NGOs make urgent high court application to halt rushed nuclear deal

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Yesterday, Earthlife Africa Johannesburg (ELA-JHB) and the Southern African Faith Communities’ Environment Institute (SAFCEI) launched an urgent High Court  application in a further attempt to halt what appears to be a rush by government in decision-making on the nuclear energy deal. This follows last week’s request to the Ministers of Energy and Public Enterprises, NERSA, and Eskom to confirm their commitment to following the legal process of public consultation over any proposed nuclear deal.

Government had till Monday 13 November to respond, but by Wednesday had supplied no meaningful responses and the two organisations are now having to ask the court to order the relevant parties to comply.

ELA-JHB’s Makoma Lekalakala, who recently returned from the COP23 climate conference in Germany says, “We are part of an international movement against dirty nuclear energy, where we have seen governments enter into nuclear deals that are not in the interests of their people. That must not happen in South Africa.”

The Minister of Energy, David Mahlobo’s utterances in the press recently, imply that the finalisation of the Integrated Resource Plan (IRP) and the nuclear programme are being fast-tracked, yet the government has failed to implement the necessary public participation required by the court judgement that was delivered on 26th April 2017.

ELA-JHB and SAFCEI are asking the court to declare firstly, that no steps – including the issuing of Request for Proposals or Request for Information - may be taken for the procurement of new electricity generation capacity, derived from nuclear power. Steps may not be taken in the absence of a lawful determination in terms of s34 of the Electricity Regulation Act (ERA), in concurrence of the National Energy Regulator (NERSA), following a procedurally fair public participation process.

This determination would have to specify that new nuclear energy electricity generation is needed, and what percentage of South Africa’s energy mix it would fulfil. This is notwithstanding news reports indicating that the Minister of Finance, Malusi Gigaba (ahead of his medium-term budget speech) stated that the economy cannot afford nuclear at the present moment and that there are no intensive energy users taking up even the current generation capacity.

Secondly, the court will also be asked to direct the Minister of Energy and Eskom to provide written reports on what steps they have taken, and the future steps they intend taking, in relation to the procurement of new electricity generation capacity derived from nuclear power. Should the evidence confirm that the Minister and/or Eskom have taken any steps that are in contempt of the judgment from April this year, the court will be asked to grant the applicants’ leave to ask for an order of contempt of court.

“We cannot have unaccountable government”, said Liz McDaid of SAFCEI. “We have now seen overwhelming evidence emerging into the public arena that shows how state institutions have been captured and how money that is meant to deliver services to South Africans has gone into the pockets of looters. The nuclear deal, purportedly worth over R1 trillion, is yet another one of these deals. South Africa cannot afford, nor does it need new nuclear power generation capacity. I think South Africans have had enough”.

ELA-JHB and SAFCEI are civil society watchdogs and the Minister of Energy’s determination to continue with the nuclear deal, and at such speed, raises alarm bells.  Ethical, transparent governance is the cornerstone of democracy and we cannot allow an unlawful and unconstitutional decision-making process to happen.


Issued by Erna Curry and Natasha Adonis, on behalf of SAFCEI and ELA-JHB.

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The court papers are available to view here: /uploads/Earthlife-Africa-JHB-SAFCEI-v-Min-of-Energy-Others-Urgent-Application-reduced-size.pdf