Minister Ramokgopa, citing legal challenges, hits brakes on nuclear plans – for now

In a shock move on Friday, the Minister of Energy and Electricity, Kgosientsho Ramokgopa, announced that he would be withdrawing the gazette to procure new nuclear power capacity – for now. He added that despite this decision, “nuclear is the future” and that it would be back on the table at a later stage. 

He said this was in response to the “substantive” legal challenges posed by the Southern African Faith Communities’ Environment Institute and Earthlife Africa Johannesburg. 

Daily Maverick previously reported that at the end of 2023, the minister announced that all the “suspensive conditions” to start procuring 2,500MW of new nuclear power immediately had been met. 

Ramokgopa explained at the time that “Department of Mineral Resources and Energy submitted the report to the regulator addressing these suspensive conditions in July of 2023. Of course, Nersa (National Energy Regulator of South Africa) still had an obligation to satisfy itself if the response from the department to the suspensive conditions are sufficient for Nersa to consider giving this process the green light. And I am happy to indicate that on 30 August 2023, Nersa considered the department’s submission and concluded that the suspensive conditions had been satisfactorily addressed.

“Essentially what Nersa then said was that ‘we are giving you the go-ahead to proceed’. So, to give a legal effect to the ministerial determination for the procurement of new nuclear capacity of August 2020, the determination and Nersa’s concurrence will be gazetted. So now we’re starting the process of gazetting. So what we are triggering now, is essentially a procurement process,” he said at the time.

Read more: Questions raised after Ramokgopa starts procurement process for 2,500MW of nuclear power

In response to this development, the Southern African Faith Communities’ Environment Institute and Earthlife Africa Johannesburg filed an application with the High Court, to stop the nuclear energy procurement plans, “to ensure procedurally fair processes”. In a statement, the civil society organisations explained that Ramokgopa’s Section 34 determination to procure 2,500 MW of new nuclear energy capacity was “unlawful and unconstitutional because the process has, thus far, been procedurally unfair”.

They write that they submitted detailed representations to Nersa during the public consultation process, “raising critical issues that are supported by an expert report. This includes the huge, anticipated cost of the nuclear build programme, estimated at R330-billion.” 

“The Department of Minerals and Energy eventually submitted a report in purported satisfaction of the suspensive conditions in July 2023, which Nersa accepted. However, despite its conditional concurrence, Nersa has subsequently refused to provide the organisations (and the public) with information about its concurrence or an opportunity to make further representations when the minister of energy apparently had met the suspensive conditions.

“Nersa’s failure to make the Department of Minerals and Energy’s report available to the public for further comment, was procedurally unfair. Furthermore, we believe the issue was muddied further when the minister of electricity published the minister of energy’s 2020 determination because, previously, in March 2023, the power to make such determinations was transferred from the minister of energy to the minister of electricity. In our opinion, then, no determination has been made that new nuclear generation capacity was needed, as required by the empowering legislation. The evidence submitted by the Department of Minerals and Energy that National Energy Regulator of SA has purported satisfied the suspensive conditions,” said the Southern African Faith Communities’ Environment Institute’s Francesca de Gasparis. 

Read more: Ramokgopa commits to transparent procurement process for new nuclear build plans

Speaking at a media briefing on Friday morning, the minister agreed with the organisations. 

“I think that it is proper that we are able to extend an opportunity to these parties and other parties to evaluate, examine, critique, respond to our report in relation to how we're going to meet the suspensive conditions.

“So in summary, I’m saying as a minister, I agree with these applicants. I agree with Earthlife Africa. I agree with the Southern African Faith Communities’ Environment Institute that Nersa should have subjected that process to a public participation process. The last thing we want is to do a major build programme on the back of suspicion that the department and government is hiding something from the public,” said Ram0kgopa.

“And on the basis of that, I then directed that it is important that we accede to that request, essentially saying to council, we are agreeing on what Earthlife Africa is saying and the other party that this process must be subjected to an additional public participation process. So on the back of that, I then take the decision, and this is the announcement I’m making to the country, that I’m withdrawing the Gazette. I’m withdrawing the Gazette to allow for that public participation to happen,” he announced.  

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