Section 34 of the Electricity Regulation Act requires that prior to the commencement of any procurement process for nuclear new generation capacity, the Minister of Energy and the National Energy Regulator of South Africa (NERSA) are both required, in accordance with “procedurally fair public participation processes”, to have determined that new generation capacity is required and must be generated from nuclear power.

This means that there has to be public participation involving public input, to allow both interested and potentially affected parties to submit their views and present relevant facts and evidence to NERSA. This must happen before NERSA’s decision on whether to concur in the Minister’s proposed determination. In the spirit of public interest, NERSA is obliged to consider views from the public with either special expertise or a special interest regarding the appropriateness of extra generation capacity through nuclear power.

It has to be stated though, that the Minister of Energy, as a member of the Executive branch of government, enjoys a very wide discretion in how he exercises his power. However, as the Western Cape High Court made clear, any such power has to be exercised rationally in order to withstand the scrutiny of the Courts. 

In the words of the Court,

The conclusion that the process must also be rational in that it must be rationally related to the achievement of the purpose for which the power is conferred, is inescapable and an inevitable consequence of the understanding that rationality review is an evaluation of the relationship between means and ends. The means for achieving the purpose for which the power was conferred must include everything that is done to achieve the purpose. Not only the decision employed to achieve the purpose, but also everything done in the process of taking that decision, constitutes means towards the attainment of the purpose for which the power was conferred”.

Simply put, this means that the decision to pursue further nuclear power has to reflect that the Energy Minister considered all of the relevant facts, including those from interest groups with specialist knowledge, and thereafter made a decision which best encapsulates the best interests of the nation.

Thereafter, the Constitution requires that organs of state, when contracting for goods and services, must do so with due regard to principles of fairness, equitability, transparency, competitiveness and cost-effectiveness. This means that the entities, both foreign and local, wanting to provide South Africa’s nuclear energy will have to be open to rigorous public scrutiny, in line with the Constitution’s demand for transparency.

It would appear that the policy uncertainty, created by the differing stances of the Finance and Energy Ministers, is really the least of concerns in the future of power generation.

Ultimately, the cost of the nuclear energy plan is said to be R1 trillion, an amount which, as the Finance Minister attests, South Africa cannot afford. It stands to reason that should NERSA agree with the Minister of Energy’s plans, the costs of the nuclear programme will negatively affect spending on other social programmes, in the fields of education, social assistance, health services and housing. This, in addition to environmental concerns. It seems the proposed nuclear venture is one that South Africans can ill afford…

Ms Phephelaphi Dube: Director, Centre for Constitutional Rights
6 November 2017