In her first briefing to MPs, Energy Minister Mmamaloko Kubayi said on Tuesday she had yet to obtain clarity on the implications of the high court ruling invalidating the nuclear build procurement process thus far.
Kubayi told Parliament’s portfolio committee on energy her department’s legal team would mull the judgment by Judge Lee Bozalek in the Western Cape High Court last week.
She stressed that the ruling did not push nuclear procurement off the table but merely faulted the process that was followed to arrive at it. Kubayi expressed concern about the implications of the court setting aside two ministerial determinations by her predecessors that laid the ground for Eskom to issue a request for information from prospective bidders.
“From where I am reading the judgment does not say you can’t do nuclear, the judgment says the process followed was flawed. So it’s a process issue.”
The minister said her options could include an appeal or an application to court for a declaratory order.
“I’m saying we have to look at does that translate that we have to dump what we have in the APP (annual performance plan)? I don’t think so,” she said referring to the plan’s provision for preparation for nuclear procurement.
Kubayi said from where she sat, the preparatory work was a step the department would have to conclude “whether we do it now, or we do it later”.
However, speaking after the briefing, she denied that she was determined to proceed with plans to expand South Africa’s nuclear power capacity by 9,600 megawatt.
“I have not decided that yet. I have not made up my mind,” Kubayi told ANA.
She assured the committee that whatever the decision on nuclear, the department was committed to ensuring transparency and she would be happy to have a public debate on whether the country needed additional nuclear reactors.
“We will definitely be transparent in the process we will be able to explain what we are doing, so I don’t think there is any intention of hiding.”
Democratic Alliance energy spokesman Gordhan Mackay said it was patent that the minister did not plan to halt the nuclear procurement process and there were indications that Eskom was planning to push ahead with a Request for Proposals this year.
Kubayi told MPs it was unfair to suggest that she was in favour of nuclear and opposed to renewable energy, but openly conceded that she had called halt to the signing of agreements with independent power producers last month. She said she did so because she had not yet been in the post for a fortnight and needed to apply her mind to the deals.
There would be a thorough departmental process looking at policy decisions, including renewable energy, and deciding whether it was “value for money” and in the best interest of the country.
Judge Lee Bozalek set aside two determinations gazetted by former energy minister Tina Joemat-Pettersson on nuclear procurement 2015 and 2016, as unlawful and unconstitutional and also invalidated nuclear cooperation pacts South Africa signed with five countries, including Russia.
The determinations were validated by the national energy regulator Nersa but the court held that its concurrence was irrational, partly because it did not invite any public input. The court ruling effectively declared void Eskom’s RFI that closed at the end of April.
At issue now is how government responds to the ruling.
Liz McDaid from the Southern African Faith Communities’ Environment Institute (SAFCEI), which launched the court challenge against the nuclear expansion programme along with Earthlife Africa, said it was true that it had been about whether the government had followed a constitutional process. The two organisations had build their argument around the constitutional requirement for a transparent parliamentary process and meaningful public participation.
McDaid hinted that activists and pressure groups would ensure that when it is repeated the process meets with vociferous opposition.
Critics of the contested nuclear build say the country does not need more nuclear plants and cannot afford the price tag, which some put at R1 trillion.
Kubayi rubbished that figure, saying she did not know where it came from.
– African News Agency (ANA)
