South African ministry accepts court ruling

South African Energy Minister Mmamaloko Kubayi said on 13 May she will not appeal against a High Court decision declaring ministerial determinations underpinning the country's nuclear procurement plans to be unlawful. Intergovernmental agreements set aside under the ruling will be replaced with new agreements, she said.

The Western Cape High Court judgement of 26 April ruled that approval by the National Energy Regulator of South Africa (Nersa) of two ministerial determinations on South Africa's need for and procurement of 9600 MWe of new nuclear capacity had failed to include the requisite public participation. This rendered the determinations, made in 2013 and 2016 under Section 34 of South Africa's 2006 Electricity Regulation Act, unlawful. The court ruling also set aside any requests for information or proposals issued under the two determinations. Such a request for information was issued by South African utility Eskom in December.

Section 34 allows the energy minister, in consultation with Nersa, to determine that new generation capacity is needed and the types of energy sources to be used. It also gives the minister power to enter into contracts to facilitate the tendering process for new capacity.

Kubayi said the government and her department remained committed to the approved energy mix policy and would "strive to implement all forms of energy sources" to secure the country's energy supply. "We appeal to our stakeholders to stop the temptation to divide the sector between nuclear and renewables," she said.

After consultation with Department of Energy officials and legal representatives, Kubayi said she had decided not to appeal the court decision and had instructed the department to review all existing and future Section 34 determinations to ensure their compliance with the ruling.

The court ruling set aside South Africa's intergovernmental nuclear cooperation agreements with Russia, South Korea and the USA. Existing agreements with China and France were not included in the ruling. Kubayi said the department would in future seek to standardise procedures when concluding intergovernmental agreements to ensure "no impropriety" would be suggested. She said the ministry would sign new agreements "with all five countries" and table them for parliamentary consideration "within a reasonable time".

The Nuclear Industry Association of South Africa (Niasa) today said it supported the minister's decision not to appeal the judgement. "As an association our founding principles of transparency and following due process are paramount, especially when setting the foundation for the start of a significant project with the potential to dramatically improve the lives of ordinary South Africans," Niasa managing director Knox Msebenzi said today. "We have no doubt that nuclear energy is the future of South Africa, as part of the overall energy mix."

The High Court judgement was made in response to challenges by Earthlife Africa and the Southern African Faith Communities' Environmental Institute.

Researched and written
by World Nuclear News