A case against the Department of Energy, the Minister of Energy and Eskom was brought by SAFCEI and EarthLife Africa Johannesburg recently. Today judgement was handed down by Judge Bozalek, and it surprised everyone. He granted every single request of the plaintiffs! He also gave a costs order against the government.
For me the two most important orders of the court were related to the notorious Russian agreement, and the ministerial determination to proceed with the nuclear procurement process.
From Russia, with(out) Liability…
The Russian agreement was suspect for a few reasons. Firstly it gave the Russian company Rosatom a distinct advantage over any other potential bidders, even before a ‘fair’ procurement process begun. It also granted Rosatom indemnity for liability for any nuclear incident, including, for example, a nuclear explosion caused by faulty equipment supplied by Rosatom. Thirdly, it was never debated in parliament – it was just ‘tabled’ as a done deal. The judge was having none of this, and he declared the agreement invalid. It is widely suspected that Vladimir Putin had been reassured the nuclear deal was going ahead, and I would love to see his face when this news is brought to him! The reality is that the potential costs of a nuclear accident are so high, that no company can or will ever take on the risk for having to pay for it. Without this indemnity, Rosatom is going to be much less keen to work in South Africa.
The (non) determination…
The ministerial determination handed the process of procuring nuclear power to Eskom, whereas in a previous determination, it had been assigned to the Department of Energy. The latest determination was issued by the fortunately incompetent Joemat-Peterson, the previous Minister of Energy. This determination was ‘rubber stamped’ by NERSA, the National Energy Regulator. The determination was intended as an amendment to the previous determination, and hence the government argued that NERSA was obliged to approve it, and that no public participation process was needed. Once again, Bozalek was having none of it. He set aside the determination, and anything that resulted from it. That includes the approval from NERSA, and the Request For Information (RFI) issued by Eskom. This is a huge blow to the nuclear industry, which is now likely to ignore the RFI.
So what is next? Will the government try to appeal the judgement? They are unlikely to get leave to appeal from a court that awarded costs against them. If they do appeal, it is not clear to me whether or not the judgement will be suspended while the appeal plays out. Gordon Mackay, the DA shadow minister of energy, was heard on the steps of the court saying that the DA will go to court for an interdict to stop any further action on the nuclear deal, such as the RFI, whether or not an appeal is lodged.
Where to now, Eskom?
So the next step from Eskom’s point of view is to get a valid ministerial determination done. This won’t be hard, as this court case has clearly laid out what a valid determination should say. The next step will be much harder – NERSA will have to do a full public participation process before they concur with the determination. I would hate to be in their shoes for that!
Not only is public sentiment against the idea of nuclear power running high, there are also very compelling technical reasons why nuclear power is a bad idea. Finally, from a purely economic perspective, every month that goes by sees wind and solar energy getting cheaper, making nuclear power less and less attractive.
The ethical, logical, and financially responsible way forward is for the government, Eskom and all the nuclear ‘consultants’ to laugh off the hundreds of millions of rand that has been spent on ‘preparing’ for the nuclear deal, and to stop right now.
Ii it all over? Perhaps, but the amount of money that could be made by some from a nuclear deal is staggeringly high, and they are unlikely to give up.
It is up to the public – everyone in South Africa – to be vigilant, and to participate in the public participation process if it gets that far.