
No comments have been left on this article