'Justice is served', say applicants in nuclear court bid

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Cape Town – A court ruling declaring government’s actions to secure a nuclear build plan for South Africa unlawful, occurred on the very same day a nuclear disaster happened in Chernobyl, Russia, said Makoma Lekalakala of Earthlife Africa Johannesburg. 

“The timing of the judgment, before this important day in South Africa’s history and on the day of the nuclear disaster in Russia, adds to the sense of justice being done,” she said in a statement.

Earthlife and the South African Faith Communities Environment Institute (Safcei) launched a joint court bid in October 2015 to stop government from procuring nuclear energy. 

READ: Nuclear battle not over yet - OUTA

Judge Lee Bozalek on Wednesday ruled in favour of the two organisations' court bid, declaring government’s attempts to secure 9.6 GW of nuclear energy unlawful, including the initial determination to procure nuclear energy in 2013, the cooperation agreements signed with Russia, the US and South Korea, as well as former energy minister Tina Joemat-Pettersson’s decision to hand over the procurement of nuclear energy to Eskom late last year.

“[The ruling was a] victory for justice and the rule of law and the people of South Africa,” said Makoma Lekalakala of Earthlife. 

“After over a year and a half of court preparation for justice, Earthlife and Safcei were finally able to block the unlawful and unconstitutional actions of the South African government in its nuclear deal,” she added. 

READ: FULL JUDGMENT: Nuclear process declared unlawful 

Safcei spokesperson Liziwe McDaid said the two organisations experienced considerable “delays and dirty tricks along the road to the courts”. 

“But we persevered and now we have been vindicated,” she said. 

SAFCEI and Earthlife based their case on the South African Constitution, McDaid said, which states that when it comes to far-reaching decisions, such as the nuclear deal, which would alter the future of our country, government is legally required to debate in Parliament and do a thorough, transparent and meaningful public consultation.

Public participation to underpin energy policy

According to Adrian Pole, legal representative for Earthlife and Safcei, the judgment means that there is no decision in terms of the relevant empowering statute that new nuclear generation capacity is needed and should be procured in South Africa. 

READ: Energy minister to cough up for nuclear court costs 

“The Russian agreement has been declared unlawful and unconstitutional for its tabling. Before any nuclear procurement can proceed, the Minster of Energy in concurrence with the National Energy Regulator of South Africa (NERSA) will be required to make a new determination in accordance with a lawful process that is transparent and includes public participation. 

“This will necessarily require disclosure of relevant information that to date has been kept from the public, including critical information on costs and affordability,” Pole said. 

Project 90 by 2030 – an environmental non-profit organisation – called the court ruling a “victory for democracy”. 

“Both Safcei and Earthlife are small organisations, with a handful of people working tirelessly over the last few years on this issue,” said researcher Richard Halsey. “Despite all the high level issues of state capture and patronage politics, the courts are still standing up for due process and the need to have energy planning done in a transparent and consultative manner.” 

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