Industry reacts to South African court ruling

27 April 2017

 A ruling by South Africa's High Court setting aside the country's nuclear procurement plans is centred on procedural issues and makes no determinations on the argument for nuclear energy, the Nuclear Industry Association of South Africa (Niasa) said today.

Niasa managing director Knox Msebenzi said the organisation had "noted" yesterday's judgement by the Western Cape High Court that two ministerial determinations central to the country's plans to procure 9600 MWe of new nuclear capacity were unlawful and unconstitutional. The challenges were brought by Earthlife Africa and the Southern African Faith Communities' Environmental Institute (SAFCEI).

"As an industry we respect the court's judgement. We look to the Department of Energy for guidance on the matter and will take their lead on the next course of action," Msebenzi said. "As a principal statement, we have always maintained that transparency, fair trade and following correct procedures are critical foundations necessary to implementing a successful new build program. Our members who include all vendor countries have signed a declaration to respect the law of South Africa and committed [themselves] to a fair and transparent process."

He said it was "critical to note" that the court's determination and judgement was not on the "argument for nuclear" but on the procedures that had been followed. "The reality is that nuclear technology is not new to the country; therefore we have a solid foundation to base the new proposed new build program," he said. "It is also not a case of 'either or' when comparing or reviewing the Integrated Resource and Energy Plans of government, but about nuclear being afforded its rightful place within the energy mix and future of the country." This, he said, would guarantee the baseload power needed for industrialisation and climate change commitments.

The High Court judgement also ruled that intergovernmental nuclear cooperation agreements between South Africa and Russia, South Korea and the USA were unlawful and unconstitutional, and must be set aside. Msebenzi said the country still needed a "platform for exchange of best practice" with international counterparts with nuclear programs.

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 on line by 2023. The first ministerial determination overturned by the High Court noted the requirement for this capacity and tasked the Department of Energy with its procurement. The second identified utility Eskom, rather than the Department of Energy, as the procurer of the plants.

Tina Joemat-Petterson, then energy minister, told the South African parliament last September the request for proposals - marking the start of the procurement process - would be issued that month. However, this did not take place and no request has yet been issued. Late last year Eskom issued a request for information to companies interested in participating in the program, but the High Court has now ruled that the request for information must now be set aside.

Parliamentary engagement

Energy Minister Mmamoloko Kubayi, who replaced Joemat-Petterson in a cabinet reshuffle on 31 March, has directed the Department of Energy to study the High Court judgement. The department yesterday said Kubayi will engage with "all other relevant parties" and will "pronounce on the matter in due course".

It said South Africa had signed intergovernmental agreements with China, France, Russia, South Korea and the USA. "The Department reiterates that the South African government has not entered into any deal or signed any contract for the procurement of nuclear power," it said. "The minister will engage parliament on this matter going forward."

The High Court also ordered the government to pay the legal costs incurred by the two applicants. SAFCEI founder and patron Geoff Davies said the group was "very pleased" with the result. "However, it may only provide a short-lived reprieve," he said.

Earthlife Africa Johannesburg's Makoma Lekalakala welcomed the court ruling as a victory for "justice and the rule of law", but said "organisations and citizens" were planning to launch an "even bigger campaign soon to ensure this judgement is only the start of people holding the government to account on its energy deals."

Researched and written
by World Nuclear News