State again nailed over irrational use of public power
In declaring the nuclear procurement processes to be unlawful, the Western Cape High Court fired yet another warning to government about the irrational use of public power, notes Legalbrief. What the government argued was a decision based on ‘executive policy’, Judge Lee Bosalek, with Judge Elizabeth Baartman concurring, ruled was in fact ‘irrational and unreasonable’ because it ignored the public interest by skirting the requirement for a ‘rational and fair decision-making process’.
So, once again, a court has stood by civil society – and in doing so has undone the carefully orchestrated plans of President Jacob Zuma, who had been determined to proceed with the nuclear build programme‚ despite critics saying it was not necessary and beyond the means of a fiscally constrained government.
Zuma manipulated his Cabinet to remove two perceived obstacles to the arrangement, Energy Minister Tina Joemat-Pettersson and Finance Minister Pravin Gordhan. In their places he installed two trusted lieutenants in Mmamoloko Kubayi and Malusi Gigaba. But he hadn’t reckoned with the determination of two NGOs and the fearlessness of the courts to unpick unlawful administrative actions.
Earthlife Africa and others v Minister of Energy and others
Bosalek rejected government claims that the far-reaching agreement between SA and Russia was simply a bilateral international framework agreement for nuclear co-operation, concluding instead that it laid the basis for a ‘binding, exclusive agreement in relation to the procurement of new reactor plants’. A BusinessLIVE report notes speculation has been rife for several years that SA had concluded a secret nuclear procurement deal with Russia which would have made its energy giant Rosatom the lead provider of a fleet of nuclear plants to generate an envisaged 9600MW of energy.
Bozalek declared the nuclear co-operation agreements with Russia, US and South Korea invalid and unconstitutional because they had not been properly approved by both houses of Parliament.
They also declared the determinations under the Electricity Regulation Act which lay the basis for Eskom’s nuclear build programme to be unlawful. The judgment means that any preferential status that Russia established with SA for the roll out of a fleet of nuclear plants has been blown out of the water, says the report. The two NGOs argued that the agreement with Russia contained far-reaching and binding commitments in relation to nuclear procurement which were not present in the other inter-governmental agreements reached with the US and South Korea. The judge agreed.
He remarked that the agreement with Russia suggested that ‘a firm legal commitment by the contracting parties to the strategic partnership’ had been made. ‘In my view seen as a whole the Russian intergovernmental agreement stands well outside the category of a broad nuclear co-operation agreement and at the very least sets the parties well on their way to a binding, exclusive agreement in relation to the procurement of new reactor plants from that particular country,’ the judge said.
The case was brought by Earthlife Africa and the Southern African Faith Communties' Environment Institute against the Minister of Energy‚ President Jacob Zuma‚ the National Energy Regulator of SA‚ Speaker of the National Assembly Baleka Mbete‚ chairperson of the National Council of Provinces Thandi Modise and Eskom, says a TimesLIVE report. The two NGOs argued there had been no proper public participation or consultation process over the determinations‚ which were ‘irrational and unreasonable’. The government rejected these arguments on the ground that these determinations amounted to ‘executive policy’. Bosalek‚ however‚ said the determinations were not merely administrative decisions‚ and a ‘rational and fair decision-making process’ was required before Nersa decided whether or not to concur with the Minister's proposed determination. The National Energy Regulator Act required that decisions that materially and adversely affected the rights of others had to be procedurally fair. The regulator decided to concur with the 2016 ministerial determination by means of a round-robin exercise a mere three days after being asked to do so by Joemat-Pettersson. ‘In taking the decision Nersa was under a statutory duty to act in the public interest and in a justifiable and transparent manner but also to utilise a procedurally fair process giving affected persons the opportunity to submit their views and present relevant facts and evidence. These requirements were clearly not met by Nersa‚’ Bosalek said. He also ruled the two-year delay in gazetting the 2013 determination breached the Minister's decision‚ ‘thus rendering it irrational and unlawful’. The delay also violated the requirements of open‚ transparent and accountable government. The Minister should have consulted with Nersa again in 2015 before gazetting the determination.
The Energy Minister is liable for all legal costs. In the ruling, Bozalek said the applicants have achieved ‘substantial success in the application’ and it is therefore appropriate that they are awarded their costs, notes a Fin24 report. Although the applicants sought a cost order against both Zuma and the Energy Minister, in the current circumstances any cost order should be against the Minister alone, according to the ruling.
The judgment has set numerous hurdles for the government, which could take ‘years or even decades’ to clear, according to Adrian Pole, who acted for the NGOs. And according to energy commentator Chris Yelland, two lengthy public consultation processes through Parliament and Nersa will have to follow, notes Rapport. Eskom confirmed that its Request for Information process, which was to be finalised this week, has been scrapped. The utility is awaiting directives from the Department of Energy, said spokesperson Khulu Phasiwe. According to a Cape Times report, Energy Minister Mmamoloko Kubayi is expected to shed light on whether she will appeal the decision today when she makes her first appearance in Parliament since her appointment a month ago. Chair of the Energy Committee, Fikile Majola, said the new Minister would be quizzed on the nuclear build programme, as it was a Cabinet-driven process. Majola said they wanted to know what would happen following the High Court decision.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
