South African court stands up against nuclear deal

Speculation has been rife for a few years now that SA has concluded a secret nuclear procurement deal with Russia. Some local media have gone on to say President Jacob Zuma had assumed ‘personal control’ of the nuclear programme, so much that it has been characterised by secret meetings, the reshuffling of cabinet ministers, undisclosed documents and classified financial reports. All this time the government has downplayed the agreement with Russia, saying it was not a final contract and that an open tender process would still be conducted.

While the deal itself was secret, the government was adamant that nuclear energy is the future and hence will be part of the energy mix and part of the solution for the country’s commitments to cut carbon emissions. That was until earlier this year when the Western Cape High Court caused a fatal blow to the government’s ambitious nuclear energy deal with Russia by declaring it invalid. The bombshell judgment shed light on the ongoing controversy over whether or not SA and Russia had concluded a nuclear procurement deal.

Indeed, in April, the Western Cape High Court Judge Bozalek declared the nuclear cooperation agreements with Russia invalid and unconstitutional because both Houses of Parliament had not properly approved them. He also declared the determinations under the Electricity Regulation Act, which laid the basis for Eskom’s (South Africa’s power generator) nuclear building programme, to be unlawful.

Two Non-Governmental Organisations, Earthlife Africa Johannesburg and the South African Faith Communities' Environment Institute (Safcei), had submitted the case to Court in 2015. Safcei and Earthlife argued that any future nuclear procurement attempts from the Energy Minister should be subject to a public participation process.

“Before any nuclear procurement can proceed, the Minister of Energy will be required to make a new determination in accordance with a lawful process that is transparent and includes public participation”, said Adrian Pole, legal representative for Safcei and Earthlife. “This will necessarily require disclosure of relevant information that to date has been kept from the public, including critical information on costs and affordability.”

What should have been an economic decision was clouded by controversy, with political pressure to push through the nuclear build and the apparent rewards it would bring to politically prominent individuals. Even before the High Court ruling in April this year, the cabinet reshuffle by the President was viewed as a desperate bid by his faction and associated beneficiaries such as the Gupta family, to drive the pro-nuclear agenda.

Many in the media speculate that one big reason for President Jacob Zuma’s zeal is the involvement of the Gupta family with whom he has close ties. As many locals know, the Gupta family controls South Africa’s only dedicated uranium mine. Nuclear reactors require uranium to function, in particular low-enriched uranium (LEU). Furthermore the family has developed close relationships with key individuals at Eskom, the South African power generator.

 “This nuclear deal is just going to put a larger crisis in the South African political and economic sphere. It is important to hold the government and the President accountable,” said Makoma Lekalakala from Earthlife.

In recent years South Africa has had remarkable successes with the speedy, cost-effective installation of renewable energy power plants. In addition to this, technologies for harvesting the country’s plentiful wind and solar energy resources are rapidly becoming cheaper. In light of the positive developments in the renewable energy sector it seems that the country should invest more in these options rather than going the nuclear way.

Right now the key question is whether Zuma and Eskom will accede to the High Court’s verdict, or if they will challenge it and continue to ignore the rule of law.  Not only would this subvert the country’s constitution and its democratic form of government, it would also deny the constitutional right to popular participation in energy democracy. In order to ensure a pertinent evaluation of the need for nuclear energy, the procurement process has to start afresh. In a constitutional democracy, a nuclear procurement process should be transparent, logical, considered, legal, participatory, and unbiased.