The UDM, other opposition parties, NGOs and individuals “want to know precisely” what commitments were made by SA to European and the US governments regarding the $8.5bn (R154.9bn) package pledged at COP26 for its just energy transition (JET), the Pretoria high court heard on Friday.
The applicants said the information was necessary for their load-shedding case against Eskom and the state.
On Friday, the court handed down judgment in Part A of the case, giving an interim order that minister of public enterprises Pravin Gordhan must, within 60 days, “take all reasonable steps” to prevent any interruption of electricity supply to public health institutions, schools and police stations. The interim order will last until the court has decided Part B.
In Part B, the applicants have asked the court for several orders, including the setting aside of President Cyril Ramaphosa’s decision to “accept an amount of $8.5bn in loans from the US and other European countries with the condition that South Africa will close down its power stations”.
They have also asked the court to set aside the decision to close down the Komati, Camden, Hendrina and Grootvlei power stations and to order they are brought back into operation.
Their counsel, Tembeka Ngcukaitobi SC, said: “We are in the dark about the relationship between the government and the European and American powers around the $8.5bn. The information that is available ... is that the government has taken money, or has agreed to take money, in exchange for decommissioning power stations ... The condition is that it must shut down power stations; that is what has been announced publicly by people like [US] President [Joe] Biden,” he said.
Responding to the application to compel disclosure on the
government’s part, the state did not provide any documents on the basis that no decision had been made.
In an explanatory affidavit, Rudi Dicks, who co-ordinates the technical secretariat for the National Energy Crisis Committee, said when cabinet endorsed the JET investment plan, it was only to “permit the firming up of a plan to finance the JET, including through the potential utilisation of the $8.5bn finance
package”.
The cabinet endorsement of the investment plan did not entail a formal agreement with immediate consequences, he said. Decisions to decommission certain power plants predated the endorsement and “there is no condition that the funding, when it is advanced, will be on condition that coal power stations are shut down”.
In written legal argument, the president’s counsel, Marumo Moerane SC, summed up saying that it was “unknown when, or even if, a formal agreement will be concluded to accept the $8.5bn”. The scope and nature of the terms underpinning any agreement were also “unknown”, said Moerane.
“There is, therefore, no final decision capable of review.”
But Ngcukaitobi said whether there was a decision to review was something for the court to decide. It may be that the president “subjectively and in good faith believed” no decision had been taken. Yet it may be that, in law, there was a decision. This was something that could be decided only once all the documents were before the court, he said. “Plainly, there are documents that have been produced,” he said. These must be put before the court.
Corruption at Kusile
He also argued that Eskom should provide documents related to corruption at Kusile, even though Eskom said these were irrelevant to the orders the applicants sought.
In the application to compel, the UDM’s attorney Eric Mabuza said the power that was to be generated by Kusile and Medupi was pertinent to the decision to decommission the other power stations, making documents related to the two relevant and therefore disclosable in the case.
“The rationality and lawfulness of Eskom’s decision to close power stations cannot be properly interrogated without a full understanding of the reasons why Kusile failed to function optimally,” he said.
The applicants asked for a list of documents Eskom described as “eye-watering”.
They included documents relevant to the procurement process for the design and commission of Kusile, “any and all records relevant to the construction of Kusile”, all records related to the budget of the construction of Kusile and construction orders for Kusile, and any other contractual agreements between contractors and Eskom related to Kusile.
Eskom has provided the court with more than 2,000 pages. Eskom’s counsel, Azhar Bham SC, said taking just one category of the new information sought could take months: “Trying to put all that together (information surrounding Kusile) ... it may take you a better part of a year to do that. You may need to build a facility simply to store the documents. I’m trying to illustrate to you the magnitude of the task — practically — and how a request so widely framed can never come close to relevance to what you’ve seen in the notice of motion.”
The court will deliver its ruling on May 13.
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