Unpopular: Security restrains a Greenpeace member protesting against the proposed nuclear build.
The Western Cape High Court has set aside nuclear agreements signed by government with vendor countries, declaring them unlawful and unconstitutional. These deals were with Russia, the United States and South Korea.
The judgment comes after Earthlife Africa and the South African Faith Communities’ Environment Institute approached the court in October 2015, challenging government’s decision to buy up to 9 600MW of nuclear energy.
They argued that the minister of energy, then Tina Joemat-Pettersson, had signed the agreements without a debate in Parliament. This was based on her department’s interpretation of Section 231 of the Constitution, which outlines two procedures by which South Africa becomes bound to an international agreement.
The first is more onerous, and requires that Parliament must approve any agreement. The second, used for “technical, administrative or executive” agreements, just asks that agreements be tabled before Parliament “within a reasonable time”. In practice, and according to the Office of the Chief State Law Adviser, that time is one year.
The South Korean agreement was signed in 2010, and the US one in 2009. But both were tabled only in June 2015.
For the Russian agreement – the Strategic Partnership on Nuclear Power and Industry – the state argued that it did not need to be debated in Parliament because it had the legal standing of an international agreement. But in their court papers, Earthlife and the faith institute included a memo from the state law adviser, which said the agreement needed approval by a resolution of Parliament. The memo was presented in Parliament when the agreement was tabled.
In its ruling, the high court sided with the applicants and set aside all three agreements.
Follow the Mail & Guardian for more updates on this developing story.