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16 September 2016
“See you in court” Civil society steps closer to court room – nuclear court action replying affidavit finalised
Yesterday, civil society finalised their replying affidavit in the last steps of a drawn out legal challenge to the government’s nuclear deal. “The next step is to set a court date” stated SAFCEI spokesperson, Liziwe McDaid, “and let’s see justice prevail for the people of South Africa”.
Earthlife Africa Johannesburg, and SAFCEI have prepared a replying affidavit which responds to the government’s 400 page answering affidavit, reiterating their key points of argument. “Government appears to rely on outdated information and media statements to back up its claims that there is nothing wrong with the nuclear deal” stated ELA’s deponent, Ms Makoma Lekalakala.
Earthlife and SAFCEI contend that this case is about the requirements for lawful, procedurally fair, rational, statutory and constitutional decision making, in relation to the particular decision by the South Africa government to procure nuclear power under a specific legislative scheme.
Issues at stake are: The distinction between policy and statutory determinations; the constitutionality and lawfulness of the 2013 s 34 Determination; The unconstitutional signature and tabling of the Russian IGA; and the unconstitutional tabling of the US and South Korean IGAs.
Earthlife Africa Jhb and SAFCEI outline in their papers how non transparent the process around the nuclear procurement has been. The section 34 determination to procure nuclear energy was taken in 2013 and kept secret until gazetted in December 2015. In another instance of non-transparency, the legal team acting for ELA and SAFCEI found reference to a number of documents that had not been provided. The legal team requested them, and the majority were refused, with government claiming that “certain of the documents were not referred to in the answering affidavit (when they clearly are), yet they, inconsistently, claimed that these self-same documents were privileged given their contents. This of course demonstrates that these documents were clearly referred to in the affidavit, were able to be identified, and are in the respondents’ possession, since the respondents had considered these documents and had, based on their contents, sought to claim privilege over them.”. Further evidence of secrecy is the government’s legal response relies heavily on media statements to justify their actions, failing to provide minutes of meetings or correspondence that might indicate a rational decision-making process.
Government’s slow response to the court challenge (the founding affidavit was launched on 15th October 2015, and the government only provided their answering affidavit, after being served with a section 30A notice, on about 7th June 2016) must be contrasted with the government’s steaming ahead with the procurement process. The Minister has indicated to parliament that she is going ahead issuing a request for proposals for the procurement of nuclear power by the 30th September. “Given the massive state financial resources that will be tied up in this nuclear deal, we would think that the public interest would be best served by delaying the nuclear deal until the courts have ruled,” stated ELA’s Lekalakala.
“This stereotype ostrich like behaviour of ignoring things you don’t like, seems to indicate that government is prepared to bypass any legal process, in its desperation to push this deal through, and reach a point of fait accompli”, stated Liziwe McDaid, spokesperson for SAFCEI, “ “Such behaviour is not rational and cannot be in the country’s best interest”.
For further information, please contact
Ms Liziwe McDaid (SAFCEI) Ms Dominique Doyle (ELA-Jhb)
Cell: 082 731 5643 cell: 079 331 2028
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