Civil society claims another court victory in the nuclear deal
29 November 2017
Today, the Southern African Faith Communities’ Environment Institute (SAFCEI) and Earthlife Africa Johannesburg (ELA-JHB) were back in court in a bid to stop the latest Minister of Energy, David Mahlobo, from fast tracking another unconstitutional nuclear deal, and 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 now secured undertakings given under oath by Mahlobo, Eskom, and the Acting Director-General of the Department of Energy (DoE). Their affidavits, handed up in the Court by their counsel, are that they will take no steps to procure new nuclear energy without a lawful 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 NERSA will have to agree with any determination that nuclear energy is required by South Africa, 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 DoE breach their undertakings.
According to the April 2017 nuclear judgement handed down by the Western Cape High Court in our favour – which ruled government’s nuclear deal unlawful – particular emphasis was placed on the need, before any nuclear procurement could lawfully take place, for meaningful public participation. This has yet to take place, and the government and Eskom have today committed to it in court. It was imperative for those undertakings to be given by government and Eskom, because a number of reports have suggested over recent weeks that the new Minister of Energy is intent on procuring nuclear, despite overwhelming evidence that SA does not need and cannot 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.
According to SAFCEI’s Executive Director, Francesca de Gasparis, these actions prompted SAFCEI and ELA-JHB to send a letter to the Minister and Eskom, asking them for undertakings that they will abide by the April court judgement. 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 judgement and ensure no unlawful nuclear procurement process commenced. These undertakings were belatedly received on affidavit, and when the assurances were given to the Court today 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.
Francesca de Gasparis says, “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 that he will 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 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 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 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.
For more information, contact Francesca de Gasparis from SAFCEI on 0787 395 272 or
Makoma Lekalakala from Earthlife Africa Johannesburg 082 682 9177.
The court papers can be downloaded here: http://safcei.org/wp-content/uploads/2017/11/Earthlife-Africa-JHB-SAFCEI-v-Min-of-Energy-Others-Urgent-Application-reduced-size.pdf
The Energy Minister’s affidavit can be donwload here: http://safcei.org/wp-content/uploads/2017/11/2017-11-27-Energy-Minister-Affidavit.pdf