Presidents Jacob Zuma and Vladimir Putin. Picture: REUTERS
Presidents Jacob Zuma and Vladimir Putin. Picture: REUTERS

A Western Cape High Court judge has rejected government claims that the far-reaching nuclear agreement between SA and Russia was simply a a bilateral international framework agreement for nuclear cooperation, concluding instead that it laid the basis for a "binding, exclusive agreement in relation to the procurement of new reactor plants".

The bombshell judgment by Judge Lee Bozalek with Judge Elizabeth Baartman concurring sheds light on the ongoing controversy over whether or not SA and Russia have concluded a nuclear procurement deal.

Speculation has been rife for several years that SA had concluded a secret nuclear procurement deal with Russia which would have made its energy giant Rosatom the lead provider of a fleet of nuclear plants to generate an envisaged 9600MW of energy.

Former energy minister Tina Joemat-Pettersson tried repeatedly to squash this speculation, emphasising that no nuclear deal had been signed with Russia and saying that it was only a bilateral international framework agreement for nuclear cooperation.

The Department of Energy again stressed in a statement on Wednesday that the government "has not entered into any deal or signed any contract for the procurement of nuclear power". Inter-governmental agreements had, however, been signed with the US, South Korea, China, Russia, and France.

There has also been widespread speculation that President Jacob Zuma has made nuclear procurement commitments to the Russians and that it was his eagerness to make good on these promises that he replaced Joemat-Pettersson with Mmamoloko Kubayi. Kubayi said on Wednesday she had directed her department to study the judgment and would engage with relevant parties including Parliament on the matter.

Judge Bozalek declared the nuclear cooperation agreements with Russia, US and South Korea invalid and unconstitutional because they had not been properly approved by both houses of Parliament. They also declared the determinations under the Electricity Regulation Act which lay the basis for Eskom’s nuclear buil programme to be unlawful.

The judgement means that any preferential status that Russia established with SA for the roll out of a fleet of nuclear plants has been blown out of the water. It was handed down in the case brought by environmental group Earthlife Africa and the South African Faith Communities’ Environment Institute (Safcei). The two NGOs argued that the agreement with Russia contained far-reaching and binding commitments in relation to nuclear procurement which were not present in the other inter-governmental agreements reached with the US and South Korea. The judge agreed.

The judge remarked that the agreement with Russia suggested that "a firm legal commitment by the contracting parties to the strategic partnership" had been made.

"In my view seen as a whole the Russian intergovernmental agreement stands well outside the category of a broad nuclear cooperation agreement and at the very least sets the parties well on their way to a binding, exclusive agreement in relation to the procurement of new reactor plants from that particular country," the judge said.

The preamble to the agreement refers to a "strategic partnership" in the field of nuclear power whereas this was not the case in other nuclear cooperation agreements. The agreement states that the design, construction, operation and decommissioning of the nuclear new build programme will be based on the VVER technology which the judge noted was unique to Russia.

Judge Bozalek highlighted one of the articles of the agreement - noteworthy for its specificity - which provided for collaboration in the construction of two nuclear power plants with VVER reactors with a total capacity of up to 2.4GW at either Koeberg, Thyspunt or Bantamsklip and other plants with a total capacity of up to 7.2GW at other sites. The implementation of these projects, the agreement said, "will" be governed by separate agreements and the parties "shall" agree on the details of the projects.

Another article provides for the establishment of a joint coordination committee to oversee the implementation of the agreement which could involve the participation of third countries but only if both SA and Russia agreed to this.

The South African government also undertook to afford Russia a favourable regime for tax and non-tax payments, fees and compensation for the construction of the new nuclear power plants. This commitment is not found in the other agreements. SA also indemnified Russia from any liability for a nuclear incident related to the plants it constructed which the judge said had "potentially far-reaching implications" for the government and its agencies.

The judge declared that the manner in which Joemat-Pettersson had tabled the nuclear cooperation agreements with the US, Russia and South Korea in Parliament was unconstitutional and unlawful, and set aside them aside.

The nature of the agreements, the judge said, meant they had to be tabled in terms of Section 231 (2) of the Constitution which requires the approval of both houses of Parliament and not section 231 (3 as the minister "irrationally" decided to do. Tabling in terms of Section 231 (3) does not require parliamentary endorsement.

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