26 February 2017, Pretoria — The South African government is under no obligation to get public approval for a nuclear agreement it signed with Russia, the Western Cape High Court heard on Thursday.
State advocate Marius Oosthuizen SC said a court was also not allowed to get involved in a dispute over whether the public is allowed to have a say, as it was about a “nonjusticiable” international agreement.
It did not even need approval from Parliament at the moment, Oosthuizen argued, citing a previous Constitutional Court case which found that it was the members of the executive who are responsible for international matters.
In any event, the Russian nuclear treaty was not a procurement contract, said Oosthuizen – it was a just a statement of intent, which gave Russia veto rights.
“This agreement isn’t an implementation of that plan. It’s an agreement to create an environment, a foundation for implementing that plan,” said Oosthuizen.
But Judge Lee Bozalek said the wording of the agreement appeared to go way beyond an agreement to co-operate, and instead appeared as a statement of intent, which included discussions on special tax arrangements.
Oosthuizen replied that this does not mean they were contracting to build nuclear power plants.
“The ships are not in the harbour, waiting to deliver the cargo. The government, on an executive level, are going to work together to create conditions,” he submitted.
He explained that the veto was nothing more than a measure to respect intellectual property, as SA expresses its desire for a pressured water reactor similar to Koeberg in the Western Cape.
It would only go to Parliament when the plan started to have budgetary implications.
“We are not trying to bypass Parliament,” said Oosthuizen.
The challenge to the validity of the Russian treaty comes after the SA Faith Communities Environment Initiative and EarthLife Africa Johannesburg took the Department of Energy to court for ignoring democratic process over its intention to procure a 9.6GW-producing nuclear power plant.
The applicants believe South Africa cannot afford the R1 trillion price tag.