Press Release: Court Action

Earthlife Africa Jhb and SAFCEI draw the line on Joemat- Pettersson's secret nuclear deal

Earthlife Africa Jhb and Southern African Faith Communities' Environment Institute

15th October 2015

Embargoed until 12 noon 15th October 2015

Environmental justice organisations, Earthlife Africa Jhb (ELA-Jhb) and the Southern African Faith Communities Environment Institution (SAFCEI) are going to court in a bid to challenge government’s plan to procure 9600 MW of nuclear reactors.

On the 12th of October 2015 the two organisations issued their application papers out of the Cape Town High Court challenging various aspects of the nuclear procurement process.

In its papers, Earthlife Africa Jhb and SAFCEI maintain that the minister has failed to put the necessary processes in place to ensure that the nuclear procurement deal is conducted lawfully and meets the requirements of the constitution for a fair, equitable, transparent, competitive and costs effective process:

“Notwithstanding the vast sums of money to be committed, and the potentially long-term effect on the economy and for consumers of electricity and present and future generations of South Africans, the decision to proceed with procuring these nuclear power plants (the so called nuclear fleet), and to have concluded such procurement in the next few months, has occurred without any of the necessary statutory and constitutional decisions having been lawfully taken”

In brief, ELA-Jhb and SAFCEI are going to challenge the legality and constitutionality of:

• the intergovernmental agreement on strategic partnership and nuclear cooperation signed with Russia last year (Russian IGA);
• the tabling of the Russian IGA in Parliament under a provision that makes the agreement binding on the international plane without the need for parliamentary ratification;
• the tabling of outdated IGAs on nuclear cooperation entered into with the USA and Republic of Korea;
• the failure by the Minister in terms of s34 of the Electricity Regulation Act, 2006 (ERA), in consultation with NERSA and in accordance with a procedurally fair public participation process, to make a determination that new electricity generation capacity is required from nuclear power, and the percentage that is required;
• the failure by the Minister in terms of s34 of the Electricity Regulation Act, 2006 (ERA), read with s217 of the Constitution, in consultation with NERSA and in accordance with a procedurally fair public participation process, to require that the procurement of such nuclear new generation capacity must take place in terms of a specified procurement system that is fair, equitable, transparent, competitive and cost-effective;
• various decisions by the Minister and/or government to facilitate, organise, commence and/or proceed with the procurement of nuclear new generation capacity prior to making the necessary s34 nuclear determination and nuclear procurement system decision.

The respondents cited are the Minister of Energy Tina Joemat-Pettersson and President Jacob Zuma, the National Energy Regulator of South Africa (NERSA), the Speaker of the National Assembly and the Chairperson of the National Council of Provinces. No relief is sought against NERSA, the Speaker or the Chairperson.

Senior Programme Officer at Earthlife Africa Jhb. Makoma Lekalakala states: “Government’s ongoing efforts to procure 9600 MW of nuclear energy behind closed doors and without taking the public into its confidence marks a critical point in the post 1994 political landscape. Civil society’s attempts to obtain information on and answers to serious public interest questions regarding the potential negative impacts (such as impacts on electricity prices) of the procurement deal of the century have been frustrated and blocked at every turn. Lekalakala explains that this court case is not about the fact that nuclear energy is environmentally destructive and a false solution to the current electricity crisis, but is about lawful, constitutional, open and responsive governance. In a context of ongoing secrecy by government, the publics’ right to participate in decisions that have far- reaching implications for both current and future generations of South Africans needs to be respected and protected . “We are concerned citizens standing up against the unlawful and unconstitutional exercise of power by government, and in the public interest are going to court in an effort to protect our constitutional rights”.

At a board meeting in October 2014, SAFCEI elected to seek legal counsel to investigate the nuclear contracts which South Africa had signed.  Faith communities are gravely concerned at the government’s continued support for nuclear energy despite a lack of evidence that South Africa can afford it.

SAFCEI believes that this new nuclear power poses unacceptable environmental, social and economic risks to the people of South Africa and believes that concentrated focus on renewable energy is the key to alleviating poverty and addressing the developmental needs of the country.

“Ethical governance has to be the cornerstone of true democracy”, stated Liziwe McDaid, spokesperson for SAFCEI, “this new democracy must be protected from people in positions of power who act without regard to proper process, without accountability and risk bankrupting the country”.  McDaid added that: “Faith demands courage. As people of faith, we are concerned about the direction in which we are currently being led by our leadership. We request transparency, honesty and openness around the decisions being made for our future.”

The Russian nuclear agreement contains specific clauses that could have potentially devastating consequences for South Africa.  These include that South Africa will be liable for any environmental including radioactive accidents and any resultant economic consequences, while Russia will not have any liability. It also states that South Africa cannot procure nuclear services from any other entity without the consent of Russia.

SAFCEI board member and Buddhist Ani Tsondru comments that:

“In effect, this could result in massive economic and social impacts for South Africans.  We will be in debt to the Russian's nuclear corporation, and potentially suffering from a dual burden of insufficient funds to build hospitals, houses and schools, while having to foot the bill for environmental clean-up costs if there is an accident.  This is a gross injustice to the people of South Africa and must be stopped”.

The court application therefore seeks to set aside the framework agreements and asks for the court to hear the case with some haste, given the government’s statements in the media that it hopes to conclude the procurement process before the end of the year.

It is anticipated that the Minister of Energy and the President will respond to the application within 10 days.

ELA-Jhb and SAFCEI are represented by Adrian Pole Attorneys, assisted by the Legal Resources Centre (LRC).

An unsigned copy of the court papers is available for download at www.earthlife.org.za and www.safcei.org

21 Sept Nuclear draft notice of motion

20 September Nuclear founding affidavit

Read the Rule 16A notice here

For more information, please contact:

At Earthlife Africa Jhb:

Makoma Lekalakala

Senior Programme Officer

Tel: +27 11 339 3662

Cell: +27 82 682 9177

Email: makoma@earthlife.org.za

Website: www.earthlife.org.za

Dominique Doyle

Energy Policy Officer

Tel: +27 11 339 3662

Cell: +27 79 331 2028

Email: dominique@earthlife.org.za

Website: www.earthlife.org.za

At SAFCEI:

Liziwe McDaid

SAFCEI governance programme

Email: liziwe@mweb.co.za

0827315643

www.safcei.org