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Nuclear judgment: what government now needs to do

Apr 27 2017 21:00
Eugenie du Preez and Fin24

Cape Town -Civil rights bodies and opposition parties have widely welcomed the Western Cape High Court decision that the government's nuclear cooperation agreements with the US, Russia and South Korea are unconstitutional and unlawful.

But what does the judgment mean, and how can the average South African interpret the findings?

The court ruling, said the Organisation Undoing Tax Abuse (OUTA), means that all current nuclear-related dealings – Requests for Information (RFIs) and Requests for Proposals (RFPs) - pertaining to new generation capacity are set aside. It also means that prospective tender contracts awarded based on Electricity Regulation Act 4 would be void and unenforceable.

So, if the government wants to pursue its nuclear ambitions, in terms of the court ruling the following would now be needed:

  • A renewed valid Integrated Energy Plan (IEP)/Integrated Resource Plan (IRP) process, based on accurate, relevant and well-informed information, combined with meaningful public participation;
  • Adjustment of the outcome of the IEP/IRP process, also considering the impact of national energy efficiency strategy;
  • Revisiting of the Environmental Impact Assessments (EIA) and public participation by people affected by the designated nuclear sites; and
  • Approval of the nuclear procurement process by Treasury.

In addition, it is important to note that this judgment has a significant impact on Eskom’s recent application to Treasury for exemption from the Public Finance Management Act, in terms of its plans to fast-track the new nuclear build programme.

OUTA cautioned on Wednesday that the battle against nuclear is not yet over. Ted Blom, portfolio director on energy matters, pointed out that it is still possible for the decision to be appealed.

READ: Nuclear battle not over yet, warns OUTA

“We must not relax, we firmly expect an appeal, we will be absolutely astonished if there is no appeal… There could be an appeal or even disregard of the judgment. We would ask the public to remain vigilant and alert.”

Nucelar expert fights back

This has already happened, with Dr Kelvin Kemm, chairperson of the South African Nuclear Energy Corporation, saying: "I am of the opinion that an appeal is necessary, since there are constant references in public which are wrong and which flavour the debate."

READ: No secret nuclear deal, court ruling must be appealed - expert

Kemm pointed out that "the court has not ruled on the wisdom, or otherwise of nuclear power. A false impression has been created that this judgment is anti-nuclear. It is not.”

He added: “What is offensive to me, are implications from the anti-nuclear lobby that South African nuclear professionals are incompetent and unaware of technical details of nuclear and of costs associated with the project."

Kemm rubbished the concept of a secret nuclear deal, saying: "There is none that I know of." He also said: “There are constant fake references to a monetary figure of R1trn. That figure is the fictitious creation of the anti-nuclear lobby. Serious financial studies carried out by nuclear professionals which have been made public, are ignored."

Ruling points to need for transparency

OUTA said the judgment is compelling and encouraging for society, as it points to the need for government to act rationally and adhere to the Electricity Regulation Act’s administrative process. "This requires, among other things, a credible IRP for the nation’s electricity requirements, in order to make such determinations for new energy build programmes," said OUTA.

“It is clear to OUTA that failing the good work of the legal challenge brought against the Department of Energy by civil action organisations such as the Southern African Faith Communities' Environment Institute and Earthlife Africa, the authorities would have got away with introducing the most expensive and elaborate capital expenditure project, one which would have crippled this country going forward,” Blom explained.

“We are tired of government’s approach that runs roughshod over the need for meaningful public engagement and due process,” said OUTA chairperson Wayne Duvenage.

“The pro-nuclear lobbyists and government officials arrogantly ignore their need to be accountable and to provide detailed explanations to the public on why we need new nuclear plants, or what the true costs of these will be.”

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