NEIL OVERY: Mantashe’s nuclear regulator overreach puts SA at risk

This week a case will be heard in the Western Cape High Court that is likely to have serious implications for nuclear safety in SA. The case relates to a review by a board member of their dismissal from the national nuclear regulator by mineral resources & energy minister Gwede Mantashe for alleged misconduct.

What this case will undoubtedly reveal is that the regulator in its current form is insufficiently independent from government influence for it to be able to properly exercise its mandate to keep the public safe.

The National Nuclear Regulator Act of 1999 seeks to “provide for the protection of people, property and the environment against nuclear damage through the establishment of safety standards and regulatory practices”. It is the regulator ’s job to exercise oversight over all current, and any future, nuclear installations in SA to ensure they are operated safely in the interests of the public.

The International Atomic Energy Agency (IAEA), the UN institution established to promote the “safe, secure and peaceful uses of nuclear science and technology”, has clear guidelines about how institutions such as the national nuclear regulator should be constituted and how they should operate. The IAEA’s Convention of Nuclear Safety (1994) states that steps must be taken “to ensure an effective separation between the functions of the regulatory body and those of any other body or organisation concerned with the promotion or utilisation of nuclear energy”.

The IAEA’s governmental, legal and regulatory framework for safety makes it clear that this separation is necessary to ensure that “entities having responsibilities or interests that could unduly influence its decision-making” are not able to do so.

Yet despite being a member state of the IAEA SA has not ensured that the regulator is free of the influence of entities that use and promote nuclear power, such as the department of mineral resources & energy and its minister. This is because the National Nuclear Regulator Act gives the minister extraordinary powers over the operation of the regulator . He has control over its board, appoints its CEO, approves its regulations, and controls how much money the regulator is allocated.

Vice-like grip

This extensive control exercised over the nuclear safety regulator by the entity responsible for providing and promoting nuclear power in SA has not gone unnoticed by the IAEA. In 2011, during a peer review of SA’s nuclear infrastructure and oversight mechanisms, concerns were raised by the IAEA over the extent of the national nuclear regulator’s independence.

Despite this, the regulator assured the IAEA that it was able to independently undertake its mandate. Unconvinced by this response, in 2013 the IAEA’s integrated nuclear infrastructure review team made the following finding: “Considering that the minister of energy is also in charge of the promotion of nuclear energy, and given that the minister appoints the national nuclear regulator board and CEO, approves the national nuclear regulator’s budget and promulgates regulations, the integrated nuclear infrastructure review team is of the view that the separation between the regulatory functions and the promotional activities is not adequate, thus calling into question the effective independence of the integrated nuclear infrastructure review”.

After this finding the department of mineral resources & energy  spent R500,000 on a report that recommended that the regulator be removed from the department and placed within what was then the department of environmental affairs. Despite this, nothing has since been done to loosen Mantashe’s vice-like grip on the regulator. This grip is illustrated by his actions that have led to the upcoming court case.

In February Mantashe dismissed the national nuclear regulator’s community representative board member, Peter Becker, for alleged misconduct relating to his opposition to nuclear power, an opposition that was, incidentally, well known before he was appointed to the board by the selfsame minister. Mantashe claimed that Becker’s opposition created a conflict of interest that compromised the supposed independence of the regulator.

However, as court papers reveal, there is a glaring inconsistency with this position. The regulator does not exist to give effect to the government’s nuclear policy. Rather, it exists to ensure that government’s nuclear policy is safely implemented. It stands to reason that being opposed to nuclear power does not preclude anyone, including a board member, from being interested in the safety of nuclear power.

If we follow Mantashe’s logic the pronuclear representative from the department who sits on the board should also be dismissed because they also have a conflict of interest that compromises the ability of the national nuclear regulator to act independently.

Deeply ironic

Mantashe’s apparent belief that the regulator exists to give effect to government nuclear policy was revealed in May when he told an ANC conference: “If you resist nuclear and you are a board member, I fire you, simple. You can’t be in a board of something you’re not advocating for.”

He restates this position in his affidavit to the high court, where he states, “if board members used their positions on the board to deliberately frustrate the government’s plans, then they would face discharge”. His affidavit also draws attention to a code of conduct and ethics adopted by the national nuclear regulator board in 2020, which notes that employees must “loyally execute the policies of the government of the day”.

This threat to the ability of the regulator to make important decisions that may contradict government policy but be in the wider critical interests of public safety can only occur because the national nuclear regulator is far from being the independent regulatory body it should be. It is deeply ironic that it is in fact the minister who is the individual deeply conflicted in his relationship with the regulator, not individual board members who do not necessarily agree with government nuclear policy.

The national nuclear regulator should therefore be removed from Mantashe’s grip as a matter of the utmost urgency, and be located within the department of environment, forestry & fisheries (as it is in Germany, for example) or be constituted as an independent agency within government (as in the US).

It is a sobering thought that one of the major findings of the investigation carried out by the Japanese government after the Fukushima nuclear disaster was that regulatory failure contributed significantly to the extent of the disaster because of the regulator’s compromised location in the government department also responsible for promoting nuclear power.

Japan’s nuclear regulator is now within the ministry of the environment. It is high time we did the same in SA — before we pay the price for compromised regulatory oversight. 

• Dr Overy, a freelance researcher, writer and photographer, is a research associate at Environmental Humanities South, University of Cape Town.