Democratic Alliance Challenges South Africa's Nuclear Energy Procurement in Court

In a significant move with far-reaching implications for South Africa's energy sector, the Democratic Alliance (DA) has taken to the courts to oppose the government's decision to procure 2500 megawatts (MW) of nuclear energy, raising concerns over procedural fairness and adherence to the law.

The case, filed at the Gauteng High Court on March 8, 2024, targets both the Minister of Electricity, Kgosientso Ramokgopa, and the National Energy Regulator of South Africa (NERSA). At the heart of the dispute is a ministerial determination published in the Government Gazette on January 26, 2024, but signed on March 10, 2020, by then-Minister of Mineral Resources and Energy, Gwede Mantashe.

The DA alleges that Mantashe's action is fundamentally flawed, as he was not the correct minister to sign off on the determination. When the decision was finally enacted in early 2024, the responsibility had shifted to Minister Ramokgopa, thus rendering Mantashe's prior decision ostensibly ineffective.

Furthermore, the party claims the published determination lacks NERSA's critical stipulation that the nuclear procurement should proceed via an Engineering, Procurement, and Construction (EPC) contract, which offers a comprehensive agreement structure as opposed to disjointed contracts that could lead to financial and logistical complications.

The procedural delays associated with the nuclear new build are another bone of contention. More than two years lapsed from Mantashe's initial move towards nuclear new build procurement and the eventual concurrence by NERSA. Such a delay, the DA argues, necessitates a new round of public participation and input, drawing a parallel with the Earthlife Africa v Minister of Energy judgement of 2017 which underscored the importance of public commentary in the s34 determination process as mandated by section 10 of the National Energy Regulator Act.

By bringing this lawsuit, the DA aims to ensure that, as South Africa grapples with persistent load shedding and energy supply challenges, any long-term solutions like nuclear new builds are introduced through competitive, transparent, and scrupulously legal procedures. The party stresses that the immediate energy crisis requires prompt and effective actions geared towards strengthening the existing grid and boosting generation capacity swiftly before committing to massive infrastructure projects with hefty price tags and longer timelines.

The Democratic Alliance has positioned itself as a guardian of legal compliance, advocating against improper conduct within the government and among regulatory authorities. This legal challenge also serves as a preemptive strike against potential mismanagement and corruption reminiscent of controversies tied to past projects like the Medupi and Kusile power stations.

As this legal challenge unfolds, the DA's critique of the procurement process underscores a broader national debate on energy policy and the future shape of South Africa's energy mix.