Nuclear Non-Proliferation in International Law - Volume V by Jonathan L. Black-Branch & Dieter Fleck

Author:Jonathan L. Black-Branch & Dieter Fleck
Language: eng
Format: epub
ISBN: 9789462653474
Publisher: T.M.C. Asser Press

10.5 Earthlife Africa Johannesburg and Another v Minister of Energy and Others

The Earthlife case was heard in the Western Cape High Court, with judgment delivered on 26 April 2017.55 The Applicants in this case were Earthlife Africa, along with SAFCEI, and the respondents included the Minister of Energy, the President of the Republic of South Africa, the National Energy Regulator of South Africa, the Speaker of the National Assembly, the Chairperson of the National Council of Provinces and Eskom.56

The application related to actions taken by the government from 2013–2016 regarding an agreement on nuclear cooperation between South Africa and Russia, and the procurement of Russian nuclear reactors. The application challenged certain determinations made by the Minister of Energy in 2013 and 2016 in terms of Section 34 of the National Energy Regulator Act (NERA).57 The application further challenged the constitutionality of the tabling of the Russian IGA in parliament in 2015.58 The Minister and the President were the only respondents that opposed the relief sought by the applicants.59

In 2013, the Minister, with the National Energy Regulator of South Africa (NERSA) concurring with her decision, made a Section 34 determination that 9.6 Gw nuclear power was required, and had to be procured by the Department of Energy.60 The determination was purportedly made on 17 December 2013 and only published in the Government Gazette on 21 December 2015.61 The sudden action to publish the determination, after it had been delayed for so long, was largely because the applicants sought a declaratory order that, prior to any nuclear procurement process, the Minister and NERSA were required to determine that such process formed part of a ‘procedurally fair public participation’ process.62 The Russian IGA was tabled in Parliament on 10 June 2015, and in October 2015, the applicants brought the review application that is discussed in this section.63 On 8 December 2016, the second Section 34 determination was made, which was similar to the first except that it replaced the Department of Energy as procurer with Eskom.64 The legal challenge to the Section 34 determinations, according to the applicants, were that these determinations constituted administrative action, which requires such action to be lawful, reasonable and procedurally fair. To meet these requirements, the action should be preceded by a public consultation or participation process.65 As to the question of what constitutes administrative action, the definition is contained in Section 1 of the Promotion of Administrative Justice Act (PAJA), in part, as:66 …any decision taken, or any failure to take a decision, by - (a) an organ of state, when -

1.(i) exercising a power in terms of the Constitution or a provincial constitution; or

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