In 2013, the Minister of Energy determined, in terms of section 34 of the Electricity Regulation Act, that South Africa required 9.6 gigawatts of nuclear power, and further that the Department of Energy should begin the procurement process for same.
In this review application, Earthlife Africa – Johannesburg and the Southern African Faith Communities’’ Environment Institute (“the Applicants”) sought to have various Inter-Governmental Agreements (“IGA’s”), and the subsequent tabling thereof in Parliament, reviewed in terms of Administrative law. Such IGA’s were signed by the President and tabled by the Minister in Parliament in terms of section 231 of the Constitution, in advancement of the so-called “Nuclear Deal”.
The Minister of Energy and the President of the Republic of South Africa, together with the National Energy Regulator of South Africa and the Speakers of both houses of Parliament and Eskom Holdings (SOC) Ltd. (“the Respondents”), opposed the review application on the basis that the Applicants failed to join the United States of America, the Russian Federation and the Republic of Korea to the proceedings as these states were the relevant counterparts in the three IGA’s.
Further, the Respondents argued that the three IGA’s are international agreements and therefore are not justiciable by a domestic court.
In addition, the Respondents contended that the Russian IGA was an “international framework agreement for cooperation between sovereign states” and not a procurement contract and further, in any event, the Applicants have no standing to claim relief in relation to the Russian IGA as same was a matter for Parliament to address with the Minister.
The legal questions that were dealt with in the matter were:
- whether the Minister and the President breached statutory and constitutional prescripts in making the 2013 and 2016 determinations in terms of section 34;
- whether the President and the Minister breached the Constitution in deciding to sign the IGA with Russia and then tabling it under section 231(3) of the Constitution instead of section 231(2); and
whether the Minister breached the Constitution in tabling the USA and South Korean IGA’s two decades and almost five years respectively, after they had been signed.
The Court dealt with the preliminary issues raised by the Respondents, beginning with the the non-joinder of the three states with which the President signed the IGA’s. The Court considered various cases together with PAJA in this regard, and reasoned that in the circumstances, it was not asked to invalidate any international agreements, or to determine the validity of the IGA’s on an international level. On the contrary, what was asked of the court was to determine a matter of domestic constitutional law.
In addition, the court considered the standing of the Applicants in the matter. Having considered section 38 of the Constitution together with Economic Freedom Fighters v Speaker, National Assembly and Others, stayed true to the reasoning in International Trade Administration Commission v SCAW South Africa (Pty) Ltd, finding that the Applicants have standing in their own right and it is also in the public interest to challenge the Constitutionality of the tabling of the IGA’s before Parliament.
In relation to the justiciability of the Russian IGA, the Court reasoned that it is permissible for the Court to interpret the IGA to determine its proper tabling procedure and therefore whether the Minister acted unconstitutionally or not. Consequently, the argument by the Respondents that the Russian IGA is non-justiciable is without merit. Further, upon proper construction of the terms of the IGA, it is clear that the IGA was not within the class of international agreements that merely required tabling before Parliament for them to be binding. Accordingly, the Court found that the Minister’s decision to table the IGA in terms of section 231(2) of the Constitution was irrational.
Although the Court rather decided to apply judicial restraint and not to address the issue of the lawfulness of the signature of the Russian IGA by the President, the Court considered the requirements of section 231(3) at length, with emphasis on the requirement that the IGA was to be placed before the relevant house(s) of Parliament within a reasonable time from the signature thereof, and reasoned that to table the American and South Korean IGA’s 20 years and almost 5 years after the signature thereof, was in violation of the Constitution, leaving them to be set aside.
In light of the above, the court held that the Minister’s decision to table the Russian IGA before Parliament in terms of section 231(3) of the Constitution was unconstitutional and accordingly reviewed and set it aside.
Further, the Minister’s decisions to table the American and South Korean IGA’s before Parliament (given the Minister’s delay in doing so), were found to be unlawful, unconstitutional and the Court accordingly reviewed them and set them aside.
This matter dealt specifically with the manner in which major procurements with inter-governmental applications are to be handled in terms of the domestic processes therefor, and also with the obligations of the Executive regarding the signature and tabling of inter-governmental agreements before Parliament for such agreements to be valid.
Written by Kgomotso Morudu, Candidate Attorney and supervised by Tenielle Combrinck, Associate, 30 October 2017.