Legal documents indicate that South Africa did sign a nuclear deal with Russia, environmentalists who have taken the government to court alleged on Wednesday.
In its legal proceedings against the department of energy, Earthlife Africa and the Southern African Faith Communities’ Environment Institute (Safcei) said they received documentation indicating that a binding deal had been signed.
They said “the Russian agreement was entered into unlawfully, but makes [an] internationally binding commitment to buy a fleet of nuclear reactors from Russia”.
From the state law adviser’s explanatory memorandum that was prepared in November 2013 but only revealed recently to Safcei/Earthlife Africa, “it is evident that the Russian agreement is to build reactors and an enrichment plant”, the group said.
They said other subsequent agreements would “cover the details of how it is to be financed, not if it would go ahead”.
The allegations will be tested in court to determine whether the intergovernmental agreement South Africa signed with Russia in 2014 is binding, and whether it is legally bound to use only Russian nuclear reactors in the procurement process.
If this is found to be true, South Africa did in fact sign a nuclear deal with Russia. If not, the procurement process that is currently unfolding may result in a formal deal, but would allow the process to be shelved with no repercussions.
Russian nuclear firm Rosatom said in 2015 that its press release in 2014 incorrectly alluded to a done deal, but said this was far from the truth.
“We cannot hook up with a politician and make a deal [that will span] generations,” Viktor Polikarpov, Rosatom’s head of sub-Saharan Africa operations, said in February.
Energy minister Tina Joemat-Pettersson also denied the deal. “We are committed to transparency,” she said in 2015. “We are not going to compromise our country in any way.”
In the 2014 Rosatom press release, Joemat-Pettersson is quoted as saying: “This agreement opens up the door for South Africa to access Russian technologies, funding, infrastructure, and provides [a] proper and solid platform for future extensive collaboration.”
“The Russian agreement would obviously have significant economic and other implications for the country and, therefore required parliamentary approval,” said Safcei/Earthlife Africa.
According to records provided to Safcei/Earthlife Africa, the state law adviser advised that the agreement required parliamentary approval. This meant it should have been tabled under section 231.2 of the constitution, Safcei/ELA said.
“The minister tabled it in parliament in terms of section 231.3, thereby sidestepping the public participation that would have been required during the process of parliamentary approval,” they said. “There is no explanation of why the minister chose to ignore the state legal adviser’s advice.”
“Major warning lights should be flashing,” said Safcei’s Liz McDaid. “The implications of the manner in which the minister tabled the agreement, against the advice of her own legal advisers, is that it locked South Africa into a 20-year deal with Russia, without any public debate over whether the country can actually afford it or not.
“Such a consultation process, including public hearings, could have taken place had the Russian IGA been tabled as required by section 231.2 of the constitution, where parliamentary approval is required.”
Democratic Alliance MP Gordon Mackay said he tabled this concern in a portfolio committee on energy meeting in parliament last year.
“The chairman allowed a response from the department of energy and parliament and then ruled that he was happy that the IGAs were being submitted correctly,” he said on Wednesday via email.
“It was this decision by the chair on the basis of parliament’s law advisers that provided the grounds for Earthlife’s court application,” he said.
Safcei/Earthlife Africa said they are in the process of filing and serving a supplementary founding affidavit in their court challenge against the government’s proposed nuclear deal.
Rosatom, the department of energy and energy regulator Nersa have been contacted for comment regarding the allegations but had not responded at the time of publication.