Issued by Rodney Anderson, of Save Bantamsklip
Six months after appointing a Board member to the Board of National Nuclear Regulator (NNR) in order to represent affected communities, Minister Mantashe unlawfully suspended Peter Becker on 18 January 2022. He has been a vocal campaigner against nuclear power in South Africa for about 12 years, and when Mantashe appointed him in June 2021 it was widely welcomed as an enlightened step. According to the NNR Act of 1999, the NNR Board also includes a member from the Department of Mineral Resources and Energy (DMRE), well known for a very pro-nuclear stance.
While the NNR does not make decisions about the desirability of nuclear power, having a diversity of opinions, added a degree of balance to the Board. With some Board members neutral on the subject, and some such as the DMRE official firmly in favour of more nuclear power, without a counterweight the balance, the Board would have been reliably pro-nuclear. With the suspension and pending discharge of Becker, the balance of opinion on the Board is once again pro-nuclear.
Suspension is unlawful
The NNR Act is very clear on the powers of the Minister. He or she may appoint a Board member, and also discharge them for very specific reasons, including misconduct. However, there is no mention of suspension in the Act, as is mentioned elsewhere in legislation for other positions. It seems clear therefore that the Mantashe acted ultra vires, and the suspension was unlawful and unconstitutional.
After a written demand was ignored, papers were served on the Minister last week requiring him to defend the decision in court on 8 February. The biggest concern of civil society is that the interests of communities, particularly with regard to safety, would no longer be represented on the NNR Board as decisions continued to be made, concerning the Koeberg nuclear plant life extension, which has just begun. Since the process of suspension is not defined in law, it could be dragged-out for any length of time.
In an effort to avoid the time, cost and likely embarrassment to the government of yet another loss in court, a settlement was negotiated, and once undertakings were given by Mantashe and the NNR, the urgent court date of 8 February was withdrawn.
The NNR as the second respondent has given the undertaking that all Board and subcommittee meetings will be suspended, and no decisions will be taken by the Board, or any subcommittee, until the Minister has made his decision as to whether or not he will discharge Becker.
Mantashe, as the first respondent, has committed to provide that decision next week, no later than 15 February. These commitments will be made an order of the Court.
What is next?
There seems little doubt that Mantashe will discharge Becker. He made it plain in an interview on Newzroom Afrika, when he said “But it is simple, you are an anti-nuclear activist, you can’t sit on the Board of nuclear.” Mantashe went on to say: “… communities have a right to send somebody else.” He seems to be saying that if communities have anti-nuclear views, even those based on safety concerns, those views may not be represented on the regulatory Board.
When the term of the previous Board ended in December 2019, no community representative was appointed until June 2021. Should the Minister discharge Becker on 15 February as is expected, once again the voices of communities will not be represented as is required by the NNR Act.
Impossible to have confidence in the independence of the NNR
From past experience, the process of nominating and appointing a replacement could take up to eighteen months, and a court challenge to the discharge may well take months. During these next few months the NNR will likely be making decisions about the safety of the refurbishment of the Koeberg nuclear plant along with the twenty year life extension requested by Eskom.
Needless to say this is a crucial time when it is essential that the public have confidence in the independence of the NNR Board. However, that will be impossible while the Minister abuses his powers to keep the seat and role of community representative vacant, or to remove any Board members who have an opinion which differs from his own.
Save Bantamsklip is an NPO opposed to Nuclear power on the Overberg coast. The organisation supported the nomination of Peter Becker to the NNR Board in the role of representing views of communities which may be affected by nuclear activities.