Eskom's nuclear arrogance will be challenged

The case, brought by Earth Life Africa (ELA) and the South African Faith Communities Environmental Institute (SAFCEI), related inter alia to the possible unlawfulness of the Ministerial Determination underpinning the procurement of 9.6 GW of nuclear energy at an estimated cost of ZAR 1 trillion.

The case was postponed with the Department of Energy tendering the wasted legal costs of the applicants, estimated by the Organisation Undoing Tax Abuse (OUTA) to be in the range of R5 - 10 million. The reason for the postponement was a fresh Ministerial Determination issued by the Minister of Energy, seeking to cure the defects of the original determination of December 2013, by making Eskom the procurer of the new Nuclear Energy build program as opposed to the Department of Energy. This was handed into Court on the morning of the trial without notice, even though the Minister signed it over a week ago.

“Eskom’s action is an expression of disrespect for the democratic and legal process”, commented Ted Blom, OUTA’s Portfolio Director of Energy. “A strong chance existed that the court would have found the original determination to be illegal and set aside for a number of reasons, one being the lack of a meaningful public consultation processes. This time around, the Government and Eskom have chosen to wilfully deny the public a chance to comment on the biggest procurement decision likely ever to be made in the country’s history”.

“Government are simply manipulating the legal process to ensure they can commence their nuclear energy procurement process before the High Court has an opportunity to scrutinise their shady dealings,” says Wayne Duvenage, OUTA’s Chairperson. “What makes matters worse, is the fact that an updated Integrated Resource Plan (IRP) for electricity is currently underway and all indications point to no need for any nuclear in South Africa’s energy mix.”

OUTA is suspicious that despite the Ministerial Advisory Commission on Energy’s recommendation to the Minister of Energy, that she should publish the IRP as the lowest cost “base case” path for the country, this was not heeded in the public presentations. “Had they done so, nuclear energy options would have been excluded from South Africa’s future energy mix entirely. Ignoring her own experts was bad enough,” said Duvenage, “but there is no way she can claim that she can legitimately make a determination on a six year old 2010 IRP, for which it is generally accepted that the conditions have fundamentally changed.”

The court case is expected to proceed in February by which time Eskom’s procurement process will be well into its initial phases.

“Eskom and the DoE’s antics have to be stopped now,” Duvenage concluded. “This relentless and irrational conduct is endangering the country’s economic stability for decades to come. OUTA is currently assessing its legal options and other avenues on this matter.”