“The timing of the judgment, before this important day in South Africa’s history and on the day of the nuclear disaster in Russia, adds to the sense of justice being done,” she said in a statement.
Earthlife and the South African Faith Communities Environment Institute (Safcei) launched a joint court bid in October 2015 to stop government from procuring nuclear energy.
READ: Nuclear battle not over yet – OUTA
Judge Lee Bozalek on Wednesday ruled in favour of the two organisations’ court bid, declaring government’s attempts to secure 9.6 GW of nuclear energy unlawful, including the initial determination to procure nuclear energy in 2013, the cooperation agreements signed with Russia, the US and South Korea, as well as former energy minister Tina Joemat-Pettersson’s decision to hand over the procurement of nuclear energy to Eskom late last year.
“[The ruling was a] victory for justice and the rule of law and the people of South Africa,” said Makoma Lekalakala of Earthlife.
“After over a year and a half of court preparation for justice, Earthlife and Safcei were finally able to block the unlawful and unconstitutional actions of the South African government in its nuclear deal,” she added.
READ: FULL JUDGMENT: Nuclear process declared unlawful
Safcei spokesperson Liziwe McDaid said the two organisations experienced considerable “delays and dirty tricks along the road to the courts”.
“But we persevered and now we have been vindicated,” she said.
SAFCEI and Earthlife based their case on the South African Constitution, McDaid said, which states that when it comes to far-reaching decisions, such as the nuclear deal, which would alter the future of our country, government is legally required to debate in Parliament and do a thorough, transparent and meaningful public consultation.
Public participation to underpin energy policy
According to Adrian Pole, legal representative for Earthlife and Safcei, the judgment means that there is no decision in terms of the relevant empowering statute that new nuclear generation capacity is needed and should be procured in South Africa.
READ: Energy minister to cough up for nuclear court costs
“The Russian agreement has been declared unlawful and unconstitutional for its tabling. Before any nuclear procurement can proceed, the Minster of Energy in concurrence with the National Energy Regulator of South Africa (NERSA) will be required to make a new determination in accordance with a lawful process that is transparent and includes public participation.
“This will necessarily require disclosure of relevant information that to date has been kept from the public, including critical information on costs and affordability,” Pole said.
Project 90 by 2030 – an environmental non-profit organisation – called the court ruling a “victory for democracy”.
“Both Safcei and Earthlife are small organisations, with a handful of people working tirelessly over the last few years on this issue,” said researcher Richard Halsey. “Despite all the high level issues of state capture and patronage politics, the courts are still standing up for due process and the need to have energy planning done in a transparent and consultative manner.”
| CAPE TOWN
CAPE TOWN A South African pact with Russia’s Rosatom to build nuclear reactors was deemed unlawful by a High Court on Wednesday, casting fresh doubt over the country’s energy plans.
Operator of Africa’s only nuclear power station, Eskom wants to add 9,600 megawatts (MW) of nuclear capacity – equivalent to up to 10 nuclear reactors – to help wean the economy off of polluting coal in what could one of the world’s biggest nuclear contracts in decades.
South Africa and Russia signed an Intergovernmental Agreement (IGA) in 2014 that sealed a cooperation pact between state-owned nuclear group Rosatom and state-owned utility Eskom.
Judge Lee Bozalek said any request for information to kickstart the procurement process was set aside as was the cooperation pact. The deal had included a favourable tax regime for Russia and placed heavy financial obligations on South Africa, Bozalek said.
“Seen as a whole, the Russian IGA stands well outside the category of a broad nuclear cooperation 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,” Bozalek said.
The Southern African Faith Communities Environment Institute (SAFCEI) and Earthlife Africa-Johannesburg had jointly filed the court application to stop the nuclear programme.
“There are no more secret deals and everything has to be done in the open,” said SAFCEI spokeswoman Liz McDaid.
It was not clear whether the government would appeal the ruling.
The government has downplayed the agreement with Russia, saying it was not a final contract and that an open tender process would still be conducted.
The Department of Energy said the government “has not entered into any deal or signed any contract for the procurement of nuclear power,” adding that it has signed IGA’s with the United States, South Korea, China, Russia, and France.
The head of South African nuclear state agency said last year that Rosatom was not the frontrunner and that the tender would be open to all bidders.
Eskom Chief Nuclear Officer Dave Nicholls said: “We haven’t been through the judgement yet so we can’t comment.”
Rosatom officials in Moscow and in Johannesburg said the company “could not comment on legal disputes between South African entities that do not directly involve us.”
The main opposition Democratic Alliance (DA) party said the nuclear battle would now return to parliament and it would use all its powers to block the deal.
After the 2011 nuclear disaster in Fukushima led many countries to cut back nuclear programmes, South Africa is one of the few still considering a major new reactor project and the tender is eagerly awaited by manufacturers from South Korea, France, the United States and China.
With U.S. firm Westinghouse in Chapter 11 proceedings and France’s Areva being restructured, Rosatom’s two main competitors are hamstrung by financial difficulties, boosting the Russian firm’s chances.
China has little experience building reactors abroad and Korea’s KEPCO has only one major foreign reactor contract, in the United Arab Emirates.
France, which built South Africa’s two existing reactors, is keen to stay in the race and utility EDF – which is taking over Areva’s reactor manufacturing unit – said last month it would respond to Pretoria’s “request for information”.
Eskom sees nuclear as an option to replace coal-fired power, but some economists, however, have questioned whether the country’s ailing economy can afford a nuclear building programme they estimate could cost around 1 trillion rand ($76 billion).
Some pundits say former finance minister Pravin Gordhan was fired partly because he resisted pressured by a faction allied to President Jacob Zuma to back nuclear expansion.
New Finance Minister Malusi Gigaba has said nuclear expansion will only be pursued if it is affordable.
The ruling would not stop the nuclear plan, analysts said.
Travis Hough, business unit leader for energy & environment at consultancy Frost & Sullivan Africa, said: “This is most probably just another bump in the road and nothing is going to derail the nuclear programme.”
(Additional reporting by Mfuneko Toyana in Johannesburg, Jack Stubbs in Moscow and Geert De Clercq in Paris; Editing by James Macharia)