The two-year-old nuclear determination that was published in the Government Gazette on December 21 last year, is going to be challenged in court with the aim to have it set aside.
According to Earthlife Africa spokesperson Dr Tristen Taylor, the determination is a legal requirement for government to go ahead with nuclear procurement. If it is set aside, it might delay or derail the procurement process.
Such a determination sets the amount of generation capacity and specific technology that government will procure. In this case, the determination is for 9 600MW of nuclear energy, which is in line with government’s 2010 Integrated Resource Plan.
Moneyweb reported in October last year on Earthlife Africa Johannesburg and the Southern African Faith Communities’ Environment Institute (SAFCEI) having launched a court application against President Jacob Zuma and energy minister Tina Joemat-Pettersson in an effort to stop the nuclear programme.
Lawyers for the two organisations now accuse government of deliberately trying to undermine their court case with the publication of the determination.
“When government gazetted a nuclear section 34 determination made in 2013 in December 2015, it was to pave the way for the suspect Russian deal. However, because this nuclear section 34 determination was made without public participation, and was kept secret for two years, government’s plan has backfired, and our case has now been strengthened,” they said in a statement.
The lawyers said a key part of their litigation was that government is required to make such a determination in consultation with energy regulator Nersa and the public. Even though their lawyers did ask government about the existence of any nuclear determination, it was never disclosed that a determination had been made in 2013.
“On December 21 2015, the DoE [Department of Energy] gazetted the 2013 section 34 determination, supposedly allowing the department to go ahead and start a procurement process to buy nuclear reactors.”
Earthlife Africa and SAFCEI said according to an official memo from Joemat-Pettersson to director-general of the DoE Thabane Zulu, dated December 1 2015, it was only published to undermine the court challenge.
They quote from the official memo (their emphasis):
“3.5 The publishing of the determination has become urgent as the Department is facing litigation by Earthlife Africa Johannesburg and the Southern African Faith Communities Environment Institute in the High Court, Western Cape Division. In the Notice of Motion (annexure 5) the applicants claim that the Minister has not published a Section 34 determination nor conducted a public participation process and therefore any decisions to facilitate, organise, commence or proceed with the procurement of nuclear new generation capacity is unlawful.
3.6 During a meeting of 27 November 2015, to brief legal counsel defending the Department against the Applicant (Earth Life Africa and the Southern African Faith Communities Environment Institute). The legal counsel requested to include the determination when filing the record for the court papers. The legal counsel advised that the inclusion of the determination in the answering affidavit will weaken the case for the applicant as it will show that their application is based on false assumption.”
Supporting documentation provided to SAFCEI and Earthlife Africa’s legal team on February 16 “revealed this deliberate attempt by the DoE to keep the public in the dark about its nuclear procurement process”, the applicants said in their statement.
“Our main reasons for challenging the government’s intended nuclear deal were that government failed to follow the procedures laid down to prevent mismanagement and corrupt practice,” said Taylor. “There should have been public consultation and so this secret determination is unconstitutional and worthless.”
SAFCEI and Earthlife Africa now intend to ask for the nuclear section 34 determination to be reviewed and set aside.
Moneyweb has approached the DoE for comment. The department said it would revert as soon as possible. If it does, Moneyweb will publish its response.