When conventional forms of activism don’t reach the ears of a democratically elected government, the courts can provide a platform to hold the state accountable. A High Court ruling against the South African government’s efforts to buy in nuclear power is a case in point, writes Leonie Joubert.

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In the first week of May 2017, a rag-tag group of activists who had been gathering at the feet of the bronze horse and-rider outside Parliament in Cape Town, finally called to an end its weekly rush-hour vigils. For over two years, they’d been gathering there every Wednesday morning, brandishing placards that read things like ‘Hoot if you support renewables!’ and ‘No nuclear deal!’

Their final assembly outside Parliament was celebratory. A week earlier, the Western Cape High Court had ruled that the South African government’s attempt to buy nuclear energy generation technology from the Russian government had to be halted because it found that the state had not followed its own procedures around accountability, transparency, and public participation.

This regular gathering of volunteers was a small and publicly visible part of a much wider, and longer-term strategy by various activist organisations to represent the interests of the people against the state’s nuclear power ambitions.

The court case itself was a milestone in nearly two decades of campaigning, primarily by the energy activist group Earthlife Africa (ELA), with recent support from SAFCEI (the Southern African Faith Communities Environment Institute), and it was not the first time that the courts were used to scupper the state’s nuclear plans. In 2006, ELA achieved a similar end by challenging the processes around the environmental impact assessment for a proposed demonstration ‘pebble bed modular reactor’ that was scheduled to be built at the Koeberg nuclear power station outside Cape Town.

In both litigation cases, the court action wasn’t about putting nuclear technology on trial, explains attorney Adrian Pole, who led the legal team in both these public interest law suits. It was about using the courts to test whether the state’s decision-making processes were ‘lawful, constitutional, and properly informed’. If a democratically-elected government is going to spend a trillion Rands’ worth of public money on infrastructure develop, activists argued, it needs to consult with the public about whether the technology is affordable, appropriate, and in everyone’s best interests.

For ELA former director Dr Tristen Taylor, who spearheaded the most recent litigation drive alongside SAFCEI’s Liz McDaid, the court action was part of the kind of multi-pronged campaigning needed to slow or halt a mega-project of this scale.

Secrecy, transparency, and the courts as public allies

The courts are increasingly becoming the stage upon which activists are seeking to redress climate justice issues, explains Amanda Luxande, programme manager at the Cape Town office of the Heinrich Böll Foundation (HBF). The HBF supported ELA’s campaign by providing some of the funding needed to cover the litigation process.

A recent survey of the status of climate change litigation around the world by the United Nations Environment Programme and the Columbia Law School confirms Luxande’s view. The study documents multiple lawsuits initiated by citizens and environmental groups, demanding various governments take responsibility for the damage caused by historic greenhouse gas emissions (GHG), or take action on cutting countries’ GHGs. Increasingly, lawsuits are challenging governments’ failure to tackle sea level rise; or they are demanding compensation to farmers for climate-related losses; or trying to halt various carbon-intense developments such as the building of new airports or coal-fired power plants, or allowing new oil drilling.

The number of litigation cases were found to be three times higher in the United States than else, although the number of countries with such cases are occurring ‘has tripled since 2014’, reports the UK newspaper, The Guardian.

The latest ELA nuclear court case, initiated in October 2015 and concluding with the ruling on 26 April 2017, is in step with this broader trend. While some experts, including Luxande, are concerned that this trend towards litigation is the result of activists responding to ‘shrinking spaces’ for conventional forms of civil engagement, Taylor argues that the ELA nuclear case was always part of their intended strategy for tackling government on the nuclear issue.

‘Secret’ and ‘Unconstitutional’: the nuclear deal up close

The specifics of the April 2017 High Court ruling are technically complex. Essentially, it overturned an agreement between South Africa and Russia, which committed SA to buy up to 9.6 gigawatts’ (GW) worth of nuclear power capacity from ROSATOM, Russia’s state nuclear energy corporation. The deal was made in secret between the then SA Minister of Energy Tina Joemat-Pettersson and ROSATOM in September 2014, and it hid behind a legal technicality: the Department of Energy (DoE) should have been tabled the agreement under a section of the Constitution that would have called for Parliamentary approval, and thus allowed for public engagement in the process, before it could become binding for South Africa (section 231(2) of the Constitution). Instead, it was tabled under another (section 231(3)), which didn’t call for transparency requirements.

This deal only came to light here because Russian media broke the news, and it filtered into international headlines. As soon as the story broke, it gave ELA the ammunition it needed to begin litigation.

Court papers were first filed in October 2015, following almost a year of written correspondence with the DoE and other state departments, which were largely fruitless, explains Pole.

Taylor reiterates the point, though, that the court case wasn’t initiated because activists had used up all other options. By keeping its decisions secret, and avoiding public participation and parliamentary oversight, the DoE gave ELA the leverage it needed in order to take the matter to court. Litigation dovetailed with various other anti-nuclear campaign strategies: grassroots activism within communities; media campaigning; lobbying government directly through letters and requests for meetings; and taking part in the formal public participation processes attached to various policy drafting processes, such as engaging with the design of the DoE’s Integrated Resource Plan.

Putting the brakes on corruption

In ELA’s bid to take on the latest nuclear procurement plan, it joined forces with other climate and green energy activists, including the HBF which contributed with funding, strategising, and mobilisation, and SAFCEI, which brought with it a faith-based constituency.

They then rallied the support of other civil society organisations, whose agendas were about wider issues of social justice, democracy, transparency, and development concerns such as state delivery on education and healthcare, explain SAFCEI’s Liz McDaid and ELA’s Tristen Taylor.

ELA and SAFCEI framed the state’s nuclear procurement plan not as an environmental cause, which is often seen as a middle class issue in South Africa, and therefore supported by a largely white population in this post-apartheid climate.

As Pole explains, they positioned it rather as a question of whether foundational constitutional principles of ‘openness, responsive, transparency, and accountability’ were being upheld by government. Organisations such as OUTA (Organisation for Undoing Tax Abuse), Equal Education (an education advocate), and Right2Know (concerned with access to information, transparency, and freedom of the press), brought their own grassroots bases to the cause.

The risk of corruption is particularly relevant in the case of mega-projects. Mega-builds like this are noted for their inefficiencies associated with cost- and time-overruns, but also for the potential for corruption as there are invariably many lucrative contracts and sub-contracts involved. The international nuclear industry is also notoriously secretive, making accountability and transparency difficult.

Concerns about ‘state capture’ were beginning to surface, firstly in various investigative media reports, but then consolidated in a 2016 report by the Public Protector’s office which looked into the ‘improper and unethical conduct’ of President Jacob Zuma in his dealings with private individuals with interests in the mining sector. The notion of ‘state capture’ – where political functioning and decision making is corrupted by private interests, which influence the state to their own advantage – became synonymous with Zuma and his relationship with three brothers from India, the Gupta family. The report confirmed that several Cabinet re-appointments, as well as the increasing bias of the state broadcaster, and the appointments of senior executives in the state utility Eskom, were heavily influenced by the Guptas, who were leveraging their political influence in order to further their own gains in the coal mining sector.

These findings were further corroborated in another recent piece of analysis. The report, Betrayal of the Promise: How the Nation is Being Stolen, was published by the Public Affairs Research Institute in May 2017.

The link between the Gupta family and SA’s nuclear procurement first surfaced when investigative reporting showed that the Guptas had interests in a uranium mine, and would thus benefit from South Africa’s expanded nuclear power infrastructure. But investigations also showed that Russia was exporting its nuclear technology aggressively in order to boost its own economic growth.

One particular event solidified the corruption claims in relation to the nuclear deal: in December 2015, finance minister Nhlanhla Nene was fired suddenly by the president, and replace by a little known backbench Parliamentarian Des van Rooyen. This came as the secret nature of various ministerial determinations on nuclear prior to December 2015 were emerging, and shortly after Nene had been outspoken against the nuclear deal to Cabinet, on the basis on its unaffordability.

An overnight collapse of the Rand against international currencies, and an outcry from the press, the business community, and opposition parties, forced Zuma to re-appoint a previous finance minister, Pravin Gordhan, to head the Treasury. But Treasury remained the only major government institution that was seen as an impediment to this deal going through, and Gordhan was also opposed to it. He too has subsequently been fired (in March 2017), and has since been publicly outspokenly about the links between his firing, and the ‘capture’ of the presidency by private interests.

As the various reports on state capture come to light, they help explain what court proceedings revealed about the degree to which the state embarked on its procurement process in secret and contrary to its obligations for accountability and transparency on such matters.

Litigation as activism: useful but costly

Taking a public interest case like this to court is part of a ‘symbiotic’ relationship with other forms of activism, such as lobbying government directly, or driving education campaigns through the media, or engaging in policy design through public participation processes. But, explains attorney Adrian Pole, litigation is also a way of enforcing a client’s rights, particularly in a situation where all other efforts have been exhausted.

In this case, the client was the people of South Africa. And the state was clearly embarking on its own agenda, regardless of what the people were demanding.

The tricky thing with litigation, explains Pole, is that it needs highly skilled and technically well-equipped individuals, and it takes time.

‘So whenever an issue like this gets to the High Court, it becomes expensive,’ he says.

ELA’s legal team included Pole, as the attorney of record, supported by attorney Angela Andrews from the Legal Resources Centre (LRC), as well as four advocates, and a candidate attorney.

Typically, these kinds of legal experts will charge half the going rate of commercial lawyers. In this case, they also gave ELA discounted rates. And once funds ran out in December 2016, the team clocked up many additional hours on a ‘contingency rate’. This meant that most of the hours put in between mid-December 2016 and the final court ruling in April 2017 were done in the hope of recouping costs later, but with no guaranteed of achieving that.

While the court eventually ruled that the DoE must cover ELA’s legal costs, that might not necessarily result in all the lawyers’ time getting remunerated. Legal action like this can be risky for both the legal team, as well as the clients, he says.

‘Ideally, from an activist position, you want to achieve your goals through public participation, but if government appears intent on a specific programme, then you have little choice but to litigate.’

Prior to litigation, the ELA legal team wrote a series of letters to the DoE, requesting engagement, but ‘did not receive a substantive response’, says Pole. Once legal proceedings got underway, they were then able to capitalise on the ‘right of discovery’, where the court applicant can request certain information, internal departmental communications, and other documentation that they might otherwise have struggled to access. Much of this material indicated there were problems with how the DoE handled both the administrative side of things (the public processes surrounding the drawing up of the IRP), and at an executive level (various ministerial decisions on nuclear were made in secret, and pushed a political agenda).

In a situation like this, Pole explains that it is then up to the courts to determine whether those administrative and executive processes have been ‘lawful, rational, and reasonable.’ In the end, the High Court found that the state had flouted its own democratic processes, and had to start the whole nuclear shopping process from scratch again, because its procurement processes until then had been unconstitutional and unlawful.

End of the road for nuclear?

The public support for the demonstrations outside Parliament, which SAFCEI’s Liz McDaid reported had gained such momentum over two years, seemed to reflect that the South African public was waking up to the problems with the nuclear procurement process. ELA’s Tristen Taylor says this didn’t happen in a vacuum: this was the result of sustained campaigning against nuclear over nearly 20 years.

What will happen now, following the court ruling?

Kumi Naidoo, formerly of Greenpeace, says this victory has bought civil society at least another year, as government will need to start the procurement process from scratch. ELA’s current Johannesburg branch coordinator Makoma Lekalakala says the next step is to ensure that the DoE is transparent in all its future procurement processes, and that the next draft of the IRP, which is due to be presented to Cabinet later this year, has included all the feedback given to the DoE in its public participation held in late 2016 and early 2017.

However, Taylor believes that this court ruling may finally be the end of the state’s nuclear ambitions: it is only President Jacob Zuma and his close circle who have vested interests in following through with this deal. Once Zuma’s terms in office end in 2019 – as both ANC president, and president of the Republic – there won’t be anyone left in the ruling party to take the nuclear baton from him.

‘Yeah,’ says a tired Taylor over the phone, ‘ELA kicked ass. We really kicked ass.’