In October 2015, Earthlife Africa and the Southern African Faith Communities’ Environment Institute (SAFCEI) filed an application in the Western Cape High Court against a number of government officials, including the Minister of Energy and the President.

The application challenges the constitutionality of government actions in relation to the establishment of a nuclear power industry in South Africa at an estimated cost of one trillion Rand (according to the Applicant’s court papers).

What are Earthlife and SAFCEI Challenging?

The application and its basis is a complex one, partly due to the fact that the Applicants filed additional affidavits after receiving documents from the Government.

At it’s core, the application seeks to invalidate the determination regarding nuclear power made by the Minister and NERSA under the Electricity Regulation Act, 2006 as well as three Inter-Governmental Agreements (IGAs) South Africa entered into with the USA, the Republic of Korea and Russia. All three of the challenged agreements were tabled in Parliament in June 2015 in terms of section 231(3) of the Constitution.

Challenging the Determination

In December 2015, the Minister of energy promulgated a determination, in terms of section 34 of the ERA that South Africa develop new energy generation capacity of 9600MW using nuclear power. The determination also specifies that Eskom will purchase the electricity and the procurement process will be fair, equitable, transparent, competitive and cost-effective. On the face of it, the only aspect of the determination that doesn’t align with the requirements of ERA is that it does not explicitly make provision for private sector participation in the process. This could be grounds to invalidate the determination but this is not what the Applicants have argued.

Instead, the Applicants are applying for a review of the determination on the grounds that it is unlawful and unconstitutional. Their challenge is based on the fact that the public was not afforded an opportunity to participate in the decision making process. However, the ERA doesn’t require public participation in order for a determination to be made, arguably because there is not constitutional requirement for public participation in policy decisions.

However, the Applicants are contending that the determination constitutes ‘administrative action’ and consequently requires procedural fairness including public participation and engagement with individuals whose rights are affected by the decision. The government has countered by arguing that making a determination is a policy decision. The distinction is key since administrative action is subject to greater judicial oversight than policy decisions or ‘executive action’.

It will now be up to a court to decide whether a decision, determining how much additional electricity is needed and what sources should be used to generate this electricity is a policy decision or administrative action which should be subject to more rigorous oversight and review. However, even if the determination is not administrative action, it can still be challenged for failing to meet the requirements of ERA by not making explicit provision for participation of the private sector.

What was wrong with the USA and South Korea IGAs?

Section 231 of the Constitution outlines two procedures, which can be used to bind South Africa to an international agreement. One requires that Parliament approve the agreement by resolution before it is binding on South Africa. The other, reserved for technical, administrative, executive or self-executing international agreements provides that agreements will be binding upon signature. However the Minister is still required to table the agreement in Parliament within a reasonable amount of time. 

The Constitution does not prescribe a time period for tabling, but instead only requires that the agreements be tabled within a reasonable amount of time. According to the Office of the Chief State Law Advisor, agreements should be tabled within one year of signature. The Korean and USA IGAs were not tabled within a year of signature.

According to Earthlife’s papers, the Korean IGA was signed in 2010 and the USA IGA was signed in 1995 (it was actually signed on 14 September 2009)  but both were only tabled in June 2015, a number of years after being signed. Applicants are arguing that the Minister’s delay in tabling the IGAs at parliament was unconstitutional and are seeking that the Minister’s decision to table them be set aside.

While the argument is valid, it is not clear why the applicant’s are seeking this relief since the agreements will still be binding on South Africa, even if the Minister’s decision is set aside. This means there is a little practical impact in declaring the tabling unconstitutional. 

Why is the Russia IGA different?

The Applicants are also challenging an intergovernmental agreement between South Africa and Russia called “the Strategic Partnership on Nuclear Power and Industry” but on different grounds. The Applicants argue that the Russian IGA was tabled in terms of the wrong section of the Constitution and as a consequence, unconstitutionally evaded Parliamentary Debate. The second is that the decision to sign the Russia IGA was unlawful and unconstitutional because the IGA is actually a part of the nuclear energy procurement process.

1) The Tabling of the Russia IGA under section 231(3)

The Applicants are challenging the Minister’s decision to table the Russia IGA under section 231(3) and avoid the agreement being subjected to parliamentary debate before becoming enforceable. The procedures for tabling international agreements in Parliament are outlined in the Guide to Tabling Papers in Parliament and provides the protocol Ministers must follow when tabling international agreements.

According to the Guide, a Minister must obtain an opinion from the State Law Advisers on which process to follow when tabling an international agreement. This opinion decides whether the agreement should be subject to parliamentary debate. In the case of the Russia IGA, the opinion was in an Explanatory Memo that was presented when the Russia IGA was tabled in Parliament.

The supplementary affidavit filed by the Applicants contains the Explanatory Memo  which accompanied the Russia IGA. According to the Explanatory Memo, the agreement was supposed to be approved by a resolution of parliament but this did not happen.

This means the Minister failed to follow Parliamentary procedure and the opinion of the State Law Advisor. It also means that the constitutional requirements to bring the agreement into force haven’t been met and, consequently, the agreement is not yet binding under South African law. In this case, Parliament should have challenged the Minister’s failure to comply with Parliamentary procedure. Since Parliament did not do this, it is possible that the Applicants will succeed in their review of the decision.

2) The Russia IGA is a Procurement Step

According to the minutes of a parliamentary committee meeting, the agreement was supposed to relate to Russia assisting in the design, construction, operation and decommissioning of nuclear units which is the same mandate for the rest of the IGAs (including the USA and Korean IGAs). However, one of the queries raised during this meeting was why the terms of the Russian Agreement were different to the other IGAs.

The text of the IGAs for Korea, China, France and the USA are significantly different to the terms of the Russia IGA. The justification provided was that the differences were a result of negotiations, but substantively the Russia IGA is more akin to an umbrella contract for a specific nuclear project than an agreement to co-operate.

In fact, the Russia IGA applies specifically to the “implementation of priority joint projects of construction of two new NPP units with VVER reactors with the total capacity of up to 2,4 GW at the site selected by the South African Party (either Koeberg NPP, Thyspunt or Bantamsklip) in the Republic of South Africa and other NPP units of total capacity up to 7,2GW at other identified sites in the Republic of South Africa and construction of a multi-purpose research reactor at the research center located at Pelindaba, Republic of South Africa.”

The Applicant’s have argued that detailed nature of the Russia IGA as well as the fact that the IGA requires South Africa to procure certain services and elements from Russia makes it a pre-procurement step that was taken without an open and transparent procurement process. The Applicants highlight the fact that the Russia IGA not only violated the Government’s obligations to undertake a transparent and fair procurement process but also created a perception of bias in favour of Russia. If the is found to be a procurement step, the government’s decision to enter into the Russia IGA would be unconstitutional.

Is the application likely to succeed?

The application is a flawed one, at least in part because the Applicants did not have access to all the documents they would need. Moreover, the Applicants approached this case with an agenda to challenge the government’s decision to invest in nuclear power. The Applicants also relied on the lack of transparency as a basis to invalidate government action in and of itself. While the so-called ‘secrecy’ is a strong argument in the court of public opinion, it is relatively meaningless in a court of law.

With this case, there are the also state capture questions which arise when one realises the Guptas purchased a uranium mine before the Nuclear determination was promulgated and potentially played a role in creating a demand for uranium. All in all, this case was a complicated one. Too complicated for an NGO to argue and probably too expensive since the Applicants have already spent over R1 million on litigation and are in the process of fundraising a further R500 000.

A secretive executive which is not transparent about its decision-making processes is problematic. An executive, which seems to have worryingly close relationships with certain people outside of government is also problematic.

However, the most problematic thing is that the application was made by an NGO to the judiciary. This application is really an attempt to challenge the Government’s policy decision to pursue nuclear power over other alternative energy sources and, irrespective of whether this policy decision was motivated by corrupt or valid reasons, the courts have very little power to question policy decisions.

Our Constitution embodies the doctrine of separation of powers, which divides our government into three branches, the Executive, Parliament and the Judiciary. Power is divided between the branches and each branch is required to hold the others accountable through different mechanisms. The Judiciary is afforded the powers of review by these powers are more restricted than Parliament’s or the Executive’s because the judiciary are not democratically elected to power.

As a result of this doctrine, Parliament was given better powers to hold the Executive accountable by interrogating the Executive’s decision on the Nuclear Deal. However, the Parliamentary mechanisms for holding the accountable – such as the committee meetings discussing the IGAs and the explanatory memo – did not result in any meaningful measure of Executive accountability. Parliament also did not question the Executive as to the reason for the delays tabling the IGAs even though the delay was violated Parliamentary Procedures.

Though the Constitution doesn’t provide a meaningful way for the judiciary to review policy decisions, it give Parliament the power to hold the Executive accountable. Since Parliament has not been fulfilling this mandate, perhaps the correct step is to use the judiciary to hold Parliament accountable.

However, for the time being – the issues, as framed by the Applicants – will be decided by the courts. The case has been postponed to February 2017.

An abridged version of this article was first published on Ground Up.

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