Validity of South Africa’s 2500MW nuclear energy procurement programme challenged in court

  • The Democratic Alliance, an opposition party in South Africa, has served court papers on the Minister of Electricity and the National Energy Regulator of South Africa (NERSA) in relation to their s34 determination to procure 2500Mw of new nuclear power generation.

“We contend that the determination was procedurally unfair, and failed to permit public comment on the submissions on which it was based. We will therefore be seeking to have it set aside,” said the DA in a statement.

On 26 January of this year, the Minister of Electricity, Kgosientso Ramokgopa, published the determination in the Government Gazette. The DA claims that the determination published – signed on 10 March 2020, by the Minister of Mineral Resources and Energy, Gwede Mantashe – is invalid, because it was made by the wrong Minister, namely Mantashe. By the time the determination was finally made (in January 2024, or alternatively when NERSA concurred in August 2023), the power to make that determination rested with Ramokgopa.

The DA notes further that the gazetted determination does not include a key requirement of NERSA, that the procurement of additional nuclear generation must be on the basis of an Engineering, Procurement and Construction (EPC) contract, rather than fragmented contracts.

In addition, they claim that more than two years passed between the time when Mantashe decided to pursue the nuclear new build and when NERSA concurred with that decision. As was demonstrated in the 2017 Earthlife Africa v Minister of Energy judgment, relating to the ANC government’s last attempt to procure nuclear power, public comment and input on s34 determinations are a critical component of the process, expressly provided for in s10 of the National Energy Regulator Act. That judgment also found that a two year delay in gazetting the determination required that NERSA needed to provide its concurrence afresh, which would necessitate a fresh public participation process.

Accordingly, the DA believes the process followed by NERSA and the Minister of Electricity is procedurally flawed, and therefore both illegal and invalid. A nuclear new build will in all likelihood be the biggest infrastructure project (in terms of pure cost) South Africa has ever undertaken. It is therefore vital that it be competitive, transparent and untainted by impropriety.

The DA explains that given the dire circumstances in which South Africa finds itself with regard to loadshedding, it is blatantly apparent that a nuclear new build can only be viewed as a long-term solution. It is not an adequate response to the immediate crisis. “There is much more that needs to be done in the short to medium term to strengthen and expand our transmission infrastructure and to bring additional generation capacity online as quickly as possible,” they said.

“The Democratic Alliance remains committed to ensuring that all procurement processes are legally compliant, and that our ministers, government departments and regulatory authorities act within the bounds of the law. We will not permit the ANC to misuse process to fasttrack pet vanity projects, or to line their own pockets as they did with the building of Medupi and Kusile,” the DA concluded.

Author: Bryan Groenendaal

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