The Southern African Faith Communities’ Environment Institut e(Safcei) and Earthlife Africa Johannesburg (Ela-JHB) were back in court this week in a bid to stop Minister of Energy David Mahlobo from fast-tracking another unconstitutional nuclear deal and the government and Eskom from commencing a tender process.
At the 11th hour the minister capitulated and gave his assurances to the court that he would abide by the law. We have secured undertakings given under oath by Mahlobo, Eskom and the acting director-general of the Department of Energy.
Their affidavits, handed to the court by their counsel, state that they will not procure new nuclear energy without a legal section 34 determination (under the Electricity Regulation Act) by the minister that the new nuclear energy to be procured is in fact required.
Importantly, the affidavits confirm that the National Energy Regulator of South Africa (Nersa) will have to agree with any determination that nuclear energy is required by the country, and will have to go through its own separate and independent public participation process before it can agree.
In light of the undertakings, the matter has been adjourned, meaning we can go back to court immediately if the minister, Eskom or department breach their undertakings.
The Western Cape High Court’s nuclear judgment in April this year, which ruled in our favour that the government’s nuclear deal was illegal, emphasised the need for meaningful public participation before any nuclear procurement could legally take place.
This has yet to take place, and the government and Eskom this week committed to it in court.
It was imperative for the undertakings to be given by the government and Eskom because many reports have suggested is intent on procuring nuclear, despite overwhelming evidence that South Africa neither needs nor can
afford it.
It has been reported that his team is working weekends to fast-track the electricity plan by November, so that procurement could begin immediately, according to Eskom’s spokesperson.
Safcei executive director Francesca de Gasparis said the actions prompted Safcei and Ela-JHB to send a letter to the minister and Eskom, asking them for undertakings that they would abide by the April court judgment.
Despite being given a week to respond, they failed to answer and thus left us with no choice but to bring an urgent application to protect the judgment and ensure no illegal nuclear procurement process commenced.
These undertakings were belatedly received on affidavit and, when the assurances were given to the court this week, it was possible for the matter to be resolved - for now - on that basis.
Safcei and Ela-JHB indicated in court that while accepting those assurances, they would not hesitate to return to court urgently if it transpired that the government was in any way taking steps in breach of the undertakings.
De Gasparis said: “We are pleased we have these sworn undertakings and that the matter is postponed, so the fast-tracking of nuclear energy procurement has been stopped.
“The minister has, under oath, said he would take no steps in relation to nuclear procurement without a lawful and procedurally fair section-34 determination.
“In other words, nobody - neither the government nor any state institution in South Africa - can commence nuclear procurement until Nersa has agreed with the minister how much, if any, nuclear power is required.
“Additionally, such a determination is only possible after a public participation process conducted by Nersa.”
“We now have to ensure that the government engages the South African public in a meaningful way. Token gestures, such as the minister’s indaba just announced for a couple of days next week and in one province only, will be contested.
“If needs be, we will rely on the legal system to once again support the rights of the people and avoid the devastating consequences for an already severely depressed economy, at a time when there is heightened suspicion about President Jacob Zuma’s government and its efforts to rush a nuclear deal.”
“We will continue to challenge any unlawful attempts to force through a nuclear deal until we are satisfied that the government and Nersa have created the space and opportunity for this to happen in strict compliance with the law.
“The energy/electricity issue is too important and the discussion must be accessible to all citizens in all nine provinces,” says De Gasparis.
Adonis writes on behalf of Safcei and Ela-JHB