Court castigates Gwede Mantashe on axing of anti-nuclear activist, denies leave to appeal

28 May 2023

The Western Cape High Court has dismissed the applications of Minister Gwede Mantashe and the National Nuclear Regulator for leave to appeal against its ruling that the axing of anti-nuclear activist Peter Becker from the National Nuclear Regulator board was unconstitutional.

The Western Cape High Court has refused applications by Mineral Resources and Energy Minister Gwede Mantashe and the National Nuclear Regulator (NNR) for leave to appeal against the same court’s decision on the sacking of anti-nuclear activist Peter Becker.

The applications were for leave to appeal against Western Cape High Court Judge Babalwa Mantame’s scathing judgment on 19 January which found Mantashe’s decision to discharge Becker from the NNR board was “unlawful, unconstitutional and invalid”.

Read more in Daily Maverick: Gwede Mantashe axing of nuclear watchdog activist Peter Becker was unconstitutional, rules court

On Friday, 26 May, Judge Mantame ruled that Mantashe and the NNR, in their respective applications, had failed to convince the court that there was any reasonable prospect of success in an appeal and that there were compelling reasons why an appeal should be heard.

They were ordered to pay the costs of the application.

“The test applied in an application for leave to appeal amongst others, suggests that there must be a sound and rational basis for the conclusion that there are prospects of success on appeal.

“The respondents have not taken this Court into its confidence and identified the compelling reasons why this matter should be heard by an appeal court, other than to give this Court’s judgment their own meaning. The fact that they preferred their own interpretation to the comments and findings of the Court could not be said to be a justifiable reason/s for the matter to be heard by an appeal court,” concluded Judge Mantame.

A thorough dressing-down

Both respondents received a thorough dressing-down from the judge, who criticised their apparent decision on reading her initial judgment “selectively. The respondents cannot substitute the Court’s analysis with their own convenient censure,” she said.

The judgment coincided with President Cyril Ramaphosa’s move to finally bestow his new minister of electricity, Kgosientsho Ramokgopa, with real power — transferring responsibility for procuring new electricity generation to Ramokgopa from Mantashe. At first glance, the loss of such procurement powers appears to be a blow to Mantashe. But Ramokgopa’s new responsibilities are not quite what they seem, as Daily Maverick’s Marianne Merten writes.

Becker, the spokesperson of the Koeberg Alert Alliance (KAA) — a civil society organisation opposed to the further building of reactors at Koeberg Power Station and extending its lifespan — was appointed to the NNR board in June 2021, to represent communities affected by nuclear activities.

In February 2022, he was fired by Mantashe, who alleged Becker was guilty of “misconduct” and was “conflicted”, after he gave an interview in his capacity as KAA spokesperson, in which he raised concerns about the use of nuclear power in South Africa, and after he convened a meeting with civil society organisations.

Becker’s initial suspension from the board in January 2022 was on the same day that the steam generators in unit two were approved for replacement, which is one of the steps required before any life extension could be granted. Members of civil society have since questioned the timing of his suspension. Becker launched a court bid to challenge his axing last year. In his first court application, he argued that Mantashe had an ulterior motive to get rid of him because of the challenging questions he may have raised.

Read more in Daily Maverick: The Bull in a china shop – Gwede Mantashe

In her judgment on 19 January, Judge Mantame concluded that Becker’s public statements, his requests for information and the meeting with members of his constituency could not be construed as misconduct. Additionally, even if there was a perception of conflict of interest, it was capable of being mitigated.

In Friday’s judgment, Judge Mantame reiterated: “Similarly, in this matter, in light of the finding that there was no evidence of misconduct on the part of the applicant, it then follows that there is no rational or sound basis for his discharge. In the circumstances, the conclusion that there are prospects of success on appeal or that there are compelling reasons for the appeal to be heard is without merit.”

This raises the question of what the minister’s motivation had been to axe Becker. The reasons and decision of Mantashe to discharge Becker from his office as a director of the board, Judge Mantame ordered in January, were reviewed and set aside. However, Becker is currently in limbo and is excluded from the NNR board and board processes.

The Western Cape High Court’s refusal to grant leave to appeal to Mantashe and the NNR doesn’t mean it’s the end of the road, as they can still petition the Supreme Court of Appeal directly for leave to appeal.

Daily Maverick contacted the Department of Mineral Resources and Energy’s ministerial liaison officer, Natie Shabangu, for comment, but had not received a response by the time of publication.

Daily Maverick also contacted NNR spokesperson Gino Moonsamy for comment. Moonsamy said: “It was too short notice for a response from the NNR. You are welcome to contact me within the week.” DM

Categories:

Tags:

DM is much better if you are signed in...

South Africa

A thorough dressing-down