Despite two rulings from the Western Cape High Court saying that National Nuclear Regulator (NNR) board member and civil society representative Peter Becker’s dismissal was “unlawful, unconstitutional and invalid”, Minister Mantashe and the chairperson of the NNR Board are both now attempting to take the matter to the Supreme Court of Appeal (SCA).

In the 26 May 2023 High Court ruling, Judge Babalwa Mantame criticised the respondents, stating: “It appears that the respondents decided on reading the judgment of this Court selectively” and denied Mantashe and the NNR the right to appeal. However, both the Minister and the NNR chairperson have now indicated they will be requesting direct access to the SCA.

Background to the case

In 2020, several civil society organisations raised concerns that the community representative position on the NNR board was vacant. Following this, nominations were sent to Minister Mantashe, and Becker was subsequently appointed in June 2021. At his first board meeting in July 2021, a complaint initiated by Eskom that Becker’s “anti-nuclear” stance was a conflict of interest was discussed, according to papers submitted to the court.

At the same meeting, Becker refuted the allegations made against him and later obtained a legal opinion at his own expense as to why the allegations were without merit. This was sent to the NNR Board as well as the Minister. After extensive correspondence, and following a recommendation by the NNR Board Chair, Dr Thapelo Motshudi, Becker was dismissed from his position in February 2022.

The matter was taken to the Western Cape High Court in November 2022, and in January 2023 it ruled that the decision to fire Becker from the NNR board was unlawful, procedurally unfair, and that the Minister acted in bad faith and with ulterior motives.

Recent news

The Minister, the NNR and its chairperson subsequently lodged an application for leave to appeal to the SCA. At a hearing on 26 May, Judge Mantame stood by her initial ruling saying that Mantashe and the NNR had “not taken this court into its confidence” as to any compelling reasons for an appeal. Judge Mantame refused to grant leave to appeal and again ordered the Minister and the NNR to pay the costs of the application.

Becker said at the time that he had hoped that this "very clear" judgment would be accepted by all the parties concerned so that he could continue with his duties on the NNR Board.

Becker was initially represented by Chennells Albertyn law firm which handled the case during the initial hearing resulting in a judgment in Becker’s favour. The case has since been taken on by leading law firm Webber Wentzel which is handling the case pro bono. The advocates are Geoff Budlender SC, assisted by Mitchell de Beer, who have taken the case on a contingency basis.

“We took this on because it is an important case about the role of a director of the board of the National Nuclear Regulator who is appointed to represent communities affected by nuclear activities,” says Webber Wentzel partner, Dario Milo. “The relevant legislation sanctions diversity of voices on the board, and the need for critical perspectives, all aimed at ensuring that nuclear activities are conducted in a safe manner.  Thus the Act itself promotes the ability of board members to express their views freely, and this lies at the heart of the case.

“The Minister discharged Mr Becker for alleged misconduct, including his public statements, but this was unlawful, as the High Court found. In the words of the High Court: "Having Mr. Becker on the board should have enhanced the board and brought fresh and robust ideas on the table for discussion."

“If the SCA refuses leave to appeal, the Minister and the NNR could apply to the president of the SCA who may refer the case to the SCA for reconsideration, and thereafter there is the possibility of an appeal to the Constitutional Court,” says Milo.  

Civil society responds

Mariette Liefferink, who was appointed as community representative on the NNR Board in 2010, is concerned about there being no community representative on the NNR Board for the past 18 months. “The lack of civil society representation on the Board of the NNR undermines the democratisation and independence of the NNR and deprives civil society of a voice in matters pertaining to nuclear waste management including the management of radioactive mine residue areas and nuclear safety,” says Liefferink.

Lydia Petersen, spokesperson for the KAA, is worried about safety issues at Koeberg. “The refurbishment of Koeberg has been beset with delays and this raises safety issues, and Eskom is rushing to complete the job before the expiry of Koeberg’s current licence,” says Petersen. “Eskom is also under huge pressure to bring power stations online, which means that the highest level of oversight is crucial to ensure safety standards are followed despite this pressure.

“The NNR Act specifies that communities have a right to representation on the Board, but it seems that there are no consequences if this is ignored. The Koeberg nuclear plant is uncomfortably close to many densely populated communities, and it is unacceptable that their representative is being prevented from carrying out his duties,” says Petersen.

“It's upsetting that despite all civil society protests and comments, we still do not have a community representative on the NNR board” says intersectional justice youth activist, Gabriel Klaasen.“Accountability and transparency are key tools to meaningful and fully informed participation, which is our right, and yet the minister of the DMRE and the NNR are doing all they can to undermine that right,” says Klaasen.

“Community representation on public boards, like the National Nuclear Regulator is paramount given the crisis we are in,” says Francesca de Gasparis, Director of the Southern African Faith Communities’ Environment Institute (SAFCEI) . “Poor energy decision-making done in secret is having serious repercussions daily on South Africa's electricity reliability.

“The courts ruled that the dismissal of Peter Becker from the NNR Board by Minister Gwede Mantashe was unlawful and invalid, and they gave no leave to appeal. Yet the NNR and the Minister are both wasting more public funding to appeal at the Supreme Court level. This is an assault on our democratic right to have our voices heard and be represented in these important governance decision making bodies. When will we be allowed to be represented, as enshrined in our democracy, and have communities express their concerns without it having to go to court?” says De Gasparis.

“Peter Becker was chosen to represent affected communities on the NNR Board and because he did not support the Minister's views on the desirability of nuclear energy for South Africa, the Minister has illegally and summarily thrown him off the Board,” says environmental sociologist and long-standing observer of the nuclear industry, Dr David Fig.

“Communities feel he should be sitting on the board, but Minister Mantashe and the NNR Board Chair are doing everything they can to prevent this. The country should be aware of this injustice and support Mr Becker’s legal efforts to resume his rightful position on the Board,” says Fig.

“The definition of madness is continuing to do the same thing but expecting different results,” says The Green Connection's Strategic Lead, Liz McDaid. “What conclusion should we draw when Minister Mantashe continues with court action for a third time after losing not once but twice in his attempts to unseat the community representative on the NNR board? And why must our tax money be wasted on continuing to pursue this matter in the Supreme Court?” says McDaid.

Next steps

The papers will have to be sent to the SCA within a month of the hearing, in other words by 26 June. Thereafter the SCA may simply refuse the request, or may agree to have another hearing on the matter in the Bloemfontein court. Meanwhile, Becker’s term as a Board member is running out, as it expires in June 2024.