The High Court has declared void Eskom’s Request for Information from prospective bidders for its nuclear programme. Photo: Reuters
Cape Town - In her first briefing to MPs, Energy Minister Mmamaloko Kubayi said on Tuesday she has yet to obtain clarity on the implications of the High Court ruling that invalidates the nuclear build procurement process.

Kubayi told Parliament’s portfolio committee on energy that her department’s legal team would consider Judge Lee Bozalek's judgment in the Western Cape High Court last week.

She stressed that the ruling did not push nuclear procurement off the table but merely faulted the process that was followed to facilitate it.

Kubayi expressed concern about the implications of the court setting aside two ministerial determinations by her predecessors that laid the foundation for Eskom to issue a request for information from prospective bidders.

“From where I am reading, the judgment does not say you can’t do nuclear; the judgment says the process followed was flawed. So it’s a process issue.”

The minister said her options could include an appeal or an application to court for a declaratory order.

“I’m saying we have to look at does that translate that we have to dump what we have in the APP (annual performance plan). I don’t think so,” she said, referring to the plan’s provision for preparing for nuclear procurement.

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Kubayi said the preparatory work was a step the department would have to conclude, “whether we do it now, or we do it later”.

However, speaking after the briefing, she denied she was determined to proceed with plans to expand South Africa’s nuclear power capacity by 9600 megawatts.

“I have not decided that yet. I have not made up my mind,” Kubayi told ANA.

She assured the committee that, whatever the decision on nuclear, the department was committed to ensuring transparency, and she would be happy if a public debate were held on whether the country needed additional nuclear reactors.

“We will definitely be transparent in the process. We will be able to explain what we are doing, so I don’t think there is any intention of hiding.”

DA energy spokesman Gordhan Mackay said it was patently clear that the minister did not plan to halt the nuclear procurement process, and there were indications that Eskom was planning to push ahead with a Request for Proposals this year.

Kubayi told MPs it was unfair to suggest that she was in favour of nuclear and opposed to renewable energy. However, she openly conceded that last month she had called a halt to the signing of agreements with independent power producers. Kubayi said she did this because she had not been in office a fortnight and needed to give proper thought to the deals.

A thorough departmental process would look at policy options, including renewable energy, and deciding whether they were “value for money” and in the best interests of the country.

Judge Bozalek set aside two determinations on nuclear procurement gazetted by former energy minister Tina Joemat-Pettersson in 2015 and 2016 as unlawful and unconstitutional, and invalidated nuclear co-operation pacts South Africa signed with five countries, including Russia.

The determinations were validated by the national energy regulator Nersa, but the court held that its concurrence was irrational, partly because it did not invite any public input.

The court ruling effectively declared void Eskom’s RFI that closed at the end of April.


Liz McDaid from the Southern African Faith Communities’ Environment Institute, which, with Earthlife Africa, launched the court challenge against the nuclear expansion programme, agreed that the case had been about whether the government had followed a constitutional process.

The two organisations had built their argument on the constitutional requirement for a transparent parliamentary process and meaningful public participation.

Critics of the contested nuclear build say the country does not need more nuclear plants and cannot afford the price tag, which some put at R1 trillion.

Kubayi rubbished that figure, saying she did not know where it came from.