Government attempts to undermine legal case against nuclear
Government correspondence provided to Earthlife Africa Jhb (ELA) and the Southern African Faith Communities’ Environment Institute (SAFCEI) lawyers, as part of our court action against the procurement of new nuclear reactors, reveals that government deliberately attempted to undermine our court case. When government gazetted a 2013 nuclear section 34 determination in December 2015, it was to pave the way for the suspect Russian deal. However, because this nuclear section 34 determination was made without public participation and was kept secret for two years, government’s plan has backfired, and our case has now been strengthened.
ELA and SAFCEI have taken the government to court over the Department of Energy’s (DoE) proposed nuclear programme. One key part of the litigation was to seek an order that the government is required to take a nuclear section 34 determination, in consultation with the Energy Regulator, with the necessary public participation. Even though our lawyers wrote to the Minister of Energy and the Energy Regulator querying the existence of such a determination, it was kept secret.
On 21 December 2015, the DoE gazetted the 2013 section 34 determination, supposedly allowing the Department to go ahead and start a procurement process to buy nuclear reactors.
According to the DoE’s note that has recently come into our possession, one reason that the secretive determination was released was to undermine our court action. This is apparent from the following extract from an official memo from the Minister of Energy, Ms Tina Joemat-Pettersson and the DG of DoE, Mr Thabane Zulu, dated 1 December 2015 (our added emphasis):
“3.5 The publishing of the determination has become urgent as the Department is facing litigation by Earthlife Africa Johannesburg and the Southern African Faith Communities Environment Institute in the High Court, Western Cape Division. In the Notice of Motion (annexure 5) the applicants claim that the Minister has not published a Section 34 determination nor conducted a public participation process and therefore any decisions to facilitate, organise, commence or proceed with the procurement of nuclear new generation capacity is unlawful.
3.6 During a meeting of 27 November 2015, to brief legal counsel defending the Department against the Applicant (Earth Life Africa and the Southern African Faith Communities Environment Institute). The legal counsel requested to include the determination when filing the record for the court papers. The legal counsel advised that the inclusion of the determination in the answering affidavit will weaken the case for the applicant as it will show that their application is based on false assumption.”
Liz McDaid from SAFCEI states, “If we had not gone to court, it seems the public would never have known about this crucial piece of the nuclear deal approval process”.
Supporting documentation provided to SAFCEI and ELA’s legal team on the 16th February 2016 revealed this deliberate attempt by DoE to keep the public in the dark about its nuclear procurement process.
The documents received by the legal team on 16th February 2016 were supposed to have been provided to the NGOs 15 days after the initial court application papers of 12th October 2015. Instead three months of obfuscation, delays and lack of transparency took place as government withheld the section 34, which had been approved in 2013 by the then Minister of Energy, Mr Ben Martins.
“Our main reasons for challenging the government’s intended nuclear deal were that government failed to follow the procedures laid down to prevent mismanagement and corrupt practice”, said ELA spokesperson Dr Tristen Taylor. “There should have been public consultation and so this secret determination is unconstitutional and worthless.”
Despite being asked about the existence of a nuclear section 34 determination, Government ignored the request and kept the nuclear section 34 determination secret for two years, and deliberately withheld it, forcing ELA and SAFCEI to incur the expenditure of going to court to get the DoE to release it. “Making the determination without public consultation, and in secret, and then keeping it hidden for two years is unconstitutional and illegal,” says ELA and SAFCEI lawyer, Adrian Pole.
SAFCEI and ELA JHB are now intending to ask for this unlawful 2013 nuclear section 34 determination to be reviewed and set aside.
“The idea that gazetting the Section 34 would undermine our court case has failed,” stated Liz McDaid, “It has rather strengthened our case.”
“The attitude of automatic secrecy adopted by the government is unacceptable,” stated Dr Taylor of ELA, “throughout this court action, DoE has been uncooperative, obstructive and failed to behave transparently.”
“There is an arrogant assumption that South Africans have no right to such critical information about nuclear projects that impact on our future until after it is too late to prevent the deal. This raises grave concerns about the government’s commitment to constitutional rights, transparency and public participation,” stated Ani Tsondru, SAFCEI’s newly appointed Executive Director.
SAFCEI’s legal team is currently sifting through the documents provided by DoE, examining the evidence to determine further support for our case.
ISSUED BY SAFCEI/ELA JHB 2 March 2016
For further information, please contact
Liz McDaid (SAFCEI)
Dr. Tristen Taylor
Earthlife Africa Jhb
Cell: 084 250 2434
Note for journalists:
On the 12th of October 2015, Earthlife Africa Jhb (ELA Jhb) and the Southern African Faith Communities’ Environment Institute (SAFCEI) launched legal proceedings in the Cape Town High Court on South Africa’s planned procurement of 9600MW. Our founding legal papers have been served on the following respondents: The Minister of Energy, the President of South Africa, the National Energy Regulator of South Africa (NERSA), the Speaker of National Assembly and the Speaker of the National Council of Provinces.
Our founding affidavit can be downloaded at: http://earthlife.org.za/2015/10/in-the-high-court-of-south-africa-western-cape-division-cape-town-3/ and on http://safcei.org/latest-update-on-our-nuclear-court-action/ .
Our legal case revolves around government’s decision to proceed with procuring nuclear power plants (a nuclear fleet of between 6 to 8 new nuclear reactors), and any intention to conclude such procurement in the next few months, is occurring without any of the necessary statutory and constitutional decisions. In brief, ELA-Jhb and SAFCEI are challenging the legality and constitutionality of:
- the Inter-Governmental Agreement on strategic partnership and nuclear cooperation signed with Russia last year (Russian IGA);
- the tabling of the Russian IGA in Parliament under a provision that makes the agreement binding on the international plane without the need for parliamentary ratification;
- the tabling of outdated IGAs on nuclear co-operation entered into with the USA and Republic of Korea;
- the failure by the Minister in terms of s34 of the Electricity Regulation Act 2006, in consultation with NERSA and in accordance with a procedurally fair public participation process, to make a determination that new electricity generation capacity is required from nuclear power, and the percentage that is required;
- the failure by the Minister in terms of s34 of the Electricity Regulation Act 2006 (ERA), read with s217 of the Constitution, in consultation with NERSA and in accordance with a procedurally fair public participation process, to require that the procurement of such nuclear new generation capacity must take place in terms of a specified procurement system;
- various decisions by the Minister and/or government to facilitate, organise, commence and/or proceed with the procurement of nuclear new generation capacity prior to making the necessary s34 nuclear determination and nuclear procurement system decision.
The court action has already received considerable media attention in South Africa and will continue to do so. Large scale demonstration in Johannesburg/Pretoria have been matched by weekly anti-nuclear demonstrations in Cape Town.
Earthlife Africa Johannesburg
Lawyers representing ELA-JHB and SAFCEI are Adrian Pole and Associates, advised by the Legal Resource Centre.