South African court sets aside nuclear plans
26 April 2017
South Africa's Western Cape High Court has set aside two ministerial determinations underpinning the country's nuclear procurement plans, ruling them unlawful and unconstitutional. The court has also declared the same to be the case of intergovernmental agreements, including that between South Africa and Russia.
Today's written ruling by Judge Lee Bosalek, with the concurrence of Judge Elizabeth Baartman, was in response to challenges by Earthlife Africa and the Southern African Faith Communities' Environmental Institute to two determinations made by the Minister of Energy. The first determination - that South Africa required 9600 MWe of new nuclear capacity, and that this should be procured by the country's Department of Energy - was signed in December 2013 but not gazetted by the South African government until December 2015. The second determination, issued in December 2016, was similar to the first but identified South African utility Eskom as the procurer of the nuclear power plants.
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The judges ruled that the failure to include a public participation process rendered the National Energy Regulator of South Africa's (Nersa) approval of both determinations procedurally unfair and in breach of national regulatory legislation. They also questioned the "inordinate delay" in the gazetting of the 2013 determination - which renders it effective - and the failure of the energy minister at the time to reconsult with Nersa to ensure its earlier approval remained valid.
The High Court ruled that an intergovernmental nuclear cooperation agreement between South Africa and Russia, signed by the energy minister at the time, Tina Joemat-Petterson, and the then Rosatom director-general Sergey Kirienko in 2014 - before the gazetting of the first determination - was unconstitutional and unlawful, and should be set aside. It also ruled that intergovernmental agreements signed with the USA in 1994 and South Korea in 2010 should be set aside, as the energy minister's decision not to table before parliament until 2015 rendered them unlawful and unconstitutional.
South Africa's Integrated Resource Plan for 2010-2030 calls for construction of 9600 MWe of new nuclear capacity - supplying 23% of the country's electricity - with the first reactor to come online by 2023. In December 2015, following Joemat-Petterson's decision to designate it to undertake the procurement, Eskom issued a request for information to companies interested in participating in the program. By February, the some 27 companies including China's SNPTC, France's EDF, Russia's Rusatom Overseas and South Korea's Kepco, had said the intended to respond to the request. The High Court has now ruled that the request for information must now be set aside.
An Eskom spokesman told World Nuclear News: "Eskom notes the Western Cape High Court judgment on nuclear. We'll study the ruling and if need be, Eskom will make comments thereafter."
Researched and written
by World Nuclear News