High Court to in­ter­vene in ‘rushed deal’

Weekend Argus (Sunday Edition) - - NEWS - SHEREE BEGA

TWO civil so­ci­ety watch­dogs have hauled Min­is­ter of En­ergy David Mahlobo and Eskom back to court over their “rushed nu­clear deal”.

On Thurs­day, Earth­life Africa Jo­han­nes­burg (ELAJHB) and the South­ern African Faith Com­mu­ni­ties’ En­vi­ron­ment In­sti­tute (SAF­CEI) launched an ur­gent ap­pli­ca­tion in the West­ern Cape High Court.

This was “a fur­ther at­tempt to halt what ap­pears to be a rush” by gov­ern­ment in de­ci­sion-mak­ing over the nu­clear en­ergy deal.

The or­gan­i­sa­tions first ap­proached the West­ern Cape High Court in Oc­to­ber 2015, which in a judgment in April this year set aside nu­clear agree­ments signed by the gov­ern­ment with Rus­sia, the US and South Korea.

Last week, the NGOs asked Mahlobo, Min­is­ter of Pub­lic En­ter­prises Lynne Brown, Nersa and Eskom to con­firm their com­mit­ment fol­low­ing the le­gal process of pub­lic con­sul­ta­tion on any pro­posed nu­clear deals.

But al­though the gov­ern­ment had un­til Mon­day to re­spond, they sup­plied no mean­ing­ful re­sponses and the two or­gan­i­sa­tions were now ask­ing the high court to order the rel­e­vant par­ties to com­ply.

“The Min­is­ter of En­ergy’s ut­ter­ances re­cently im­ply that the fi­nal­i­sa­tion of the In­te­grated Re­source Plan and the nu­clear pro­gramme are be­ing fast-tracked, yet the gov­ern­ment has failed to im­ple­ment the nec­es­sary pub­lic par­tic­i­pa­tion re­quired by the court judgment that was de­liv­ered on April 26, 2017.”

In court pa­pers, they state how the April judgment de­clared a se­ries of steps taken by the gov­ern­ment be­tween 2013 and 2016 in fur­ther­ance of its nu­clear power pro­cure­ment pro­gramme to be un­law­ful, un­con­sti­tu­tional and in­valid.

“Yet the ap­pli­cants have a rea­son­able ap­pre­hen­sion that the gov­ern­ment has in­deed em­barked, or im­mi­nently in­tends em­bark­ing, on a course of ac­tion to pro­cure nu­clear power plans di­rectly in con­flict with this court’s judgment.

“De­spite be­ing called upon to give un­der­tak­ings to con­firm that this is not the case, none of the gov­ern­ment re­spon­dents have given any as­sur­ances that they will not.

“On the con­trary, their pub­lic pro­nounce­ments are to the ef­fect they are ur­gently ready­ing them­selves to take im­me­di­ate steps to call for ten­ders for the pro­cure­ment of nu­clear en­ergy.

“Aside from it be­ing un­law­ful, there is nei­ther need for nor ca­pac­ity to com­mit to the pro­cure­ment of nu­clear en­ergy at this time.”

The two or­gan­i­sa­tions are ask­ing the court to de­clare that no steps may be taken for the pro­cure­ment of new elec­tric­ity gen­er­a­tion ca­pac­ity, de­rived from nu­clear power.

Sec­ond, the court will also be asked to di­rect Mahlobo and Eskom to pro­vide writ­ten re­ports on what steps they have taken, and the fu­ture steps they in­tend tak­ing, in re­la­tion to the pro­cure­ment of new ca­pac­ity de­rived from nu­clear power.

“Should the ev­i­dence con­firm that the min­is­ter or Eskom have taken any steps that are in con­tempt of the judgment from April this year, the court will be asked to grant the ap­pli­cants’ leave to ask for an order of con­tempt of court.”

Re­spond­ing to Earth­life-Africa’s no­tice of in­tended court ac­tion to op­pose the re­cent gov­ern­ment de­ci­sion to ap­prove the Duyne­fontein site near Koe­berg nu­clear, Necsa chief ex­ec­u­tive Phumzile Tshe­lane said this week: “I ap­peal to or­gan­i­sa­tions such as Earth­life Africa to be hon­est in their pub­lic ut­ter­ance and to stop the con­stant dis­tor­tion.”

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