Nuclear deal: State misses another court deadline

24 May 2016

Cape Town – The government must respect the rules and commit to following the timeframes, leading environmentalists said after the state once again failed to submit answering affidavits in the court case regarding its nuclear energy agreement with Russia.

Earthlife SA and the Southern African Faith Communities' Environment Institute (Safcei) claim that Energy Minister Tina Joemat-Pettersson acted unconstitutionally in not submitting the government's nuclear deal with Russia to Parliament.

Following the Department of Energy (DoE) and Joemat-Pettersson’s failure to meet the original May 13 deadline to submit answering affidavits, the State Attorney on Monday said they could also not meet the 20 May Rule 30A notice deadline, a rule that prohibits further delays.

“Unfortunately the first and the second respondents are still not in a position to file answering affidavits and are still in the process of drafting same,” the State Attorney’s office said in a letter to the environmentalists on Monday.

“As already pointed out the respondents have difficulty in finalising their answering affidavits due inter alia to the bulk of the founding affidavit, as supplemented, the complexity of the application as well as the importance thereof for all parties concerned. The incomplete draft already runs to more than 200 pages.

“The first and the second respondents will endeavour to have their answering affidavits finalised in terms of the provisions of the notice … by Tuesday, 31 May 2016.”

Safcei spokesperson Liz McDaid said on Monday that “it is not unexpected that government once again fails to meet their own deadlines”.

“But what is of concern is that government lawyers are even not committing to the legal rule 30a notice deadline, but only going to ‘endeavour’ to meet it.

“If the country is to function as a democratic state under the rule of law, then the state must respect the rules and commit to following the timeframes, which are set out under the law,” she said.

In October last year, Earthlife Africa JHB and Safcei filed court papers challenging the constitutionality of the intergovernmental framework agreements the DoE signed with Russia, China, South Korea and the USA on the country's planned nuclear development.

Safcei said it waited for Joemat-Pettersson to provide the records of the decisions that are being challenged. “In that period, Safcei and Earthlife Africa generously allowed the government extensions, which eventually meant that government only provided the requisite documents on February 16 2016.”

Legal documents indicate that South Africa did sign a nuclear deal with Russia, claim the environmentalists in their affidavit.

Here, they said “the Russian agreement was entered into unlawfully, but makes (an) internationally binding commitment to buy a fleet of nuclear reactors from Russia”.

From the state law adviser’s explanatory memorandum that was prepared in November 2013 but only revealed recently to Safcei/ELA, “it is evident that the Russian agreement is to build reactors and an enrichment plant", the group said.

They said other subsequent agreements would “cover the details of how it is to be financed, not if it would go ahead”.

The court case appears to be stalling the country’s bid to launch its request for proposals for the 9.6GW nuclear procurement programme. This was supposed to occur on April 1.

This article first appeared on Fin24, see here.