Environmental activists celebrate outside the Western Cape High Court on Wednesday after the court found government's nuclear procurement processes to be unlawful and unconstitutional. PHOTO: Catherine Rice/ANA
Cape Town – Opposition parties and activists have hailed as a victory the Western Cape High Court ruling on Wednesday that has effectively called to a halt government's controversial nuclear power expansion programme.
Judge Lee Bozalek, in response to an application from environmental groups, set aside two determinations by former energy minister Tina Joemat Pettersson, reached respectively in 2013 and 2016, that paved the way for Eskom's current process of procuring an additional 9 600 megawatt of nuclear power.
Bozalek faulted the National Energy Regulator of South Africa for failing to act in the public interest by approving the 2016 determination within days, without soliciting any public input.
The Democratic Alliance's energy spokesperson Gordon Mackay said the ruling was a reprieve for a country that would have been saddled with a nuclear programme it cannot afford. "The court's findings have greatly narrowed government's ability to legitimately procure additional nuclear capacity," he said.
"The DA will now work to ensure that Eskom halts all work on the nuclear procurement process and will seek to guarantee that no Request for Proposal (RFP) is issued. Any attempts by Eskom to subvert the decision of the court will be challenged by the DA."
Bozalek also found that the utility's request for information on potential bidders in December was unlawful, as was the country's nuclear co-operation agreement with Russian state nuclear group Rosatom — which was seen as the frontrunner to secure a contract to build new nuclear power plants. The ruling also set aside similar agreements with the USA and Korea.
The Economic Freedom Fighters welcomed the setting aside of the accord, saying it would have contributed to the leeching of state resources by private individuals.
"The declaration of the agreement to be unconstitutional is a victory against kleptocracy and state capture by the Gupta family," the party said. The DA's Mackay said in simple terms, the court ruling meant that since none of the government's decisions to procure more nuclear power plants were legal, the procurement process must stop.
"The court has ruled that all Requests for Information (RFI) and potential RFPs pursuant to the outdated Integrated Resource Plan (IRP) and Section 34 Ministerial Determinations are set aside with immediate effect. This means that Eskom must cease all work being done on nuclear procurement with immediate effect."
Eskom had been expected to issue a formal Request for Proposals by the end of June. The case was brought by Earthlife Africa Johannesburg (ELA-JHB) and the Southern African Faith Communities' Environment Institute (SAFCEI) against government in 2015.
Earthlife activists were jubilant after hearing the ruling and danced in the rain outside the high court. Adrian Pole, a lawyer for the two applicants, said the judgment meant that there was no decision in terms of the relevant empowering statute that new nuclear generation capacity is needed and should be procured.
"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." SAFCEI said the ruling held special symbolic significance as it came on the 31st anniversary of the Chernobyl nuclear disaster.
"SAFCEI and ELA-JHB based their case on the South African Constitution, which states that when it comes to far-reaching decisions, such as the nuclear deal, which would alter the future of our country, government is legally required to debate in Parliament and do a thorough, transparent and meaningful public consultation," SAFCEI's Liz McDaid said.
Critics have charged that the cost of the nuclear build programme could be as high as one trillion rand, a figure the government has dismissed. It was seen as one of the key points in tension between the presidency and National Treasury in recent years, and a contributing factor to President Jacob Zuma's decision to fire Pravin Gordhan as finance minister last month.
African News Agency