The Western Cape High Court has declared Mineral Resources and Energy Minister Gwede Mantashe’s decision to dismiss National Nuclear Regulator (NNR) board member responsible for communities Peter Becker from his duties, unlawful, unconstitutional and invalid.

Becker was discharged from his position on February 25, 2022, following alleged conflict-of-interest statements that posited that hearings into a new nuclear power station at Thyspunt were serving to distract attention from then problems at the Koeberg nuclear power station.

Several civil society organisations became concerned in 2020 as the community representation role within the NNR was vacant for an extended period of time, leading to Becker’s nomination and subsequent appointment.

Mantashe appointed Becker as NNR nonexecutive director in June 2021, representing communities who may be affected by nuclear activities. His appointment emanated from Becker’s nomination to this position by a number of civil society organisations, including the Koeberg Alert Alliance (KAA), the Southern African Faith Communities Environmental Institute (SAFCEI) and the Pelindaba Working Group.

At the time of his NNR appointment, Becker was also KAA spokesperson – a position he held while serving with the NNR. The court order states that the KAA, an informal group of over 1 000 individuals, are concerned about safety issues related to the continued use of nuclear power in South Africa, calling for a review of such activities.

At the time of his appointment, Becker said, his associated KAA viewpoints were known by Mantashe and were not hidden.

A joint statement by the KAA, SAFCEI and the Organisation Undoing Tax Abuse (Outa), says that the first board meeting attended by Becker in July 2021 resulted in a complaint being initiated by Eskom that Becker’s apparent “well known anti-nuclear stance was a conflict of interest”. This was followed by a resolution to get a legal opinion to inform the NNR board.

Nonetheless, Western Cape High Court Judge J Mantame says, in a judgment delivered on January 19, that Mantashe’s discharging of Becker with immediate effect was unlawful, unconstitutional and invalid in terms of Section 172(1)(a) of the Constitution.

As such, Mantashe’s discharging of Becker has been set aside, leaving him the authority to resume NNR nonexecutive director duties. Mantame also ordered Mantashe to pay costs of the court application and two counsel.

“I believed that [Mantashe] did not understand the law correctly when it comes to the NNR, and that it was in the public interest to get clarity from the courts. This ruling is strongly supportive of that belief,” says Becker.

SAFCEI executive director Francesca de Gasparis says that since Becker’s unlawful removal in January 2022, there has been no community representative on the NNR. “As a result, communities’ interests have not been represented in this space, and once again we have been excluded from governance and decision-making in this critical energy space.”

Green Connection strategic lead Liz McDaid says, “As one of the many civil society activists who challenged the Zuma-era nuclear deal, this judgment is a great step forward. Good governance means effective oversight and you cannot have effective oversight if those who interrogate nuclear decisions, demand accountability and promote safety are targeted.”

Regarding keeping his role as KAA spokesperson when he was appointed to the NNR board, Becker says that if there was the expectation he needed to relinquish his role within the KAA, such a request should have been made when he was offered the position, or at least, as part of being inducted into the board. “This could have been discussed with me.” However, he says neither of these were done.

Nonetheless, Becker states that, based on guidance from the judgment, he will no longer function as official KAA spokesperson.

350Africa.org South African team lead Glen Tyler says it is “amazing” that a Minister needs to be taken to court to understand that having a community representative with opposing views on a regulator’s board is okay. “This is more evidence of Mantashe’s biases against a quick and just transition to renewable energy.”

Current KAA spokesperson Lydia Petersen says a recent report by the International Atomic Energy Agency found 14 safety issues at Koeberg, including a leak that allegedly resulted in a radioactive substance escaping through cracked concrete.

“Communities are concerned about the safety of the plant and having Becker’s dismissal set aside is a reassurance to those communities that at least there will again be someone on the NNR board whose primary duty is to represent their concerns,” she says.

Petersen is also concerned that information about the safety of the life extension application is being withheld from the public. “The safety case as released by Eskom is heavily redacted, making it difficult for the public to be confident about the preparedness of the plant for a safe life extension,” she said.