Mahlobo and Eskom will face court action if they fail to keep nuclear pledge

Cape Town – Energy Minister David Mahlobo and Eskom made pledges to the Western Cape High Court on Wednesday that they will adhere to the court ruling regarding its nuclear procurement programme earlier this year.

This means it will be harder for government to push through a nuclear deal – which Treasury has said the country cannot afford currently – without an independent public participation process held by energy regulator Nersa. This process would be required despite the outcome of the Integrated Resource Plan (IRP) and Integrated Energy Plan (IEP) public participation process currently under way.

The urgent application on Wednesday comes as the Department of Energy invited civil society to an Energy Indaba at the Gallagher Convention Centre in Midrand next Thursday and Friday (December 7 to 8).

There is a concern that this indaba is being used to justify this public participation process, but it was made clear on Wednesday that it would not cut legal muster.

Over 20 civil society groups wrote to Mahlobo on Tuesday, raising concerns that the minister will use the indaba to speed up the IRP and IEP process and release it with nuclear as an energy requirement in December. This would then allow him to start the nuclear procurement programme tender process, which critics fear has been rigged in favour of the Russians.

Mahlobo and Eskom's assurance occurred in the Western Cape High Court on Wednesday, which heard an urgent application by Earth Life Africa and the Southern African Faith Communities' Environment Institute (Safcei), who wanted to stop Mahlobo from proceeding with the controversial nuclear energy deal without adhering to an earlier court ruling in April.

Advocate David Unterhalter SC, arguing on behalf of environmental groups Safcei and Earthlife SA, said the public participation process would be required for a Section 34 determination to be issued, as per the court ruling on April 26.

Western Cape High Court Judge Lee Bozalek had ruled that national energy regulator Nersa must follow a procedurally fair public participation process before the minister of energy can exercise his powers under section 34(1) of the Energy Regulation Act.

Loyiso Tyabashe, the acting general manager of Eskom's nuclear new build programme, said in an affidavit the state utility has in no way violated the court’s judgment and would not proceed with the procurement of nuclear unless it is lawfully designated.

Mahlobo followed suit in his affidavit on Wednesday, pledging that the department would not proceed unlawfully.

As such, Unterhalter asked the court to suspend their application pending any violation of the undertakings made by Eskom and Mahlobo.

Safcei executive director Francesca de Gasparis told Fin24 on Wednesday that they would return to court should Mahlobo or Eskom violate their undertaking, which would include applying to Nersa for the Section 34 determination.

“Government must follow a Section 34 determination, a process which Nersa must hold independently of Eskom or the Department of Energy,” she said.

“Nersa must seek independent expert advice and ensure a proper public participation occurs in order to issue a Section 34 determination on our energy needs, only then can the minister proceed with a procurement process.

“The minister is also required to follow the procurement process, and ensure there is sufficient public participation when planning for South Africa’s energy, which has not happened.

“It will be very hard for government to proceed with nuclear without this process,” she said. “We will be ready to return to court, as the case has been adjourned, should they violate this process for nuclear procurement.”

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