DA secures significant victory in legal challenge against R200 billion 2 500MW nuclear power procurement

20 September 2024

The Democratic Alliance (DA) is pleased to announce a major victory in its ongoing legal challenge against the government’s determination to procure 2 500MW of nuclear power, a project valued at hundreds of billions of rand.

On Friday, 16 August 2024, the DA received formal communication from the State Attorney, representing the Minister of Electricity and Energy, confirming that the Minister has withdrawn the determination published in January 2024. This follows the DA’s court application, launched on 7 March 2024, challenging the legality of the nuclear procurement, which would have been the largest public procurement in South Africa’s history.

The DA argued that the determination was unlawful for multiple reasons. Critically, the National Energy Regulator of South Africa (NERSA), which had concurred with the Minister’s decision, relied on substantive information from the Minister of Energy that was provided two years after NERSA concluded its public consultation process.

This meant that stakeholders were deprived of the opportunity to engage with key aspects of NERSA's concurrence, including the projected costs and demand for nuclear energy. The DA raised concerns about the lack of transparency and public participation in a matter of such national and constitutional importance.

The case had been set for an expedited hearing before a Full Court of three judges of the Pretoria High Court in October 2024. However, the Minister’s decision to withdraw the nuclear determination, along with an offer to cover the DA’s legal costs, has rendered the need for the hearing unnecessary.

The official withdrawal of the 2 500MW nuclear determination was gazetted on 6 September 2024 (GN5189 of 6 September 2024), marking a significant victory for transparency, accountability, and the rule of law in South Africa’s energy sector. The DA’s legal action was instrumental in ensuring that the public's voice is considered in decisions of this magnitude.

This outcome is a testament to the DA’s unwavering commitment to protecting the public interest, ensuring that energy procurement processes, particularly those involving nuclear energy, are subject to thorough legal scrutiny and meaningful public participation.

We will remain vigilant in upholding the principles of good governance and fact-based decision-making, especially in matters of national importance, to ensure South Africa's energy future is shaped by policies that reflect transparency and procedural fairness.

Issued by Kevin Mileham, DA Spokesperson on Energy