By Lameez Omarjee and Matthew le Cordeur, this was published on Fin24
Cape Town – Civil society moved a step closer on Thursday in its drawn out court action to have the nuclear deal set aside with the submission of its replying affidavit.
“The next step is to set a court date,” said Safcei spokesperson, Liziwe McDaid.
Earthlife Africa Johannesburg (ELA) and the Southern African Faith Communities’ Environment Institute (Safcei) are engaged in legal proceedings against the Department of Energy over agreements signed with Russia’s nuclear firm Rosatom ahead of the official procurement process.
On March 30, the organisations alleged that legal documents in their possession indicate that South Africa did sign a binding nuclear deal with Russia.
They said “the Russian agreement was entered into unlawfully, but makes (an) internationally binding commitment to buy a fleet of nuclear reactors from Russia”.
From the state law adviser’s explanatory memorandum that was prepared in November 2013 but only revealed recently to Safcei/ELA, “it is evident that the Russian agreement is to build reactors and an enrichment plant”, the organisations said. Fin24 saw the memo.
They said other subsequent agreements would “cover the details of how it is to be financed, not if it would go ahead”.
The allegations will be tested in court to determine whether the intergovernmental agreement South Africa signed with Russia in 2014 is binding, and whether it is legally bound to use only Russian nuclear reactors in the procurement process.
In a report by the City Press the organisations indicated that the nuclear project would have negative socioeconomic impacts, including wide-scale job losses and accelerated poverty levels.
However, earlier this week the Nuclear Industry Association of South Africa said it was behind the project because it would create employment and development in communities.
On Thursday Safcei and ELA said in a statement they have prepared a replying affidavit which responds to the government’s 400 page answering affidavit, reiterating their key points of argument.
“Government appears to rely on outdated information and media statements to back up its claims that there is nothing wrong with the nuclear deal,” said ELA’s Makoma Lekalala.
At the heart of the case is the lack of transparency at the onset of the nuclear procurement process, Earthlife Africa and Safcei argue.
They contend that this case is about the requirements for lawful, procedurally fair, rational, statutory and constitutional decision making, in relation to the particular decision by the South Africa government to procure nuclear power under a specific legislative scheme.
Issues at stake are: The distinction between policy and statutory determinations; the constitutionality and lawfulness of the 2013 s 34 Determination; The unconstitutional signature and tabling of the Russian IGA; and the unconstitutional tabling of the US and South Korean IGAs.
The civil society bodies argue that the section 34 determination to procure nuclear energy was taken in 2013 and kept secret until gazetted in December 2015.
WATCH: OUTA on what the Nuclear deal means for SA
In another instance of non-transparency, the legal team acting for ELA and Safcei found reference to a number of documents that had not been provided. The legal team requested them, and the majority were refused, with government claiming that “certain of the documents were not referred to in the answering affidavit (when they clearly are), yet they, inconsistently, claimed that these self-same documents were privileged given their contents”.
Further evidence of secrecy is the government’s legal response relies heavily on media statements to justify their actions, failing to provide minutes of meetings or correspondence that might indicate a rational decision-making process, ELA and Safcei argue.
“Government’s slow response to the court challenge (the founding affidavit was launched on October 15, 2015, and the government only provided their answering affidavit, after being served with a section 30A notice, on about June 7, 2016) must be contrasted with the government’s steaming ahead with the procurement process.
“The Minister has indicated to parliament that she is going ahead issuing a request for proposals for the procurement of nuclear power by the 30 September.
“Given the massive state financial resources that will be tied up in this nuclear deal, we would think that the public interest would be best served by delaying the nuclear deal until the courts have ruled,” said Lekalala.
Rosatom: Not a done deal
Russian nuclear firm Rosatom told Fin24 in 2015 that its press release in 2014 incorrectly alluded to a done deal, but said this was far from the truth.
“We cannot hook up with a politician and make a deal (that will span) generations,” Viktor Polikarpov, Rosatom’s head of sub-Saharan Africa operations, said in February.
Energy Minister Tina Joemat-Pettersson also denied the deal. “We are committed to transparency,” she said in 2015. “We are not going to compromise our country in any way.”
In the 2014 Rosatom press release Joemat-Pettersson is quoted as saying: “This agreement opens up the door for South Africa to access Russian technologies, funding, infrastructure, and provides (a) proper and solid platform for future extensive collaboration.”