Nuclear deal ruling just another bump in the road, say experts

It was a case of David versus Goliath when two small organisations took on the South African and Russian governments and succeeded in stopping the controversial nuclear programme in its tracks.

The Southern African Faith Communities Environment Institute (SAFCEI) and Earthlife Africa Johannesburg jointly filed a court application to stop the nuclear build programme, which is estimated would cost the South African government R1 trillion.

On Wednesday, Judge Lee Bozalek of the Western Cape High Court ruled that South Africa’s deal with Russia’s Rosatom to build nuclear reactors was unlawful, forcing South Africa to go back to the drawing board.

Bozalek said any request for information to kickstart the procurement process was set aside, as was the cooperation pact.

The deal had included a favourable tax regime for Russia and placed heavy financial obligations on South Africa, he added.

“Seen as a whole, the Russian IGA (intergovernmental agreement) stands well outside the category of a broad nuclear cooperation agreement and at the very least, sets the parties well on their way to a binding, exclusive agreement in relation to the procurement of new reactor plants from that particular country,” Bozalek said.

The matter will now return to parliament for debate.

The opposition Democratic Alliance (DA) has vowed to use all its powers to block the deal.

But the ruling would not stop the nuclear plan from going ahead, according to analysts, who said South Africa could still pursue nuclear deals with Russia, South Korea or the US.

Experts said government now had to act if it wanted to get the procurement ball rolling by the end of its political term.

Travis Hough, business unit leader for energy and environment at consultancy Frost & Sullivan Africa, said: “This is most probably just another bump in the road and nothing is going to derail the nuclear programme.”

Legal expert Johan Lorenzen said it only meant that government would need to start the process over in parliament.

“To my understanding, the tabling in parliament of the deals have been set aside rather than the deals themselves. They need to properly table the deals in parliament,” he said.

Lorenzen added the ruling was merely a stumbling block that government could easily overcome.

The signing of the deals was not unconstitutional, he said, because they had no legal effect until parliament approved them.

“One thing worth noting is that the procurement process may only follow in terms of an appropriately approved IRP, so they should be able to get approval if the IRP is lawfully put in place.”

However, political analyst Dr Daniel Silke said public awareness and opposition to the controversial government nuclear build programme would make it very difficult for the authorities to decide whether to go ahead with it or not.

The ANC’s leftist allies welcomed the court ruling.

Both the SACP and its youth wing, Young Communist League of South Africa (YCLSA), said the government got its priorities wrong with the proposed nuclear programme.

The YCLSA urged Finance Minister Malusi Gigaba to review the R1 trillion budget allocated for the nuclear build programme and divert the funds to socioeconomic and welfare programmes.

Silke said the court decision would delay the implementation of the programme by years.

“By that time, possibly we may have a different ANC leadership with a different approach to nuclear energy.

“It would be left up to the new ANC leadership whether to go ahead with the programme or not.”

He said the government would face many difficulties as public awareness had increased around the nuclear issue.

Earthlife Africa said the ruling was a win for justice and the rule of law, proving that government could not overrule regulations and legislation.

It is unclear whether the South African government would appeal the ruling.

The operator of Africa’s only nuclear power station, Eskom, wants to add 9 600 megawatts of nuclear capacity – equivalent to up to 10 nuclear reactors – to help wean the economy off polluting coal in what could one of the world’s biggest nuclear contracts in decades.

South Africa and Russia signed an IGA in 2014 that sealed a cooperation pact between state-owned nuclear group Rosatom and stateowned utility Eskom.

Eskom chief nuclear officer Dave Nicholls said: “We haven’t been through the judgment yet so we can’t comment.”

Rosatom officials in Moscow and in Johannesburg said the company “could not comment on legal disputes between SA entities that do not directly involve us”.

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