On 27 February 2023 the Department of Cooperative Governance and Traditional Affairs gazetted the national state of disaster regulations related to South Africa’s energy crisis.
When the government first announced that it intended to declare a state of disaster, many experts and organisations stated that it was not necessary and a relaxed legislative environment would erode democratic governance. Inaction by the Department of Mineral Resources and Energy (DMRE) caused the high levels of load shedding. Declaring a state of disaster was just an attempt to deflect blame.
This declaration of a state of disaster to “cut through the red tape” also allows the state to bypass important regulations and processes which is a major concern.
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.
The matter concerning Minister Mantashe dismissing Peter Becker from the Board of the National Nuclear Regulator (NNR) will be heard in the Western Cape High Court on 9 November 2022. Becker is asking that the decision to dismiss him is reviewed and set aside.
The affidavit expresses the view that the function of NNR Board members is to ““Loyally execute the policies of the government of the day” which includes the life extension of Koeberg. The Minister characterises resistance to this plan as “political opposition”, misconduct, and a justified basis for dismissal.
Below is the text of the Answering Affidavit from Minister Mantashe, which is now in the public court record.
In April 2021 Peter Becker launched a high court application to review the decision by Minister Mantashe to dismiss him from the Board of the National Nuclear Regulator (NNR). Previous posts included the Founding Affidavit and the Supplementary Founding Affidavit. After requesting and being granted a three week extension to the deadline, the Chair of the NNR Board, as the second respondent, and the NNR itself as the third, supplied their combined answering affidavit on 1 August 2022. This is the only opportunity for them to present evidence to the court.
Below is the text of the combined Answering Affidavit from the NNR Board Chair, which is now in the public court record:
A declaration of an ‘energy emergency’ has been touted as a necessary step to “cut through the red tape” and address the electricity crisis. But what exactly does this mean? Which regulations or processes will be bypassed?
When it comes to the Koeberg nuclear plant, one upcoming regulatory requirement and a concern for those advocating for a life extension is getting approval from the National Nuclear Regulator (NNR). The current operating licence expires in July 2024, and without the NNR granting a life extension, this is when the plant will have to be permanently shut down.
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, accordingto 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 hiring and firing of Peter Becker by Minister Mantashe has been covered extensively in the press recently. Becker was appointed to the National Nuclear Regulator (NNR) Board to represent communities in June 2021, and fired for ‘misconduct’ in February 2022. Becker is in the process of challenging this in the Western Cape High Court, asking that the decision to remove him be reviewed and set aside.
The Minister and the NNR have until 10 May to produce the record of the decision. Despite this, the Minister recently issued a call for nominations to replace Becker. The deadline for nominations was 6 May.
In a speech in the Eastern Cape on 7 May, Mantashe is reported as saying that he will fire anyone on the NNR Board who does not advocate for nuclear power or ‘resists’ nuclear power. This appears to make it clear that anyone nominated must be someone who will ‘advocate’ for nuclear power, irrespective of the opinions of the communities they are appointed to represent.
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. If successful, it would mean that he would return to his position on the NNR Board.
The Minister’s decision to discharge Becker was based on a complaint in July 2021, shortly after he was appointed. The founding affidavit (linked below) submitted to the court paints a picture of a decision by the Minister based on unsubstantiated allegations combined with a misunderstanding of the role of the NNR.