Nuclear deal ruled as unlawful and unconstitutional: Learn all about the dark secrets of this shady deal

The Western Cape High Court ruled on Wednesday that the South African government’s nuclear agreements with Russia, Korea and the US were unlawful and unconstitutional.

In a landmark ruling, the Court also scrapped the South African government’s decision to buy about eight nuclear power stations — 9600MW of nuclear power. This decision was first gazetted in 2013 by former Energy Minister Ben Martins and later amended and gazetted in 2016 by former Energy Minister Tina Joemat-Pettersson.

The court’s decision has also paved the way for citizens to have a say in any future decisions about a nuclear future for South Africa.

The ruling set aside requests by government or Eskom for proposals and information from nuclear vendor countries.

The matter was brought by Earthlife Africa and the SA Faith Communities’ Environment Institute (Safcei) against the minister of energy, the president, the National Energy Regulator of SA (Nersa) and Eskom.

The legal teams for the two civic organisations argued that the government’s decision to expand the nuclear programme by 9600MW was unlawful. They also argued that the decision by Joematt-Pettersson to table agreements with Russian, Korean and US in a manner which ensured they did not come before Parliament was unconstitutional.

In their ruling, Judges LJ Bozalek and Elizabeth Baartman found that the Russian inter-governmental nuclear agreement was “well outside a broad nuclear co-operation agreement.”

The Court said that “at the very least it sets the parties well on their way to a binding, exclusive agreement in relation to the procurement of new reactor plants from the particular country.”

Bozalek said Joemat-Pettersson’s decision to table the Russian nuclear agreement under section 231 (3) of the Constitution was “at the very least, irrational”. This decision was also set aside.

The judgment stated that the minister appeared either to have failed to apply her mind to the requirements of the Constitution in relation to the tabling of the Russian agreement, or “at worst to have deliberately bypassed its provisions for an ulterior and unlawful purpose”.

The court said the Korean and US agreements, made many years ago but tabled only in 2015, could also not be tabled under section 231 (3) and must be set aside.

The court said the Constitution provided that everyone had the right to administrative action that was lawful, reasonable and procedurally fair.

When former energy ministers Martin and Joemat-Pettersson had taken decisions in 2013 and 2016 respectively, that South Africa would procure 9600MW of new nuclear power, the National Energy Regulator of SA (Nersa) was legally bound to consider the ministers’ proposed decisions. Only if Nersa concurred with the decision did it become lawful and binding. Nersa had concurred with the ministers in both instances, and they were gazetted.

However, the court found that the short period between the two ministers asking Nersa to concur with their decisions made it “most unlikely that a fair procedure could have been carried out”.

Judge Bozalek said: “There is no serious dispute that the decision to procure 9600MW of new nuclear power will have far-reaching consequences for the South African public and will entail very substantial spending. The applicants estimate the cost, which will ultimately be met by the public through taxes and increased electricity charges, could be one trillion rand – and this estimate was not disputed by the respondents.”

This huge cost allocated to nuclear power would inevitably affect spending on other government programmes such as health and education. The nuclear programme would also have “potentially far-reaching implications for the environment”.

Because of these considerations, the court said, if Nersa had carried out a rational and fair decision-making process, it would have made provision for the public to submit its views before concurring with the minister’s proposed nuclear decision. It did not do so. Nersa’s decision was therefore procedurally unfair and breached the Promotion of Administrative Justice Act.

In addition, Nersa was under a statutory duty to act in the public interest, and in a transparent manner.

“It (Nersa) has failed to explain how it acted in the public interest without taking steps to ascertain the views of the public,” the judgment read. For these reasons, Nersa’s decisions failed the test for rational decision-making. The decision for new nuclear power was thus set aside.

Speaking outside the court earlier today, Earthlife Africa member Makoma Lekalala said many South Africans opposed nuclear power.

“We are holding government accountable….The future is in our hands and we are not going to allow unjust energy decisions to be taken on our behalf. This government must invest more in renewable energy. It is the people’s power,” Lekalala said.

Costs were awarded to the applicants.

Details of the secret nuclear deal revealed

Meanwhile shocking details of the secret nuclear deal that Energy Minister Tina Joemat-Pettersson signed with Russia can, for the first time, be revealed. The text, which has been jealously guarded by her department and Russian nuclear company Rosatom, holds many dangers for South Africa.

It creates an expectation that Russian technology will be used for South Africa’s trillion-rand fleet of new nuclear power stations. And by laying the groundwork for government-to-government contracting, it appears designed to sidestep the constitutional requirement for open and competitive tendering.

Once the agreement comes into force, the Russians will have a veto over South Africa doing business with any other nuclear vendor. And it will be binding for a minimum of 20 years, during which Russia can hold a gun to South Africa’s head, in effect saying: “Do business with us, or forget nuclear.”

The agreement confirms the government’s intention to make “Atomic Tina’s” energy department the procuring agent for the nuclear programme rather than Eskom – where the country’s nuclear expertise lies, despite the utility’s travails. Joemat-Pettersson signed the agreement in Vienna on September 21 last year, three weeks after President Jacob Zuma held talks with his Russian counterpart, Vladimir Putin, at the latter’s country estate.

It led to an immediate outcry as it appeared that Russia was being favoured over other vendor countries. But the energy department said the agreement merely “initiates the preparatory phase for the procurement for the new nuclear build programme” and it undertook to sign agreements with other nuclear vendors – France and China – next.

It asserted again this week that it is still “engaged in the preprocurement phase” and the “type and nature of [the] procurement process has not been approved by Cabinet”.

The department has refused  requests under the Promotion of Access to Information Act for copies of the Russian, French and Chinese agreements, citing “the delicate process of negotiations … with other countries”.

The terms of the agreement lean heavily in Russia’s favour. They:

• Indemnify the Russians from any liability arising from nuclear accidents during the reactors’ life. The agreement says South Africa is “solely responsible for any damage both within and outside the territory of the Republic of South Africa”
• Hand the Russians a host of regulatory concessions and “special favourable treatment” in tax and other financial matters, but offer South Africa no such incentives; and
• Require Russia’s permission if South Africa wants to export nuclear technology it develops locally as a result of learning from the Russians, thereby hindering government’s aim that the nuclear new-build programme will develop a globally competitive local nuclear industry.

David Unterhalter, a University of Cape Town law professor and constitutional expert, this week said the agreement appeared to go far beyond the type of general framework document that government officials have declared it to be.

“While it could perhaps be argued that the [introductory] provisions could be understood as forming a general co-operation agreement, when one gets down among the weeds it seems pretty clear that this is not just an agreement to agree.

“There is a number of specific matters dealt with in a way that suggests this agreement is intended to give rise to executable obligations … in other words obligations that appear to be enforceable even if via diplomatic rather than legal channels.”

The agreement is to be tabled in the National Assembly and the National Council of Provinces before it becomes binding, but there is uncertainty about the process to be followed.

Copies of the equivalent co-operation agreements concluded with Korea in 2011 and the United States in 2009 where obtained. In contrast to the Russian agreement, these specify more general collaboration on nuclear matters, do not refer to specific technologies and do not use decisive language.

The department has concluded agreements with France and China since the Russian deal, but these remain under wraps.

Numerous officials in the department of energy, international relations, trade and industry, as well as in the treasury and the chief state law adviser, raised concerns about clauses in the draft Russian agreement, which the Russians first put on the table in mid-2013, after Zuma paid Putin a “working visit” to the Black Sea resort of Sochi.

But these officials were ignored and, in some cases, sidelined.

A comparison with an earlier draft shows some clauses to which they objected have been retained almost unchanged in the signed version, and others with only minor revision.

To our understanding, chief state law adviser Enver Daniels provided detailed input on the draft agreement but was given no insight into the version Joemat-Pettersson signed. He was not privy to whether his advice had been followed.

Instead, the process of finalising the agreement was managed by a powerful group of officials in the energy department, two of whom accompanied Zuma to Russia on his “medical” holiday last August, a month before the deal was signed.

One official, Senti Thobejane, is nominally special adviser to Joemat-Pettersson, but is also believed to advise Zuma and the ANC on nuclear matters. The other official, Zizamele Mbambo, is deputy director general for nuclear in the energy department. Both officials were present at the signing ceremony in Vienna.

Mbambo denied ignoring other departments’ input: “[They] commented on the agreement and their comments were addressed.”

Rosatom said it needed to send answers it had prepared to the energy department for feedback first: “It would not be ethical in our minds to divulge information unilaterally on a bilateral agreement.”

Presidency spokesperson Mac Maharaj also said he was “awaiting feedback”.

During , his state of the nation address Zuma told Parliament that “all … countries will be engaged in a fair, transparent, and competitive procurement process to select a strategic partner or partners to undertake the nuclear build programme”.

He set an ambitious target of connecting the first unit to the grid within seven years. – Additional reporting by Sam Sole & Stefaans Brümmer.

How we got the secret document

The supposedly confidential agreement is published among the list of bilateral treaties on the website of the legal department of the Russian foreign ministry.

It was first obtained by South African environmental organisation Earthlife Africa Johannesburg by Russian anti-nuclear activist and head of Ecodefense Vladimir Slivyak, who got it from a source in the Russian foreign ministry. It is in Russian, and includes the signatures of Rosatom’s director general Sergey Kirienko and South African energy minister Tina Joemat-Pettersson.

A Russian translator commissioned by Earthlife to translate the agreement into English subsequently also found it publicly available on the ministry’s website.

Annalists  has compared Joemat-Pettersson’s signature on the document with her signature on a current document; they are identical