No more murky nuclear deals after historic court judgment

The finding declaring many of the actions undertaken so far in the nuclear new build deal illegal has huge implications. Alison Tilley unpacks them

'What next?" That's the question activists from the Southern African Faith Communities' Environment Institute have been asked about the nuclear deal in the wake of the historic ruling by a bench consisting of judges Lee Bozalek and Elizabeth Baartman in the High Court in Cape Town.

On Wednesday the court found a number of key processes thus far concluded regarding the proposed nuclear new build deal to be unlawful.

The deal in question is the proposed purchase of nuclear power plants by the South African government from the Russian government, around which there have been a range of concerns and some controversy.

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First, there is a question as to whether we need additional nuclear capacity or whether we can manage our needs with a mix of coal and renewable energy such as that derived from wind or solar power.

Second, the concern is that any deal entered into with Russia will potentially be an opportunity for self-interested financial gain through corruption on the part of both Russian and South African officials.

Does the court's ruling mean nuclear is now off the table?

The answer must be found in the judgment, which sets out in some detail the many ways in which the deal is flawed.

One critical part of the decision-making process on procuring nuclear energy was the decision that new electricity generation capacity is required for the country.

Such a decision is the responsibility of the minister of energy, and at the time that decision was taken, that was Tina Joemat-Pettersson.

However, such a decision can only come into effect if the Nuclear Energy Regulator of South Africa endorses the ministerial decision.

Joemat-Pettersson duly sent all relevant decisions to Nersa.

And it was at this point that things went very wrong.

The court found that the regulator failed, in that it appears to have regarded itself as a rubber stamp for ministerial decisions.

So the decision by Joemat-Pettersson that an energy-generation capacity of 9600MW needed to be procured and that it should be procured by the Department of Energy (subsequently Eskom), was simply agreed to by the regulator without due process.

This was a fatal error.

The court found that the regulator's "decision to concur in the minister's proposed 2013 determination without even the most limited public participation process renders its decision procedurally unfair and in breach of the provisions of the relevant laws".

The same held for a 2016 decision of the minister that was also referred to the regulator.

Joemat-Pettersson also neglected to publish the determination, which did not go down well with the court. 

"In these circumstances," the court found, "the failure to gazette or otherwise make the first determination public for two years not only breached the minister's own decision, thus rendering it irrational and unlawful, but violated the requirements of open, transparent and accountable government."

block_quotes_start The court found that the Russian agreement 'clearly required to be scrutinised and debated by the legislature' block_quotes_end

It doesn't stop there. Given the inconsistency of the two decisions by the minister, and the failure of her 2016 decision to expressly withdraw or amend the 2013 decision, the 2016 determination "was irrational and must be set aside".

It is difficult to overstate how wrong the regulator was in understanding its role.

In addition to the failure to consult, it was actually concerned that if it didn't agree with the minister, it would be seen to be acting in bad faith.

It claimed that it was required by law to agree with the minister. That is a remarkable misreading of its mandate.

But Joemat-Pettersson found herself in even choppier waters.

The international agreements on nuclear new build concluded with Russia, South Korea and the US, like all international agreements, had to be submitted to parliament to be scrutinised, debated and voted upon by the people's representatives.

The constitution gives two options on how parliament can deal with such matters.

The first option is for the international agreements to be the subject of a resolution in the National Assembly, which requires debate by MPs.

The second option, if the agreement is of a technical, administrative or executive nature, is to table it without debate, which must be done within a reasonable time.

The court found that the Russian agreement was not simply of a technical, administrative or executive nature; in terms of the constitution it "clearly required to be scrutinised and debated by the legislature".

The South Korean and US agreements were much less specific than the Russian agreements - and as a result this led to allegations at the time that the Russians had an inside track.

The court judged that the South Korean and US agreements were merely of a technical, administrative or executive nature, but they were not tabled "within a reasonable time".

So, to come back to our original question, "What next?" 

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According to Liz McDaid, spokeswoman for the Southern African Faith Communities' Environment Institute, there are several initiatives that can be taken.

"The first is that the state may appeal the court ruling - something that must be considered carefully, as its prospects of a successful appeal are very low, given the content of the judgment and the large number of issues on which the court found the process to be flawed.

"If the state does decide to appeal, however, we will have to start mobilising public support to defend the high court judgment before the Supreme Court of Appeal in Bloemfontein.

"The state must decide within 15 working days whether it will appeal the judgment.

"If the high court ruling stands, we will have to start the process afresh with a discussion about what South Africa's energy needs are, and how best to meet them.

"The institute will work with all like-minded organisations to make sure that, this time, all voices are heard in such consultations, " McDaid said.

The intended regulation of procurement in such a fresh process should also be changed completely to ensure that it is open, transparent and above board.

The institute is committed to letting members of the public know - on safcei.org and other media - when there will be opportunities for public participation on the question of what our country's energy future looks like. This will ensure maximum participation in these discussions.

• Tilley is the advocacy co-ordinator for the Open Democracy Advice Centre