After appointing Peter Becker to the Board of the National Nuclear Regulator (NNR) in June 2021, Minister Mantashe fired him in February 2022. Becker has launched an application in the High Court to have this decision reviewed. This includes a call for the record of the decision, according to Rule 53 of the Uniform Rules of Court. The logic behind this rule is that a court cannot be expected to determine if a decision is rational without seeing what was before the decision maker at the time.

Thirty three documents comprising the record have been released by the Minister via the State Attorney, and are now part of the public court record. These documents are also available at the bottom of this article.

The main documents…
Of the thirty three documents, two are pivotal to the decision, and two provide important supporting information.

The first is document 1, the Decision Memorandum from the Director General (DG) of the DMRE to the Minister, which lays out the reasoning behind the recommendation to discharge Becker from the Board. This document is signed off by Minister Mantashe, Thabo Mokoena (the DG, resigned in April 2022), Mr P Alberts (Chief Director of Legal Services), Mr L Ganta (Chief Director, SOE oversight), Ms S Naidoo (Director, Legal Services) and Ms W Phiri (Senior Legal Admin Officer).

The second is document 4, a letter from Dr Motshudi, Chair of the NNR Board, to the Minister, requesting that the Minister remove Becker from the Board. It reads in part:

… and request the Minister to act on it since the Minister is the competent authority that is responsible for appointment and removal of NNR board members.

Another interesting point raised by the letter comes from the line:

“the NNR is an independent regulator that does not promote nor oppose nuclear activities in South Africa.”

In contrast, writing in the Annual Performance Plan for 2022/23 as submitted to parliament in May 2022, Motshudi wrote:

“resistance by civil society compels the Regulator to have further external stakeholder engagements to make the public more aware of the vital role of the nuclear power in the country’s clean energy technology in the energy mix.”

The letter from the Chair also alleges Becker ‘has inundated the NNR management’ with requests for information, although within the record provided there appears to be no explicit mention of exactly how many such requests there actually were. Also conspicuous by its absence is reference to any communication from the Chair to Becker to address this alleged problem, prior to writing to the Minister implying that the Minister should remove Becker from the Board.

Despite multiple requests, this letter had previously been withheld from Becker and his attorneys. It contains allegations which appear to be unsupported by any evidence in the accompanying documents, and also appears to contradict the Board Charter, which is included in the Record as document 7.5.

Supporting documents…
The two supporting documents of interest are the Board Charter and the Minutes of the NNR Board meeting of July 2021.

The Board Charter contains the following under the heading 10. GOVERNANCE:

10.1 Board Members have unrestricted access to all NNR information, records, documents, and property, which they may require to make informed decisions.
10.2 Board Members have unrestricted access to management and may meet separately with management. …

This is difficult to reconcile with the allegation in the letter from the Chair to the Minister which characterises Becker’s requests for information as misconduct.

The release of the unredacted minutes of July 2021 is also of interest because the NNR has previously refused to release minutes of Board meetings in response to a request from OUTA in February 2022 under the Promotion of Access to Information Act. According to the NNR’s refusal, release of Board minutes would compromise the operations and decision-making processes of the NNR.

In conclusion…
From the documents in the Record provided, it appears that the case for having the Minster’s decision set aside has been strengthened. However, thirty court days after Becker submits his supplementary papers to the court By the 24 May) the Minister and possibly the NNR Board Chair and the NNR will provide answering affidavits, and these will provide insight into any weaknesses in the case.

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Below are the four documents referred to above, as well as a zip file of the full Record as provided to the Court.

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Here is the Decision Memorandum:

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The letter from the Board Chair to the Minister:

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The NNR Board Charter:

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The July 2021 Board minutes:

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Finally, here is a zip file of the complete Record:
https://drive.google.com/file/d/1a6Z42zfA9T4WKSa7Z8BF_pOFxvSoFjQI/view

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