NERSA’s version on why they do not want to release records on granting Karpowership generation licences unlawfully

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  • The National Energy Regulator of South Africa (NERSA) said they welcome the judgement of the High Court of South Africa (Gauteng Division, Pretoria) delivered on Wednesday, 5 June 2024, disposing off the interlocutory application, and will abide by the High Court ruling.
  • They say that their opposition to the interlocutory application should not be misconstrued as being frivolous or obstructive. 
  • They seek to set the record straight by providing their version and the proper context regarding NERSA’s opposition to Green Connection and OUTA’s interlocutory application to compel NERSA to file confidential records in the public record.

Here is their statement:

On 25 May 2020, NERSA concurred with the Minister of Mineral Resources and Energy on the new generation determination. The concurrence was subjected to stakeholder consultation and a public hearing process, as required by the National Energy Regulator Act, 2004 (Act No. 40 of 2004), read with the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).

Related news: Time for NERSA and Mantashe to account for unlawful Karpowership SA licence mess

On 13 April 2021, NERSA received electricity licence applications from Karpowership SA Saldanha Bay (RF) (Pty) Ltd, Karpowership SA RF Coega (RF) (Pty) Ltd and Karpowership SA Richards Bay (RF) (Pty) Ltd in line with the Electricity Regulation Act, 2006 (Act No. 4 of 2006). NERSA granted generation licences to Karpowership as part of the Risk Mitigation Independent Power Producer preferred bidder process – without environmental impact assessment approval in place.

On 26 April and 4 May 2022, Green Connection and OUTA took NERSA’s decision on judicial review. NERSA resolved to oppose the application and filed its record of decision as required by Rule 53 of the Uniform Rules of Court. NERSA filed a redacted record, as a confidentiality decision had been made in terms of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), based on the request by Karpowership and in accordance with NERSA’s processes.

OUTA and Green Connection filed an interlocutory application to compel NERSA to file the confidential record in the public record. Both NERSA and Karpowership opposed the application. However, Karpowership withdrew its opposition, but did not give NERSA the authority to release the confidential information. NERSA therefore continued to oppose the application to preserve the decision and not violate the Promotion of Access to Information Act, 2000.

NERSA’s opposition to the interlocutory application should not be misconstrued as being frivolous or obstructive. NERSA remains committed to transparency and adherence to the Constitution pertaining to access to information and will now focus on the pleadings in the judicial review of its decision to approve Karpowership’s electricity generation licences.

According to the National Energy Regulator Act, 2004(Act No. 40 of 2004), any person may institute proceedings in the High Court for the judicial review of an administrative action by the Energy Regulator in accordance with the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000). NERSA, as a public and independent entity, is committed to protecting confidential information submitted by parties unless the confidentiality is challenged successfully.

Source: NERSA


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