Court case exposes web of secrecy in government nuclear dealings
Today, Earthlife Africa (ELA) and Southern African Faith Communities Environment Institute (SAFCEI) are in the process of filing and serving a supplementary founding affidavit in their court challenge against the Government’s proposed nuclear deal.
In the case of purchasing nuclear reactors for South Africa, Minister Joemat Petterssen has gone on record saying that there will be a transparent, fair process when it comes to the nuclear procurement. But documents uncovered by SAFCEI and ELA as part of their court action reveal a very different story.
Originally, the government announced that the Russian agreement was a done deal but later backtracked after public outcry, and now, according to President Zuma, claims that South Africa would build nuclear reactors “on a scale and pace that our country can afford”. ELA/SAFCEI maintain, as per our founding papers, that the Russian agreement was entered into unlawfully but makes internationally binding commitment to buy a fleet of nuclear reactors from Russia.
However, from the state law advisor’s explanatory memorandum, prepared in November 2013, but only revealed now, it is evident that the Russian agreement is to build reactors and an enrichment plant, and that other subsequent agreements would cover the details of how it is to be financed, not if it would go ahead. The Russian Agreement would obviously have significant economic and other implications for the country and, therefore required parliamentary approval.
According to the records provided to SAFCEI/ELA, the state law advisor also advised that the agreement required parliamentary approval, i.e. should be tabled under section 231.2 of the constitution. The minister tabled it in parliament in terms of section 231.3, thereby sidestepping the public participation that would have been required during the process of parliamentary approval.
There is no explanation of why the Minister chose to ignore the state legal adviser’s advice.
“Major warning lights should be flashing” stated Liz McDaid, SAFCEI representative. “The implications of the manner in which the Minister tabled the agreement, against the advice of her own legal advisors, is that it locked South Africa into a twenty year deal with Russia, without any public debate over whether the country can actually afford it or not. Such a consultation process, including public hearings, could have taken place had the Russian IGA been tabled as required by section 231.2 of the constitution, where parliamentary approval is required”.
The nuclear deal has been characterised by secrecy and lack of transparency. The scanty records we do have reveal that minister of Energy made a determination (in terms of section 34 of the Electricity Regulation Act) that new nuclear energy was needed, and then kept it secret for two years, only releasing it finally in December 2015. One of the reasons for releasing when they finally did, in December 2015 was to undermine the SAFCEI/ELA court case.
Section 34 of the Act requires that NERSA make decisions in concurrence with the Minister of Energy. Such decisions must be in the public interest, require public participation and must be publicly available. The records finally released show NERSA’s failure to reveal that they and the Dept. of Energy had between them agreed to procure nuclear power. SAFCEI/ELA legal team asked NERSA directly, before launching the court action, whether any Section 34 determination had been made. Neither NERSA nor the Minister admitted until this litigation, that the determination had in fact been made in 2013.
“NERSA is supposed to be the regulator to safeguard the public interest, but the manner in which our lawyers were forced to extract information from NERSA, rather than their giving it to us voluntarily, does them no honour” stated Earthlife’s representative Dominique Doyle.
According to the records obtained during this litigation, NERSA based their decision on the outdated IRP2010, but acknowledged overstated electricity demand forecasts, doubling of nuclear costs, and negative impact on future electricity prices, but then still approved the nuclear build.
SAFCEI/ELA are now seeking to set aside this decision through this court review.
The court case against the nuclear deal has been characterised by delays. The government, in the form of the Department of Energy (DoE), the President, and the National Energy Regulator of South Africa (NERSA), have acted with glacial slowness and failed to supply the relevant government records according to the timeframes of the rules of court. SAFCEI/ELA lawyers have racked up thousands of Rands of additional costs in chasing up government respondents. Therefore SAFCEI/ELA are now asking for punitive costs to be awarded against the government respondents because of this unnecessary effort caused by misconduct of government.
“Governance processes are in place to ensure ethical, fair, and transparent decision making” stated SAFCEI Executive Director, Buddhist Venerable Tsondru. She adds, “The government’s failure to follow the rule of law in this nuclear case creates a deeply concerning impression that these officials and politicians consider themselves above the law”.
New nuclear reactors tend to be far over budget and take years longer than planned, for example, as shown by the French Flamanville plant which is years behind schedule and whose budget has swelled from 3 billion euros to 10.5 billion euros. It has also been found to have serious flaws in the plant which might mean that the reactor vessel would have to be broken out of the reactor building, leading to further delays and increasing costs.
“The sustained pressure by our legal team to force government to reveal its motives has indicated that the DoE minister ignored her own advisors and deliberately took a course of action that would prevent any transparent and credible interrogation of the nuclear deal” stated Dominique Doyle of Earthlife Africa. “However, there is a long way to go to uncover the secret and dirty dealings going down in this nuclear deal”.
ISSUED BY SAFCEI/ELA JHB 30 March 2016
For further information, please contact
Ms Liz McDaid (SAFCEI) Ms Dominique Doyle ( Earthlife Africa Jhb)
Cell: 082 731 5643 Cell: 079 331 2028
Note for journalists:
On the 12th of October 2015, Earthlife Africa Jhb (ELA Jhb) and the Southern African Faith Communities’ Environment Institute (SAFCEI) originally 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/ .
The record subsequently obtained by SAFCEI/ELA in terms of the rules of the court. In February 2016, Government correspondence provided to Earthlife Africa Jhb 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 nuclear section 34 determination made in 2013 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, ELA/SAFCEI are also seeking to have this determination reviewed and set aside.
Our legal case revolved 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.
Aspects of the case have been amended as new information has been uncovered doing the court process. Based on this new information, SAFCEI/ELA has amended the notice of motion and supplemented the founding affidavit.
In the original affidavit, 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 IGA was intended to “legally fix” a strategic partnership between Russia and South Africa, the conditions of that agreement (eventually signed on 22nd September 2014) include a firm commitment to build 9600MW, indemnified Russia from liability for damages in the event of a nuclear accident inside South African borders, and gives a veto to Russia regarding the use of any other nuclear suppliers. It is supposed to remain in force for 20 years.
- 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.
Earthlife Africa Joburg www.earthlife.org.za
Lawyers representing ELA-JHB and SAFCEI are Adrian Pole and Associates.