IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT case no: 20/2016 & 24/2016

SCA case no.: 475/15 SGHC case no.: 35650/ 14

In the matter between:

WESTINGHOUSE ELECTRIC BELGIUM SOCIETE ANONYME - Applicant

and

ESKOM HOLDINGS SOC LTD - First Respondent

AREVA NP INCORPORATED IN FRANCE - Second Respondent

NOTICE OF APPLICATION TO ADMIT FURTHER EVIDENCE

TAKE NOTICE that the applicant ('Westinghouse') hereby makes application to this Honourable Court for orders in the following terms:

1. Admitting the affidavit of FREDERIK PETRUS WOLVAARDT including annexures, filed together with this application, as part of the record of evidence under the above case numbers.

2. Ordering that any party opposing this application is to pay the costs occasioned by such opposition, jointly and severally, the one paying the other to be absolved, with such costs to include the costs of three counsel.

3. Further and/or alternative relief.

TAKE NOTICE FURTHER that the affidavit of FREDERIK PETRUS WOLVAARDT, including annexures, will be used in support of this application.

DATED AT SANDTON ON THIS 5 DAY OF AUGUST 2016.

***

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

In the matter between:

WESTINGHOUSE ELECTRIC BELGIUM SOCIETE ANONYME - Applicant

CCT case no: 20/2016 & 24/2016

SCA case no.: 475/15 SGHC case no.: 35650/14

and

ESKOM HOLDINGS SOC LTD - First Respondent

AREVA NP INCORPORATED IN FRANCE - Second Respondent

AFFIDAVIT IN SUPPORT OF APPLICATION TO ADMIT FURTHER EVIDENCE

I, the undersigned,

FREDERIK PETRUS WOLVAARDT

do hereby make oath and state as follows:

I. I am employed by the applicant ('Westinghouse') as its Customer Accounts Manager.

2. My responsibilities include overseeing the services that Westinghouse renders to the first respondent ('Eskom') at its Koeberg nuclear power plant. I am familiar with the tender at issue in this case, and I have been involved in the litigation following the award of the tender to the second respondent ('Areva').

3. I am duly authorised to bring this application and to depose to this affidavit on behalf of Westinghouse.

4. Save where otherwise stated, or where the context indicates otherwise, the facts set out in this affidavit are within my personal knowledge and are to the best of my belief true and correct.

5. Where I rely on information conveyed to me by others I believe such information to be true and correct. Where I make legal submissions I do so on the advice of Westinghouse's legal representatives.

INTRODUCTION

6. The purpose of this application is to seek this Court's leave to introduce further evidence prior to judgment, in exceptional circumstances which have arisen.

7. As I demonstrate below, the further evidence, which takes the form of a single letter authored and distributed by Eskom, is brief but weighty, highly relevant to the matter, and not open to dispute.

8. It could not have been tendered as evidence earlier given that it was only distributed by Eskom on Tuesday, 2 August 2016 and received by Westinghouse on that day.

THE CONTENTS OF THE LETTER

9. On Tuesday, 2 August 2016 Westinghouse received an e-mail from Eskom enclosing a letter dated 21 July 2016, together with annexures.

10. I attach Eskom's covering email, together with the letter and its annexures, marked "FPW 1".

11. The letter is signed by Mr Bakardien, Eskom's General Manager: Koeberg Power Station, who is responsible for the day-to-day management of Koeberg. The letter and its annexures were distributed to a wide range of Eskom's service providers at Koeberg, including Westinghouse. Westinghouse received this information as it is required for other contracts it has with Eskom for services at Koeberg. The letter and its annexures contain no confidential information.

12. The letter is headed "KOEBERG 10 YEAR PRODUCTION PLAN - REVISION 68".

Its purpose is to explain changes to the latest iteration of the production plan for Koeberg for the planning period until 2025. These changes relate to the scheduling of certain maintenance 'outages'. The production plan itself is illustrated graphically in the annexures to the letter.

13. The following aspects of the letter and its annexures are materially relevant to the present matter:

13.1. First, the letter records that "the Steam Generator Replacement project has not been assigned to any specific Outage", and that "the position is that the SGR will be scheduled into the next available outage once we have clarity on the SG replacement schedule". As a result of this change, the duration of the X23 outage has been reduced from 130 days to 90 days. The letter also explicitly states that steam generator replacement has been removed from X23.

13.2. In other words, the letter confirms that the replacement of the steam generators previously scheduled to take place during the X23 outage in 2018 will now no longer occur then.

13.3. Second, the duration of the X24 outage (due to take place in 2019/2020) has been reduced from 48 days to 35 days and, importantly, "is scheduled to be a 'refi,elling only' outage".

13.4. Thus, the steam generators are not scheduled to be replaced during X24 either.

13.5. Third, the delay in the installation of the replacement steam generators is confirmed by the graphic representations of the production plan for Koeberg contained in the annexures to the letter. (The graphs represent the production plan in calendar years, and in Eskom's financial years). These annexures both contain the annotation that "The SGR project for both units are excluded from this plan".

13.6. This confirms that the installation ofreplacement steam generators is not catered for in the outages envisaged in the scheduled outages.

14. No explanation is given for the changes to the outage schedule. It is, however, clear that on the current schedule the installation of replacement steam generators could only be accommodated in the X25 outages in 2021.

THE RELEVANCE OF THE LETTER TO THIS CASE

15. The letter is directly relevant to the issue of the appropriate relief that should be granted in the event that this Court finds that the tender was unlawfully awarded to Areva.

16. At the hearing of the matter on 18 May 2016, it was argued, on behalf of Eskom, that this Court should decline to set aside or substitute the tender award following a finding of unlawfulness.

17. In heads of argument Eskom contended that an order setting aside the tender "brings about the risk of nuclear safety, as well as security of supply of electricity to consumers", and that it would be "likely to affect the productivity of Koeberg in its contribution to the national grid ".1

18. This argument was premised on the alarmist averments made for the first time in Eskom's affidavit supporting its application for leave to appeal, that the steam generators had to be replaced during a delayed X23 outage during 2018 for reasons of nuclear safety.2 The X23 outage was put up as an immutable deadline that prevented this Court from granting Westinghouse setting-aside or substitution relief.

19. In this regard, Eskom's deponent to its affidavit filed in support of its application for leave to appeal alleged that the steam generators ''are fast approaching the end of their lifespans, and have to be replaced during the X23 outage, to ensure nuclear safety of Koeberg Power Plant".3 Westinghouse argued that these averments were contrived.

20. Eskom's letter now puts matters beyond any doubt: the allegations by Eskom's deponent are conclusively shown to be false.

21. As Westinghouse contended, the true position is that X23 is not an immutable deadline.

The steam generators can be safely installed during later outages, and are likely to be scheduled for installation during the X25 outage in 2020/2021 when Westinghouse has explained it would be in a position to deliver them should it be granted substitution relief.

CONCLUSION

22. In light of the above, I respectfully submit that there are good grounds to admit the letter as further evidence in te1ms of section 22 of the Supreme Court Act 59 of 1959 and/or Rule 31 of this Court's Rules in that:

22.1. it could not have been tendered previously - the letter was only been sent to Westinghouse on 2 August 2016;

22.2. the evidence is weighty and material and it is to be believed;

22.3. it will bring finality to the issue of whether, as Eskom and Areva have contended, the X23 outage is an immutable deadline precluding this Court from granting setting-aside or substitution relief;

22.4. Eskom and Areva can hardly dispute the contents of the letter - it having been authored by a representative of Eskom; and

22.5. there can be no prejudice to Eskom as it can address the simple fact of its truth in answer, if so advised.

23. Westinghouse accordingly seeks relief as set out in the accompanying notice of motion.

FREDERIK PETRUS WOLVAARDT

Footnotes:

1 Eskom's heads of argument, para 112.

2 See in this regard, Volume 15, p 1210-1213, paras 16-20, Eskom's answering affidavit to Westinghouse's cross-appeal; and Volume 14, p 1123, para 74.2, Areva 's affidavit in support of its application for leave to appeal.

3 Volume 12, p 949, para 8.4.1 of Eskom's affidavit in support of its application for leave to appeal.

***

Text of the letter:

"FPW1"

Generation Production Assurance Manager Generation Sustainability

All KOU Staff

Date:

21 July 2016

KOEBERG 10 YEAR PRODUCTION PLAN - REVISION 68

Herewith please find Revision 68 of the Koeberg Production Plan. The following changes with respect to Revision 67 have been made:

1. Outage 222 will now start on 10 April 2017.

- This is due to the late return to service after Outage 221.

2. The duration of Outages X22 have been reduced from 53 days to 45 days on the plan.

- This is due to the Outage reduction initiative to move Koeberg towards our business plan target of 35 days.

- All modifications, and most of the major work scope, have been postponed from X22 to X23.

- The station objective is to achieve a 35 day outage for X22.

3. The Steam Generator Replacement project has not been assigned to any specific Outage.

- The position is that the SGR will be scheduled into the next available outage once we have clarity on the SG replacement schedule.

4. Outages X23 have been reduced from 130-days to 90-days.

- This is due to the removal of the SGR from outage X23.

- Various RPV inspections, which were not completed in the X21 Outages, have been moved into Outages X23 .

- Outages X23 also have many modifications, those that slipped from Outages X21 as well as those that had been scheduled in Outage X22.

5. The duration of Outages X24 have been reduced from 48-days to 35-days

- This is to bring the Outage durations in line with our outage strategy, outage X24 is scheduled to be a "refueling only" Outage.

Please note that this plan is being displayed in the ESKOM financial year format and a calendar year version is also included for ease of reference.

If there are any queries regarding Revision 68 of the Production Plan please contact C.M.Forsyth or JB van Wyk.

Yours sincerely

Signed
MR Bakardien
27-7-2016

GENERAL MANAGER: KOEBERG POWER STATION

The full text of this document can be accessed here – PDF.