South Africa’s High Court rules key nuclear decisions unconstitutional

The South African government suffered a major setback in its efforts to procure nuclear power when the High Court in Cape Town ruled on 26 April that three intergovernmental agreements, two ministerial determinations and all subsequent procurement activity was unlawful and unconstitutional. The decision means that two ministerial determinations – announcements by the energy minister that a certain amount of capacity will be procured from a particular technology – from 2013 and 2016 underpinning the government’s ambitious, and controversial, efforts to procure 9,600MW of nuclear power have been set aside. As a consequence, the request for information which was scheduled to close at the end of April was also ruled unlawful (AE 338/8, 305/6). The role assumed by the National Energy Regulator of South Africa (Nersa) was again challenged, striking, for the second time since early 2016, at the uncomfortable balancing act the regulator has attempted since it was established in 2004 between political considerations and quasi-independence.