Cape Town – Eskom can proceed with the request for proposals (RFPs) for the 9.6 GW nuclear new build procurement programme this week, after the Western Cape High Court ruled on Tuesday that it could not prevent the process.
Advocate David Unterhalter SC, arguing on behalf of environmental groups Safcei and Earthlife SA, had asked judges Lee Bozalek and Elizabeth Baartman to freeze the issuing of RFPs until the legal matter with the Department of Energy had been finalised.
This followed Fin24’s report, which was written and published during a court adjournment on Tuesday, in which it quoted Eskom acting CEO Matshela Koko saying Eskom would issue the RFPs this week.
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Koko was speaking to Fin24 after advocate Marius Oosthuizen SC, on behalf of the DoE, revealed in court that Energy Minister Tina Joemat-Pettersson had issued a new determination last week that was being gazetted to move the procuring agent of the nuclear new build programme from the DoE to Eskom.
The revelation of the determination was presented to court in a bid to postpone the court case, in which the environmentalist groups are legally challenging government’s nuclear procurement process, focusing on an intergovernmental agreement signed with Russia in 2014.
The applicants believe state legal documents indicate that South Africa did sign a binding nuclear deal with Russia and are challenging the legality of the agreement.
While Unterhalter was prepared to accept the postponement, he said the Fin24 report, which he presented to the judges, revealed that the government was moving ahead with the process of procuring nuclear while the legality of the process was still before the courts.
“Government is using a variety of manoeuvring (tactics) to avoid judicial scrutiny and to proceed in haste with the issuing of RFPs without proper order of legality,” he said.
Unterhalter had argued that “the peril is very, very great” if the RFPs are released. “It is important that this is done in proper and orderly fashion. There is no urgency.
“Once the RFP is announced, the starting gun has gone off.”
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However, in postponing the case, Judge Bozalek said that the “entire pre-procurement process does not strike us as one that can be rushed through in a few months”.
“We are hamstrung by the lack of hard factual material in the duration of the RFP process,” he said. “As a result, we are not persuaded that the conditions sort by the applications are justified.”
Arguing for the RFPs to be released, Oosthuizen had argued that it is only “a market inquiry”.
“It is not an invitation for an offer,” he said. “An RFP is required to establish the need of government of needs and services for government.”
Unterhalter argued, unsuccessfully, that if the RFPs are released, then the country could be taken to an international court should it not proceed with the programme. “It will be taken to an international court and South Africa could be liable to R1trn worth of damages.”
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