Cape Town – There will most likely be “great unhappiness” in the Russian camp following Tuesday’s court ruling which declared government’s nuclear plans unlawful and unconstitutional, said Gordon Mackay, DA spokesperson of energy.
Judge Lee Bozalek ruled in the Western Cape High Court that former energy minister Tina Joemat-Pettersson's tabling of the nuclear cooperation agreements with the US, Russia and South Korea in Parliament was unconstitutional and unlawful and they were set aside.
Russian state nuclear energy corporation Rosatom, which intended to submit its bid for the nuclear build tender process, could not comment on how the ruling may impact its prospects.
Responding to Fin24 by email, a senior official said
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Mackay said South Africa will not be liable for any costs at this stage, as the agreements entered into with the countries were only to cooperate. “These countries will most probably carry the costs of the Request for Proposal (RFP) and Request for Information (RFI) processes and South Africa is not contractually bound at this stage.
“But we can expect a push back as they’ve been courting the South African government for well over a decade now, especially if one takes into account that the Cabinet reshuffle was to expedite South Africa’s nuclear procurement plan,” Mackay said.
President Jacob Zuma reshuffled his Cabinet on March 31 and among others replaced Joemat-Pettersson with Mmamoloko Kubayi, a presidential loyalist deemed more sympathetic to the nuclear cause.
Fin24 earlier quoted Mackay as saying that Joemat-Pettersson created nuclear hurdles that would help opponents of the programme. He was of the view that the appointment of new Finance Minister Malusi Gigaba and Kubayi at energy was “all about facilitating and accelerating” nuclear energy.
Eskom stopped in its tracks
“The judgment handed down on Wednesday basically puts on hold any work by Eskom with regard to the RFP and RFI,” Mackay said, “and it looks like the judgment will now make all ministerial determinations (with regard to energy procurement and policy) subject to public participation”.
He called the ruling a “wide-ranging judgment”, which will have a significant impact on government’s formulation of energy policy.
“Energy policy will now have to be drafted in a transparent manner and should be subject to a public participation process,” Mackay said.
In addition, the ruling means Eskom has to immediately stop all work with regard to the nuclear procurement programme, Mackay said.
“We believe this will delay any nuclear procurement by at least six to 18 months and, more importantly, the judgment will force future determinations to be backed by proper cost analysis and other forms of analysis that can be used to validate the decision of the energy minister.”
The South African Communist Party welcomed the court's decision, saying in a statement although it supports an energy mix in principle, it is strongly opposed to the subverting of the rule of democratic law and applicable processes. "Such unlawful conduct, the short-circuiting of our democratic procedures, is very dangerous.
"The unnecessary haste that underpinned it, coupled with a display of disregard to affordability, fits in with the mould of corruption and rent-seeking. It appears to have been cast to feed such agendas and clearly comes across as yet another own goal.
"The government must take the message from the judgment to heart. It must follow procedures to the letter, and with due regard to affordability and the interests of the nation, the majority of whom is the working class and poor," the statement read.
The Congress of the People (Cope) also cheered the high court ruling.
“Parliament must be the last to decide on such deals," it said in a statement. "Government wants to spend R1trn of taxpayers' money without consulting the people of this country. Once again, this ruling is a lesson to Mr Jacob Zuma and his cronies that (the) time for backdoor deals is over.”
In addition, Cope calls on the government to not appeal this ruling and “waste more taxpayers’ money”.
Newly-formed trade union federation the South African Federation of Trade Unions (Saftu) also welcomed the court ruling in a statement.
“Saftu sees this nuclear deal as another example of the government subverting democratic processes by not referring to Parliament for endorsement or holding any public debate on an agreement which they had already referred to as a done deal with Russian companies,” it said in a statement.
“This has led to serious allegations that the R1trn deal, the details of which are still secret, involved corruption between the South African and Russian government and business leaders, including the Gupta family.”