The South African government's plan to bulldoze through a nuclear energy deal has been dealt what might be a fatal blow by the Cape Town High Court which has declared the plan invalid.1 It found that the government had not followed due process in making the decision to pursue a nuclear power option, as well as in other critical areas.
The court's decision has put paid to President Jacob Zuma's hopes of clinching the nuclear build programme before leaving office in 2019 if he completes his term.2
The case was brought to court by Earthlife Africa3 and the Southern Africa Faith-Communities' Environmental Institute.4 The two NGOs were challenging the way in which the state determined the country's nuclear power needs. The plan would have seen South Africa purchasing 9,600 megawatts of extra nuclear power.5
The judge, Lee Bozalek, ruled the government's action unconstitutional and found that five decisions it had taken were illegal. These included the government's decision to go ahead with the nuclear build and the fact that it had handed over the procurement process to the state utility Eskom.6 The court also ruled that Eskom's request for information from nuclear vendors, a step taken to prepare the procurement, which ended on 28 April 2017 was invalid.7
If it still wants to pursue the nuclear deal the government will have to start all over again. To do so legally it would have to open up the process to detailed public scrutiny. The country's electricity regulator would have to have a series of public hearings before endorsing what would be its highest ever spend on infrastructure.8 And any international agreements would have to be scrutinised by parliament.
All this will take time – something Zuma doesn't have. And it's unlikely that his successors will be as eager to champion a new deal as he has been. Meanwhile the facts about the deal will become public. This will undoubtedly demonstrate two of the biggest criticisms of the deal to be true: that the country can't afford it, and that it's energy needs have shrunk, making the vast investment redundant.9
The court's ruling has turned the nuclear procurement issue into one of the key markers of South Africa's political health. It's not yet clear whether the South African government will appeal the Western Cape High Court's decision, or comply with the judgement. A third option is that Zuma simply ignores the courts and continues to pursue the deal.
Demand and affordability
South Africa currently has more than enough electricity to meet its needs.9 This wasn't the case about five years ago when widespread outages hit the country.10 Since then new electricity generation capacity has been added11, through the rapid roll out of renewables12, and the opening up of two new giant coal burning plants. Consumption, particularly by industry, has steadily declined due to faltering economic growth and higher electricity prices. Demand has dropped so much that Eskom plans to close five coal burning power stations.13
The argument that the country needs another 9,600 megawatts was identified in documents that produced in 2011. These are now widely acknowledged as being badly out of date. Recent studies by the University of Cape Town's Energy Research Centre have shown that the country doesn't need to consider nuclear for another 20 years.14
A number of studies have also shot holes in the government's argument that the country can afford the proposed nuclear build. The Council for Scientific and Industrial Research has developed models showing that new nuclear is likely to be much more expensive than coal or renewables.15 The price ticket for nuclear – which some estimates put at more than R1 trillion16 – doesn't take into account the costs of operation, fuel, insurance, emergency planning or the regulation or decontamination at the end of the life of the reactors.
It would also impose a financial burden17 on the country's fiscus which it can ill afford18 particularly now that the economy has been rated at junk status.
So why is Zuma still pushing for the deal to go ahead? One source of pressure might be the Russians. South Africa's former energy minister, Tina Joemat-Pettersson, had been instructed to signed a deal with the Russian utility, Rosatom to build the reactors.19 South Africa has also already signed nuclear power cooperation agreements with other countries like the US and South Korea, which the court has declared void.20
A more likely reason for Zuma's zeal is the involvement of the Gupta family with whom he has close ties.21 The family's web of interests around the nuclear deal are complex.
What is known is that the Gupta family controls South Africa's only dedicated uranium mine.22 The family has developed close relationships with key individuals at Eskom. In November last year the country's then Public Protector pointed to overlapping directorships between Gupta-owned companies and Eskom.23
The report also suggested that Brian Molefe, Eskom's CEO, had a close relationship with the family. These revelations led to his resignation shortly after the report was published.24
Another strand in the complex web is the fact that Zuma's son Duduzane is a business partner of the Guptas while other relatives are directly employed by them.25
Despite his determination, Zuma has become increasingly isolated in his quest for nuclear procurement. The African National Congress is clearly divided on the issue. This is evident from the fact that Zuma has resorted to reshuffling his cabinet to make way for more compliant ministers without reference to party officials as would be the norm.26
The private sector has also come out against the idea27 while the list of civil society organisations opposed to nuclear expansion goes well beyond the environmental lobby and includes a broad spectrum of foundations, faith communities, human rights campaigners and defenders of the country's constitution.
The nuclear judgement in Cape Town indicates that South Africa's legal system has not yet been "captured" by private interests.
The key question is whether Zuma and Eskom will accede to the verdict, or whether they challenge it while continuing to ignore the rule of law. Not only would this subvert the country's constitution and its democratic form of government, it would also deny the constitutional right to popular participation in energy democracy.
The stakes are high – for the country as well as for the president. Will he continue to treat the country's energy future with impunity? Or will this judgement symbolise the rollback of the democratic dispensation envisaged by the authors of the country's constitution?
Reprinted from The Conversation, https://theconversation.com/court-ruling-on-zumas-nuclear-deal-is-a-mark...
NGOs respond to South Africa's High Court ruling
Earthlife Africa Johannesburg (ELA) and Southern African Faith Communities' Environment Institute (SAFCEI) were jubilant about the extraordinary April 26 High Court ruling that:
- set aside the Ministerial determination that South Africa required 9.6 gigawatts (GW) of new nuclear capacity, and that this should be procured by the country's Department of Energy;
- set aside the later Ministerial determination that identified South African utility Eskom as the procurer of the nuclear power plants (both determinations were ruled to be invalid because of the failure to include a public participation process);
- found that nuclear cooperation agreements between South Africa and Russia, the USA and South Korea were unconstitutional and unlawful, and should be set aside; and
- ordered the government to pay the legal costs incurred by ELA and SAFCEI.
Activist and film-maker Zackie Achmat joined a jubilant crowd on the steps of the High Court in Cape Town to celebrate the court ruling. "I think Earthlife Africa and SAFCEI can really celebrate this judgment," he said. "It is a total victory against corruption and it is a total defeat against Jacob Zuma and the corrupt Guptas and the corrupt Russians.''
SAFCEI said: "At SAFCEI we are still dancing with delight at the momentous ruling from the Cape High Court that sets aside key points in the nuclear deal process. After 18 months of delays and frustrations, this was an immense win for Earthlife Africa Johannesburg and SAFCEI, and all who have supported us throughout. We are immensely grateful for the support and encouragement we have received from Earth Keepers all over the world – it is only through this that we have been able to prevail in the face of all odds."
SAFCEI noted that the High Court ruling was released on the anniversary of the Chernobyl disaster and the day before the anniversary of South Africa's Freedom Day: "Freedom Day, the day of South Africa's first democratic election in 1994, ushered in an era where the constitution was supposed to be the guide to how society would be governed. In recent years, we have seen unabashed looting of the government coffers, the capture of key state institutions such as Eskom, for personal greed, and the apathetic failure of the government to be accountable to the people of South Africa."
SAFCEI spokesperson Liz McDaid said: "Along the road to the courts, we experienced delays and dirty tricks, but we persevered and now we have been vindicated. The court has found in our favour. SAFCEI and ELA-JHB based their case on the South African Constitution, which states that when it comes to far-reaching decisions, such as the nuclear deal, which would alter the future of our country, government is legally required to debate in Parliament and do a thorough, transparent and meaningful public consultation."
SAFCEI youth ambassador Siphokazi Pangalele said: "We are so glad for the result, but it is clear that we still have a lot of work ahead of us. In the past few weeks citizens have demonstrated their willingness to mobilise against corruption and the capture of our State. The nuclear deal is at the centre of it all."
An ELA statement said: "A lot has happened in the two months since the final arguments were heard in the nuclear court case in February 2017. The President's late-night cabinet reshuffle at the end of March has spurred countrywide marches and a vote of no confidence is looming. Many more discrepancies have since been reported, with the nuclear deal being in the spotlight in the latest crises in political leadership."
Adrian Pole, legal representative for ELA-JHB and SAFCEI, said: "Before any nuclear procurement can proceed, the Minster of Energy ... will be required to make a new determination in accordance with a lawful process that is transparent and includes public participation. This will necessarily require disclosure of relevant information that to date has been kept from the public, including critical information on costs and affordability."
Makoma Lekalakala from ELA welcomed the court ruling as a victory for "justice and the rule of law", but said organizations and citizens are planning to launch an "even bigger campaign soon to ensure this judgement is only the start of people holding the government to account on its energy deals."
For links to the High Court ruling and other legal documents, see:
SAFCEI, 26 April 2017, Nuclear Deal Blocked! Judgement made on the South African Government's Secret Trillion-Rand Nuclear Court Case', http://safcei.org/nuclear-deal-blocked/