Picture: REUTERS
Picture: REUTERS

Eskom has dismissed a claim made in an affidavit that it managed "to usurp the nuclear procurement from the Department of Energy".

Eskom divisional executive of corporate affairs Chose Choeu was commenting Friday on a supplementary affidavit made by Earthlife Africa’s Johannesburg branch co-ordinator, Makoma Lekalakala.

Choue claimed he had been either "grossly misconstrued" or the affidavit was part of "a deliberate story … written to cast Eskom and the nuclear new build in a negative light".

The supplementary affidavit was submitted to the Western Cape High Court in support of the case brought by the anti-nuclear lobby group and the Southern African Faith Communities Environment Institute (Safcei) to have two determinations made by Energy Minister Tina Joemat-Pettersson declared unlawful and unconstitutional.

The 2016 determination designates Eskom as the procurer of 9,600MW from new nuclear energy plants.

In her affidavit Lekalakala refers to a statement made by Department of Energy director-general Thabane Zulu, who said legal advice obtained by Joemat-Pettersson indicated that Eskom’s consent was legally required if the department was to procure the nuclear build on its behalf, which it would have to implement.

In a memorandum sent by Zulu to the minister and included in the court papers, he noted: "It was indicated by an authorised representative from Eskom that Eskom would not provide their consent for the minister and/or Department of Energy to procure on their behalf."

Zulu said this appeared to have been one of the factors that Joemat-Pettersson had considered in her decision to make Eskom the procuring agent when a previous determination under the Electricity Regulation Act had named the department as the procuring agent.

This is confirmed in the minister’s supplementary affidavit, in which she says legal advice obtained in September pertaining to the development of a procurement strategy for the nuclear programme had "resulted in a revisit of the appointment and role of the department as the designated procurement agency in respect of the nuclear programme".

But Choue insisted it was "not within the realm of possibilities for Eskom to grant permission to a policy-maker on the forward-looking (or any) direction".

He said a Business Day article on the affidavit "caricatures Eskom as an all-powerful, over-ambitious, company capable of elbowing the custodian of nuclear policy from its constitutional role. It erroneously claims that Eskom managed to usurp the nuclear procurement from the Department of Energy. Nothing could be further from the truth."

He said: "It defies all shades of logic to suggest that Eskom can successfully rise against our own shareholder representative, which is technically the case owing to the fact that we are state-owned.

"The Department of Energy has the national mandate to decide on the nuclear new build programme; this falls within their purview and cannot be extricated by Eskom, or any entity for that matter. This is a nonnegotiable policy matter and Eskom cannot reasonably, or otherwise, stake a claim thereof."

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