Lawyers unpack High Court's nuclear decision

Last week's Western Cape High Court ruling that certain of the SA Government’s decisions on the procurement of nuclear new generation capacity were unlawful and unconstitutional is taken up in an article on the Moneyweb site by Baker McKenzie Johannesburg’s Amanda Scribante and Kieran Whyte. ‘The applicants in the case – Earthlife Africa Johannesburg and the Southern African Faith Communities’ Environment Institute – challenged the various steps taken by the South African Government in furtherance of its nuclear power procurement programme,’ they write. ‘The steps challenged were the two separate determinations made by the Minister of Energy in 2013 and 2016, respectively, in terms of section 34 of the Electricity Regulation Act, 2006; and the constitutionality of the tabling by the Minister before Parliament of three intergovernmental agreements (IGAs) during 2015,’ they state. ‘The court held that a rational and fair decision-making process would have made provision for public input, and that the non-transparent process adopted by the SA Government for the procurement of nuclear power with “far reaching consequences” for the SA public and the allocation of resources by government was neither rational nor lawful,’ they note. ‘When reviewing the 2016 determination, the court held that given the elapse of two years since Nersa’s concurrency in the 2013 determination, the reliance on the outdated Integrated Resources Plan 2010, and the changed format of the determination, most particularly in its designation of Eskom or its subsidiaries as the procurer in respect of the nuclear programme, it was, in the court’s view, incumbent upon Nersa to afford members of the public and/or interested and affected persons an opportunity to influence the decision,’ explain Scribante and Whyte. ‘As such, the court held that both the 2013 and 2016 determinations were unlawful and unconstitutional, and were accordingly reviewed and set aside. As a result, the judgment has set aside any Request for Proposals or Requests for Information issued as a result of the determinations. The RFI as issued by Eskom is accordingly set aside. Given the submission date for responses to the RFI, 28 April 2017, any party that has already submitted information under such process should carefully consider the RFI rules and notifications from Eskom, if any, as to the treatment by Eskom of such information,’ they note.

Full analysis on the Moneyweb site