Earthlife Africa and Another v Minister of Energy and Others

• Jurisdiction: South Africa
• Judge: Bozalek J and Baartman J
• Judgment Date: 26 April 2017
• Citation: 2017 (5) SA 227 (WCC)
• Docket Number: 19529/2015
• Counsel: D Unterhalter SC (with M du Plessis, A Coutsoudis, S Magardie) for the applicants. MM Oosthuizen SC (with K Warner and RM Molea) for the first and second respondents.
• Court: Western Cape Division, Cape Town

Bozalek J (Baartman J concurring):

[1] This application concerns challenges to various steps taken by the state between 2013 and 2016 in furtherance of its nuclear power F procurement programme. The steps challenged are two separate determinations made by the Minister of Energy in 2013 and 2016, respectively, in terms of s 34 of the Electricity Regulation Act 4 of 2006 (ERA), while the second main focus of the challenge is the constitutionality of the tabling by the Minister before Parliament of three intergovernmental agreements (IGAs) during 2015. G

The parties

[2] First applicant is Earthlife Africa, Johannesburg, a non-governmental non-profit voluntary association which mobilises civil society around environmental issues. The second applicant is the Southern African H Faith Communities Environmental Institute, a registered public benefit and non-profit organisation which also concerns itself with environmental and socioeconomic injustices.

[3] First respondent is the Minister of Energy (the Minister) who issued the two s 34 determinations in question and tabled the three IGAs relating I to nuclear cooperation with other countries. The President of the Republic of South Africa (the President) is cited as second respondent by reason of his decision in 2014 authorising the Minister's signature of an IGA concluded in 2014 with the Russian Federation. Third respondent is the National Energy Regulator of South Africa (Nersa), a statutory body set up in terms of the National Energy Regulator Act 40 of 2004 (NERA), J

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which A body concurred in the s 34 determinations made by the Minister. The Speaker of the National Assembly and the Chairperson of the National Council of Provinces are the fourth and fifth respondents, cited because of their interest in the question whether the IGAs were properly tabled before their respective houses. During the course of proceedings, B Eskom Holdings (Soc) Ltd (Eskom) was joined as sixth respondent but it, as well as the fourth and fifth respondents, abide by the court's decision. All the relief sought is opposed by the Minister and the President to whom I shall refer as 'the respondents'.

Background

[4] C In late 2013, the Minister (with Nersa's concurrence), acting in terms of s 34 of ERA, determined that South Africa required 9,6 GW (gigawatts) of nuclear power and that this should be procured by the Department of Energy. The Minister purported to make the determination on or about 17 December 2013. It was, however, only gazetted on D 21 December 2015 and delivered to the applicants as part of the record in this matter on or about 23 December 2015. The gazetting and production of this s 34 determination was at least partly in response to the applicants' initial case in which, inter alia, a declarator was sought that, prior to the commencement of any procurement process for nuclear E new generation capacity, the Minister and Nersa were both required in accordance with 'procedurally fair public participation processes' to have determined that new generation capacity was required and must be generated from nuclear power in terms of s 34(1)(a) and (b) of ERA.

[5] The applicants commenced their review application in October 2015. Prior thereto, on or about 10 June 2015, the Minister had tabled F the three IGAs before Parliament which are the subject of the present constitutional challenge. In chronological order these were agreements between the Government of the Republic of South Africa and the United States of America, concluded in August 1995, the Government of the Republic of Korea, concluded in October 2010, and the Government of G the Russian Federation, concluded in September 2014, all in regard to cooperation in the field of nuclear energy.

[6] On or about 8 December 2016, during these proceedings, the Minister issued a second s 34 determination along similar lines to the previous s 34 determination, but now identifying Eskom as the procurer H of the nuclear power plants. The determination was made public at the commencement of the initial hearing in this matter on 13 December 2016, occasioning its postponement for several months, and was gazetted on 14 December 2016.

Evolution of the litigation

[7] I The applicants' case has evolved through three stages. The relief initially sought was a review and setting-aside of the Minister's decision to sign the Russian IGA, the President's decision authorising the Minister's signature, and the Minister's decision to table the Russian IGA before Parliament in terms of s 231(3) of the Constitution. Certain J declaratory relief was also sought in relation to how the nuclear

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procurement process should unfold in relation to the issuing of A determinations under s 34(1) of ERA and s 217 of the Constitution which deals with the requirements for a fair procurement system for organs of state.

[8] After the respondents furnished the first s 34 determination as part of the record, the applicants filed an amended notice of motion seeking the review and setting-aside of that determination and any 'Request for B Proposals' issued by the Department of Energy pursuant thereto.

[9] Finally, after postponement of the proceedings in December 2016, the Minister filed a supplementary affidavit explaining the circumstances surrounding, and the rationale for, the second s 34 determination. The applicants were afforded an opportunity to file answering affidavits C to which they attached a draft order indicating that further relief being sought was the review and setting-aside of the Minister's s 34(1) determination gazetted on 14 December 2016, and the setting-aside of any requests for proposals or requests for information issued pursuant to either determination. D

[10] The hearing resumed on 22 February 2017 when the matter was fully argued.

Outline of the parties' cases

[11] In broad terms the applicants' challenge to the three IGAs is largely E procedural in nature and based on the different procedures set out in s 231(2) and 231(3) of the Constitution to render such agreements binding over the Republic. Section 231(2) provides that an IGA binds the Republic only after it has been approved by resolution in both the National Assembly (the NA) and the National Council of Provinces (the F NCOP) 'unless it is an agreement referred to in subsection (3)'. The latter subsection provides that IGAs of a 'technical, administrative or executive nature' bind the Republic without the approval of the NA or the NCOP 'but must be tabled in the Assembly and the Council within a reasonable time'. The applicants aver that inasmuch as the US IGA was entered into more than two decades before it was tabled in terms of s 231(3), and G nearly five years previously in the case of the Korean IGA, the delay in so tabling them rendered them non-compliant with s 231(3) and therefore non-binding. The Russian IGA was also tabled in terms of s 231(3) but in its case the applicants aver that it was not an international agreement as envisaged in s 231(3) and thus should have been tabled before the two houses in terms of s 231(2) with the result that it would only become H binding after it had been approved by resolution of those houses.

[12] In regard to the challenge to all three IGAs the respondents raise various preliminary points, namely, that there has been a material non-joinder inasmuch as none of the three countries have been joined as I parties to the proceedings. In any event, the respondents contend that all three agreements, being international agreements, are not justiciable by a domestic court. As regards the Russian IGA the respondents contend in the alternative that upon a proper interpretation and construction thereof it is 'an international framework agreement for cooperation between sovereign states' (and not a procurement contract) to cooperate J

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on A an executive level in the field of nuclear energy and nuclear industry; furthermore, the respondents contend, the decision of the Minister to table the Russian IGA in terms of s 231(3) of the Constitution was beyond reproach inasmuch as it falls within the general category of a 'technical, administrative and executive agreement, not requiring ratification B or accession'. It is also contended by the respondents that, in any event, even if the Russian IGA was tabled in Parliament in terms of the incorrect procedure, the applicants have no standing to claim any relief in relation thereto, this being a matter for Parliament to take up with the Minister.

[13] C In regard to the US and Korean IGAs the respondents, for the reasons given above, again assert that the applicants have no standing to claim any relief. They assert further that there was no unreasonable delay in tabling either IGA and that what is reasonable in any particular instance must depend on the facts and circumstances pertaining to each IGA. They contend further that, even if there was an unreasonable delay in the D tablings, it is only the delay itself that is unconstitutional and this does not affect the validity or effectiveness of the tabling themselves nor render the two treaties without any binding effect.

[14] As regards to the s 34 determinations, in broad outline, the applicants' case is that both the Minister's decision as contained in the E determinations and Nersa's concurrence therein constituted administrative action but breached the requirements for such action to be lawful, reasonable and procedurally fair. Amongst the grounds that they rely on in this regard are that neither the Minister's decision nor that of Nersa was preceded by any public participation or consultation on any ground. F Secondly, as regards the first s 34 determination the applicants contend it was unlawful by reason of the two-year delay in gazetting it...