In 2014 SAFCEI became concerned by the indications given that South Africa’s energy future was being decided behind closed doors by foreign business interests. SAFCEI submitted several PAIA requests regarding this to the Department of Energy – which were refused on unsatisfactory grounds – and the Department of Finance, which said it had no knowledge of any agreement signed.
In October 2015, SAFCEI and Earthlife Africa Jhb (ELA) joined hands in taking on legal action against the government’s proposed nuclear deal. SAFCEI and ELA (Jhb) filed court papers against the Department of Energy (DoE), National Parliament, NERSA and President Zuma, challenging various aspects of the nuclear procurement process.
SAFCEI and ELA maintain that the government has not followed legal procedure in the procurement process and hasn’t met the requirements of the constitution for a fair, equitable, transparent, competitive and cost effective process.
Government delayed submitting their answering papers and when they finally did, further inconsistencies were exposed.
It was revealed that the DoE gazetted a 2013 Section 34 Determination (which is required before a nuclear procurement process can go ahead) on 21 December 2015, after keeping it secret for 2 years. Furthermore, the Department side-stepped the necessary Parliamentary approval and public participation process by tabling this determination under section 231.3 and not section 231.2 as was advised by the state law advisor.
SAFCEI and ELA’s lawyers submitted a supplementary affidavit in March 2016. However government delayed the process again, missing 3 deadlines, and compelling SAFCEI and ELA to issue a rule 30A notice, which gave the government until 31 May to respond. SAFECI and ELA’s attorneys received notice on 1 June that the government’s answering affidavit had been drafted and would be filed on 7 June.
When the answering affidavit was finally received, it was 700 pages long. SAFCEI and ELA lawyers waded through the pages, only to find that there were 10 missing documents that had been referenced in the affidavit. When lawyers requested these documents, the government refused, flying in the face of their promises of transparency and accountability.
It also came to SAFCEI’s attention during these proceedings that a uranium mining application had been made in the Karoo. This had been done with minimal public consultation. It was only when SAFCEI’s Science Advisor managed to raise the veil of silence surrounding this process that farmers were able to mobilise on the issue. Uranium mining is the “dirty under-belly of the nuclear cycle” and if the nuclear deal goes ahead, uranium mining will follow on its heels and have a negative impact on our Karoo for generations to come.
The announcement by the Minister on 7 September 2016 that the DoE will put out requests for proposals on a nuclear procurement process on September 30, once again shows the disregard government has for civil society, legal procedure and the court action proceeding against them.
But the moment finally arrived when SAFCEI and ELA-JHB signed the last affidavit (the replying affidavit) on 15 September 2016 and the first court hearing took place on the 13th and 14th December 2016 in Cape Town.
The government however continued with their tricks and revealed a new Determination at this hearing which made Eskom the nuclear procuring agent. This surprise move resulted in the court case being postponed until 22-24 February 2017 and government was ordered to pay punitive costs.
Before the next court hearing, SAFCEI and ELA-JHB focused on building a movement of support. With organisations like Right2Know, Justice & Peace, the Green Anglicans, AIDC, Popular Education, Koeberg Alert and many individuals, the #StopSecretTrillionRandDeals campaign was launched. OUTA, who had long supported us, also continued to mobilise with us.
By the time the next court hearing came around on 22-24 February 2017, there had been a Civil Society Speak Out, a SONA Occupy Bridges Action, and a march on the day of the court hearing. The court case was heard without a hitch and judgement reserved.
On the eve of Freedom Day and the anniversary of the Chernobyl nuclear disaster, justice was finally delivered when the Cape High Court declared key points in the nuclear procurement process unconstitutional and unlawful, and must therefore be set aside.
Whilst this is a landmark victory that sent a clear message to government, SAFCEI and ELA-JHB are also aware that this is not the end of the nuclear deal. We therefore continue to work for energy justice and accountable government in South Africa.
We invite all South Africans to join us in standing up for an energy future that is fair, equitable, transparent & cost competitive.
Find all SAFCEI’s press releases and court papers here.