NNR Court case: High Court hands down scathing judgment

First, some background…
The National Nuclear Regulator (NNR) Act of 1999 requires that one Board member is appointed “representing communities”. In 2020 civil society became concerned that this post had been vacant for a while and there seemed to be no attempt by Minister Mantashe to appoint anyone to this position. After receiving nominations for Peter Becker from several civil society organisations and requesting Becker’s CV, the Minister appointed him in June 2021.

In the first Board meeting he attended in July 2021, there was a complaint initiated by Eskom that Becker’s well known anti-nuclear stance was a conflict of interest and it was resolved to get a legal opinion to inform the Board. The opinion was prepared by MacRobert attorneys, and the Chair forwarded this to the Minister on 11 October 2021 without sharing it with the full Board. The Chair also requested that the Minister dismiss Becker by writing in an accompanying letter “since the Minister is the competent authority that is responsible for appointment and removal of NNR board members.” For a summary as well as the full judgment, see below.

Becker obtained a contrary legal opinion which he sent to the Board and the Minister, stating that the MacRobert opinion was deeply flawed and any action taken based on it would be met with a court challenge. Sometime around January 2022, Becker found that he was no longer being sent invitations to attend Board meetings and was being excluded from all other Board processes. Queries emailed to the Chair were not answered and in the afternoon of 18 January 2021, Becker was sent a letter from the Minister suspending him with immediate effect. Coincidentally, this was the same day that the NNR approved the replacement of the steam generators in unit 2 of the Koeberg nuclear power station – a process which was aborted due to lack of preparation resulting in a R1-billion rand claim by French engineering firm, Framatome, against Eskom.

After some correspondence, the Minister formally dismissed Becker on 25 February 2022. Becker immediately began the process of a High Court challenge to review this decision and have it set aside. The earliest court date available via the semi-urgent roll for the Western Cape High Court was 9 November 2022. After a full day hearing, judgment was handed down 19 January 2022, exactly one year after Becker was suspended. This means that Becker has been unlawfully excluded from one full year of meetings.

Summary of judgment…
The judge agreed with Becker that his dismissal was “unlawful, unconstitutional and invalid” and set that decision aside. This means that in effect Becker has remained a member of the Board, there is no need for him to be “re-appointed” and he merely continues with his duties. The Minister, the NNR Chair and the NNR were ordered to pay Becker’s legal costs.

The ruling was scathing in places. Both the Minister and the NNR Chair alleged that Becker meeting with the people he was appointed to represent was misconduct, as he had presented himself as a “representative of the Board” without authorisation. The judge wrote (paragraph 68) that the intention of this meeting was “plainly understood” by some at the NNR, and it was “inconceivable” how this allegation came about.

The conduct of the Board is also heavily criticised. The judge wrote: “The manner in which the Board dealt with Mr Becker is not commendable” (paragraph 80), and that the process followed was “patently vitiated by procedural unfairness” (paragraph 94). Instead of dealing with the issue in a “confrontational manner” the Board should have acted in a “better and in a more constructive manner”, and “pragmatically and in a more professional manner”.

Another allegation by the Board Chair was that Becker “did not deem it fit to recuse himself from discussions and/or decisions that related to the extension of the lifespan of the Koeberg Nuclear Power Plant” (paragraph 145 of the Chair’s affidavit). The same affidavit stated that these discussions would likely occur in 2024 (paragraph 179). Since such discussions had not yet taken place, the judge wrote: “It boggles one’s mind why Mr Becker’s input on the Board should be sanctioned, even before such discussions are tabled for discussion” (paragraph 84).

The Minister was also not spared a tongue lashing. The judge wrote (paragraph 71): “The Minister thought it is the business of the Board to advocate for nuclear energy” and that is a “mistaken understanding”. It is also wrong of the Minister to equate the obligation of a Board member of a regulator with the Board member of a company, and to consider the Board to be a representative of government as the shareholder. The judge also agreed with Becker’s submission that “the Minister acted in bad faith and with ulterior motives.”

Civil society welcomes judgment
Asked for comment, the Southern African Faith Communities’ Environment Institute’s (SAFCEI) Executive Director, Francesca de Gasparis said, “Since his unlawful removal in January 2022 by Minister Mantashe, there has been no community representative on the NNR. As a result, communities’ interests have not been represented in this space, and once again we have been excluded from governance and decision-making in this critical energy space.”

The Green Connection’s Strategic Lead, Liz McDaid said, “As one of the many civil society activists who challenged the Zuma-era nuclear deal, I believe this judgment is a great step forward. Good governance means effective oversight and you cannot have effective oversight if those who interrogate nuclear decisions, demand accountability and promote safety are targeted.”

“This is political interference at its worst and is a reason why the NNR should be placed under a minister with environmental safety at its core,” McDaid continued. This was also the opinion of the International Atomic Energy Agency (IAEA) after an inspection visit in 2013.

A decade ago now the IAEA said “the separation between the regulatory functions and the promotional activities is not adequate, thus calling into question the effective independence of the NNR”. No action was taken on the IAEA recommendation and this unlawful dismissal of Becker is a manifestation of that lack of independence.

When asked why he initiated this court case, Becker said, “I believed that the Minister did not understand the law correctly when it comes to the National Nuclear Regulator, and that it was in the public interest to get clarity from the courts. This ruling is strongly supportive of that belief.”

With regard to the question of keeping his role as Koeberg Alert Alliance (KAA) spokesperson when he was appointed to the Board, Becker responded, “If there was the expectation that I should relinquish my role as a spokesperson for the KAA, I feel this should have been made a condition when I was offered the position, or at least, as part of being inducted into the Board, this could have been discussed with me. However, neither of these were done. Good governance would involve managing perceived conflict of interests with a view to resolving them, as opposed to rushing through an unfair process aimed at dismissal.” Becker added that, based on guidance from the judgment, he will no longer function as an official spokesperson for the KAA.

South African Team Lead at 350Africa.org, Glen Tyler, commented, “It is amazing that a Minister needs to be hauled to court to understand that having a community representative with opposing views on a regulator’s board is okay. This is more evidence of Mantashe’s biases against a quick and just transition to renewable energy.”

“OUTA applauds Mr Becker’s resilience and courage in combatting a government decision which is irrational and not within the public interest,” said the Organisation Undoing Tax Abuse (OUTA) Legal Project Manager, Brendan Slade. “Furthermore, OUTA believes the judgment will assist in the pioneering of much needed independence of government boards.”

“As the NNR Board is responsible for oversight of the safety of the Koeberg Nuclear Power Plant, with major decisions regarding the life extension happening now, this amounts to a major error by the Minister and huge disservice to South Africans,” said SAFCEI’s De Gasparis.

Lydia Petersen, KAA spokesperson, is “enormously pleased” by this ruling. “A recent report by the IAEA found 14 safety issues at Koeberg including a leak allowing a highly radioactive substance to escape through cracked concrete. Communities are concerned about the safety of the plant and having Mr Becker’s dismissal set aside is a reassurance to those communities that at least there will again be someone on the NNR Board whose primary duty is to represent their concerns,” she said. 

Petersen is also concerned that information about the safety of the life extension application is being withheld from the public. “The safety case as released by Eskom is heavily redacted, making it difficult for the public to be confident about the preparedness of the plant for a safe life extension,” she said. 

Founding member of the KAA in the 1990’s, Mike Kantey welcomed the judgment. “As an acknowledged expert on nuclear safety and public health, Becker also enjoys the active support of many civil society structures across the country, from Namaqualand to Cape St Francis,” he said.

“With two such important agenda items such as defects in the current nuclear reactors and the application for a licence to extend the lifespan of the two reactors beyond their sell-by dates, we could not have a more respected community representative,” said Kantey. 

Gabriel Klaasen from Project 90 by 2030 said, “We are pleased to have the community representative back after a full year, in which time decisions were made without any public representation. This judgment allows the NNR board to have a representative in place, who is key for communities to relay their concerns to and to be heard with regards to their safety concerns.

“As a further step towards authentic transparency and accountability around nuclear, communities would like to see the recommendations of the IAEA implemented, including that the Minister of Energy be separated from the NNR board,” concluded Klaasen. 

The full judgment is also available here: https://drive.google.com/file/d//view?usp=share_link

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One response to “NNR Court case: High Court hands down scathing judgment

  1. Thank you Koeberg Alert and Peter Becker for your tireless efforts. Glad you won this court case and that the reasons and decision of minister Mantashe to discharge Peter Becker from his office as a director of the NNR Board were declared unlawful, unconstitutional and invalid and set aside. Albeit the year long exclusion from the Board meant that unproductive solutions to our energy problem have been implemented. Like the lifespan extension of the Koeberg Nuclear Power Generator or the current fresh inquiries into securing electricity from the floating power provider Karpowership. With a 20-year contract for its South African operations? I wonder how much money has greased greedy palms to launch and rekindle these deals previously ditched as unaffordable? Renewable Energy must be our focus.

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