The brinkmanship over government’s controversial decision to procure up to 9,600 MW of nuclear power capacity is set to be exposed in the High Court in Cape Town from February 22 to 24.
Two applicants in the case, Earthlife Africa and the Southern African Faith Communities’ Environment Institute (SAFCEI), are challenging Energy Minister Tina Joemat-Pettersson’s determination to go the nuclear route.
At stake is the largest procurement in the history of South Africa which could cost upwards of R1 trillion, which is roughly the size of the national Budget.
Critics warn that this deal has the potential to bankrupt the country and that there is enormous room for high-level corruption.
In terms of the Energy Regulation Act (ERA), the minister is empowered to take such decisions, known as a section 34 determination, regarding the amount and type of South Africa’s future energy supply.
The original nuclear determination was made — in secret— by then Minister Ben Martins in 2013 and suddenly gazetted by Joemat-Pettersson in December 2015.
It was this 2013 decision — nominating the Department of Energy (DOE) to procure 9,600MW of new nuclear power — that the litigants sought to have set aside.
They argued that a decision of such magnitude could not proceed without an open and transparent process of public consultation, something the DoE had failed to do.
Earthlife and SAFCEI also wanted the court to declare unlawful a number of international agreements on nuclear energy that the government signed with the US, South Korea and most importantly, Russia.
The agreement signed with Russia in September 2014 is substantially more detailed than those signed with the US and South Korea, and lays out the specific type of Russian technology to be used in the procurement of nuclear power plants.
In terms of the agreement, Russia would also be indemnified from any liability arising from a potential nuclear accident.
Earthlife and SAFCEI argued the agreement with Russia was premature as it amounted to the first stages of procurement.
They said the detailed nature of the agreement precluded an open, fair and transparent procurement process and appeared to suggest the outcome was predetermined to favour Russia.
There was a sudden twist when the parties met in court for the first time in December 2016.
On December 13, the first day of the hearings, the government’s legal team revealed that Joemat-Pettersson moved the goal-posts by purporting to issue a brand-new determination which would shift the responsibility for procurement from the Department of Energy to Eskom.
The determination was published the following day.
By appearing to replace the original determination that the applicants were challenging, this new 2016 determination derailed proceedings.
Earthlife and SAFCEI requested a postponement to address the new determination, which was granted along with a cost order against the minister.
In the meantime, Eskom has forged ahead with a Request For Information (RFI) for the 9,600 MW nuclear programme.
The power utility describes this as a “stand-alone information-gathering exercise”.
Joemat-Pettersson has submitted an affidavit for this week’s hearing in which she records the process that led up to the revised 2016 determination.
The minister’s affidavit states that in September 2016 she received legal advice which prompted the decision to issue a new determination designating Eskom as the procuring agency instead of the DoE.
However, the legal opinion itself was not submitted to the court.
Earthlife and SAFCEI now argue that the timing of the legal advice and the determination that followed suggest a deliberate attempt to throw a spanner in the works and side-step legal proceedings.
In their final court papers they note: “It seems then that the 2016 Determination was a deliberate attempt by the Minister to avoid the clear issues identified in the applicants’ papers, although this has not been acknowledged.”
Joematt-Pettersson’s papers claim the advice from her lawyer was to the effect that the DoE was not allowed to procure on behalf of other state entities, such as Eskom, without their consent.
It was then supposedly indicated by Eskom that it would not consent to the DoE procuring on its behalf.
Earthlife and SAFCEI question why the minister did not take Eskom to task for its refusal to cooperate, but instead rewarded the company by making it the procuring authority, despite outstanding questions as to how the troubled utility would afford this hugely expensive project.
Thyspunt, near St Francis Bay is the preferred site for the construction of the first nuclear power station according to the Impact Studies commissioned by Eskom.
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